Competition law

In 2021 we predict

3 new CMA investigations into Big Tech players.

The picture in 2020

Competition enforcement beyond investigations

• Both the European Commission (‘EC’) and the UK CMA want to add more strings to their bow to better tackle “Big Tech”. The results of its market study into online platforms and digital advertising led the CMA to conclude that existing competition laws are not fit for purpose. Competitors can no longer compete on equal terms and tech giants’ market position is a potential barrier to market entry. This echoes the EC’s findings across several Big Tech antitrust investigations in recent years.
• CMA’s Digital Markets Taskforce advice to UK Government: Establish a Digital Markets Unit that will be able to carry out ‘pro-competitive interventions’ in digital markets, impose certain requirements on players with ‘significant market status’ and enforce such players’ compliance with a digital activities code of conduct to prevent anti-competitive outcomes arising in the first place.
• EC proposal: A “New Competition Tool” within the proposed Digital Markets Act with similar powers to intervene in markets to address structural competition issues, especially for markets at risk of “tipping”.

Scrutiny of Big Tech business practices

• 4 new investigations into Apple: the EC opened 3 app store antitrust investigations looking at Apple’s in-app purchasing mechanisms, music-streaming and e-books provision, and 1 new mobile payments investigation.
• 2 new investigations into Amazon: the EC’s scrutiny has been directed at Amazon’s use of non-public independent seller data on Amazon Marketplace and through its Buy Box mechanism.

More tech transactions subject to national security and FDI reviews

• Investments in cutting-edge UK tech companies will face the additional hurdle of the UK’s National Security and Investment Bill: investments in companies active in AI, advanced robotics, communications, computing hardware, data infrastructure and many other sectors will be subject to mandatory notification to BEIS for review. Review powers will apply retroactively from 12 November 2020.

Looking ahead to 2021

New regimes

• 2021 will see the announcement of a possible new regulatory regime for digital markets.
• EU’s New Competition Tool could become law by the end of 2021.
• UK’s FDI regime will likely become law in the first half of 2021 (but applies retroactively).

Investigations

• We predict 3 new CMA investigations into Big Tech business practices, as the CMA tries to make its mark on the antitrust world stage post-Brexit. Many companies will now face parallel investigations in both the EU and the UK.
• The results of the EC’s “Internet of Things” sector inquiry will lay the groundwork for the EC’s position on IoT-related antitrust work for 2021 and beyond.
• We predict at least 1 landmark antitrust investigation into the use of algorithms by businesses. The CMA has already highlighted the work its DaTa Unit is doing to examine the impact of algorithms on competition and consumers.