Merger control in the UK and EU is increasingly framed as a means of promoting competitiveness and economic growth, extending beyond its traditional focus on preventing harm to competition and consumer welfare. This article examines whether, and to what extent, merger control is institutionally well suited to advancing three macroeconomic objectives now emphasized by policymakers: managing inflationary pressures and expectations, attracting investment, and fostering innovation through dynamic competition assessment. Drawing on economic theory, institutional design, and recent case law, it argues that while political discourse, policy, and soft law developments increasingly position merger control as a growth-supporting instrument, its institutional architecture may limit its capacity to deliver these outcomes directly. In practice, attempts to mobilize merger control in pursuit of these aims reveal trade-offs between predictability, flexibility, and the assessment of inherently uncertain dynamic effects. The article concludes that merger control’s most durable contribution to economic growth remains indirect, through maintaining competitive market structures that support growth over time.
This article examines how the EU Merger Regulation, the Foreign Subsidies Regulation, and the EU FDI screening framework are reshaping the governance of mergers and acquisitions in Europe. It argues that EU competition policy is becoming more politically embedded, as deal reviews increasingly reflect concerns around strategic autonomy, economic security, resilience, and industrial policy. This does not signal a move away from rigorous legal or economic analysis or towards more arbitrary decision-making, but rather the emergence of a more cumulative and layered regulatory framework. The article considers recent developments in merger control, the FSR, and FDI screening and argues that, for companies pursuing transactions in Europe, securing approval increasingly requires not only strong legal and economic arguments but also a broader public affairs and communications strategy that anticipates the concerns of regulators, policymakers, investors, customers, and the media and explains how the transaction contributes to Europe’s wider policy objectives.
Courts and enforcers have taken inconsistent and unprincipled approaches to the anterior question in a Bronner ‘essential facilities’ analysis: at what level of generality must essential infrastructure be characterized? This article argues that an overbroad characterization of infrastructure as being ‘essential’ risks leaving dominant undertakings with an open-ended duty to deal, undermining the normative justification for the Bronner doctrine, whilst an overly narrow characterization might supplant the text of Article 102 TFEU and produce an expansive safe harbour that weakens the utility of the prohibition on the abuse of dominance more broadly. This article traces the emergence of the ‘reservation binary’, the proposition that the Bronner conditions apply only where a dominant undertaking has exclusively reserved an infrastructure for the needs of its own business, from its origins in the regulated monopoly context to its more recent extension in the digital platforms context in Google Shopping , Android Auto and Kent v. Apple . This article then considers issues in the application of the ‘reservation binary’ and ultimately suggests a mode of characterization that recognizes the underlying property rights at play.
In the last two years, there has been a substantial increase in the Competition and Markets Authority’s consideration and acceptance of the exiting firm scenario in its counterfactual assessments. This article explores these recent cases and any such learnings that can be taken from them, including whether a less restrictive CMA approach is here to stay.
This article examines the treatment of efficiencies against the backdrop of competition authorities’ growing interest in integrating industrial policy objectives into merger control. Although efficiencies are formally recognized under the UK and EU merger regimes, they have so far had limited influence on clearance decisions. The article considers whether, and how, economic tools can be used to account for efficiencies in merger assessments, focusing on three categories: economies of scale, innovation, and out-of-market efficiencies. In doing so, it draws on the economic literature and on merger cases from a range of jurisdictions.
In the ever-evolving landscape of UK competition litigation, the independence of expert witnesses, expert collaboration and procedural efficiency remain paramount. This article considers some notable, recent judgments of the Competition Appeal Tribunal, highlighting the on-going judicial appetite for concise, transparent and truly independent expert evidence. It also reflects on the increased willingness of UK Courts to critique experts in terms that can carry reputational and case‑management consequences. This article discusses how these recent judgments have been echoed in Practice Direction 3/2025 of the Tribunal and what these developments mean for the future conduct of competition cases – as expert credibility remains in the spotlight.
The use of slates of experts from different academic disciplines has been a relatively recent trend in competition litigation cases in the United States. In these cases, experts in, e.g., behavioural economics, computer science, intellectual property and app development, have been employed alongside more traditional competition economists and damages experts on behalf of both claimants and defendants. Recent judgments by the Competition Appeal Tribunal in Kent v. Apple and Le Patourel v. BT show that the CAT is receptive to the use of such experts in appropriate circumstances. This article examines the use of expert slates in those two cases and US v. Google (2020) to illustrate how experts of different disciplines can be used in a way that is mutually reinforcing. This article also analyses two recent Practice Directions made by the CAT which provide additional insight into how it might resolve the trade-off between keeping litigation costs down and the insights provided by experts from different disciplines.
Introduced by the Consumer Rights Act 2015, the UK voluntary redress regime for competition law infringements was intended to complement public enforcement and private litigation in delivering compensation to consumers and small- and medium-sized enterprises. A decade on, the statutory scheme has not ever been used. This article argues that this failure reflects misaligned incentives between investigated parties, the regulator and claimants, as well as an overly burdensome process, rather than a lack of need. While opt-out collective actions have expanded rapidly – the President of the Competition Appeal Tribunal has reported that there are currently over £150 billion worth of collective claims pending before the Tribunal – their cost, duration and low take-up rates where damages have been awarded limit their effectiveness as a universal redress mechanism. Drawing on case law, settlement experience and regulatory analogies, this article proposes reforms to incentives, processes and the powers of the Competition and Markets Authority that would enable voluntary redress to operate as a meaningful third pillar of competition enforcement.
The presumption of innocence is one of the principal tenets of the rule of law. Its application in competition law is, nevertheless, controversial. This controversy emerges from the utilization of presumptions by the European Commission to substantiate the suspected undertaking’s alleged infringements of competition law. The Commission’s draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings fail to provide a satisfactory solution. This article considers how this controversy may be mitigated through an appropriate derogation regime for deviations from the principle of the presumption of innocence in competition law. It places particular emphasis on a proportionality step, as the proportionality principle is overlooked in the Court of Justice’s case-law, especially in terms of the Commission’s ability to rely on presumptions to establish an infringement and the undertaking’s ability to effectively rebut them. It proposes the use of a ‘dynamic proportionality’ step, in which the Commission’s ability to apply presumptions and undertakings’ ability to rebut those presumptions can be justified by adjusting the financial sanctions imposed by the Commission to reflect the extent to which the Commission has proved an infringement without relying on presumptions.
Sir Marcus Smith, the past President of the Competition Appeal Tribunal, has criticized the way economists give evidence in competition cases. Namely, economists do not understand and adhere to the rules of evidence, and their use of statistical evidence differs from how lawyers and judges think about evidence. This article responds to these claims from the perspective of an economist expert witness and shows that the ‘interplanetary divide’ between lawyers and economists is not as stark as portrayed, but that there have emerged serious concerns about the way economists have given evidence in competition damages cases.
The Digital Markets, Competition and Consumers Act 2024 represents a transformative development in the UK’s consumer protection landscape. This article explores the changes introduced by this Act, with particular focus on the new direct enforcement powers granted to the Competition and Markets Authority.
The EU Foreign Subsidies Regulation (FSR) and the proliferation of foreign direct investment (FDI) screening regimes in Europe and the UK are reshaping the regulatory landscape for foreign investment, with Chinese investors often at the centre of scrutiny. This article outlines the FSR’s notification tools, the breadth of ‘foreign financial contributions’ and early enforcement practice. It also examines the EU’s coordination framework for FDI screening and the move toward a revised Regulation, alongside detailed case studies of France’s Minefi regime and, as a non-EU example, the UK’s National Security and Investment Act. The analysis shows that while these new and developing regimes should not impose insuperable obstacles for Chinese investors, much will depend on the specific circumstances of the deal and sectors involved, and adequate preparation will be key, with practical implications for cross-border investment strategy
This article examines the economic implications of the Competition Appeal Tribunal’s judgment in Gutmann v. First MTR South Western Trains , which clarifies the limits of the exploitative abuse doctrine under competition law. It addresses a key question arising from a case where there was no distortion of competition by a dominant firm: where does legitimate commercial conduct end and exploitative consumer harm begin? The Tribunal held that a dominant firm’s ‘special responsibility’ does not require it to maximize consumer outcomes. But what conditions are required to consider conducting an unfair trading practice? Three economic considerations emerge: commercial intent and proportionality, the distinction between the potential for welfare improvements versus unfair rent extraction, and the high evidentiary threshold. The article concludes that competition law protects against the abuse of market power, rather than all sub-optimal outcomes, reinforcing the boundary between competition enforcement and consumer protection regulation.
As the regulatory landscape in Europe continues to shift, competition authorities in the EU and UK are re-examining the role of efficiency and innovation in merger control. The European Commission and Competition and Markets Authority are under growing pressure to find the right balance between preventing mergers that could harm competition, while also recognizing that some deals may deliver long-term benefits for consumers by driving innovation and improving efficiency.
Cloud services have rapidly established themselves as a crucial resource for numerous economic operators globally, including those operating within the UK economy. Given the myriad of industries that can benefit significantly from investment and innovation in cloud services, it is imperative that competition is fostered and protected in markets providing such services. Mindful of this context, the UK authorities have investigated the competitiveness of cloud services in the UK. In 2023, Ofcom referred UK public cloud infrastructure services to the Competition and Markets Authority ('CMA') for a market investigation. Accordingly, the CMA was tasked with assessing whether ‘any feature, or combination of features’ of markets in the supply of public cloud infrastructure services ‘prevents, restricts or distorts competition’ in connection with the supply of cloud services in the UK or a part thereof. CMA’s market investigation focused on a number of key issues, including: the impact of AI; barriers to entry and expansion; technical and commercial barriers to switching; committed spend agreements; egress fees; and software licensing. The CMA adopted its Final Decision Report on 31 July 2025; it found that there are adverse effects on competition in the UK cloud services markets and it set out proposed remedies to address these effects. This piece focuses on the CMA market investigation into cloud services, specifically its evaluation of Microsoft’s software licensing practices. In particular, it examines the implications of the CMA’s finding that the software licensing practices in question harm competition in cloud services in the UK. This piece has two distinct aims. First, it seeks to determine whether, with the publication of its Final Decision Report (‘FDR’), the CMA has missed an opportunity to remedy in a timely manner practices that are harming competition in a crucial sector of the UK economy. Second, this piece aims to examine the potential relevance of the CMA’s findings of facts to possible future enforcement of the competition provisions contained within the UK’s Competition Act 1998. In pursuing both of these aims, this work takes the CMA’s findings of facts as a given. Ultimately this piece argues that: (i) the remedial approach outlined in the CMA’s FDR is far from ideal and should not have been adopted by the CMA; and (ii) although the CMA’s findings do not demonstrate that Microsoft has violated the UK competition provisions through its software licensing practices, they nonetheless provide considerable support for those who may seek to subject the practices at issue to competition law scrutiny.
Increasingly sophisticated algorithms have the potential to transform market dynamics and, as such, may require a revised response from a competition law perspective. This article aims to demystify common misconceptions about algorithms, elucidate some of the challenges they pose to competition law and propose viable solutions. The discussion focuses on the potential for self-learning algorithms to collude in more instances and without human interference, which could result in supra-competitive prices and reduced consumer welfare. Based on self-learning algorithms’ potential cost to consumers and their tension with the objectives of European competition law, the need arises for a nuanced legal framework to approach algorithmic tacit collusion. Algorithmic tacit collusion can be similar to a cartel in its effects. Regulatory intervention may, therefore, be necessary to ensure consumer welfare and functioning markets in the digital age. By broadening the interpretation of an anticompetitive concertation to establish collusive behaviour and harnessing procedural presumptions, algorithmic tacit collusion may be distinguished from instances of conventional tacit collusion and subsumed under the notion of a concerted practice in which the participants knowingly substitute practical cooperation between them for the risks of competition.
Defendants in private competition claims have typically relied on individually appointed economic experts. However, the Competition Appeal Tribunal’s 2023 judgment in Stellantis v. Autoliv marked the first instance where all defendants were required to share a single economic expert. This article examines the evolution of expert evidence in English civil litigation, the case management of economic evidence in competition cases, and the implications of the Tribunal’s and Court of Appeal’s rulings on single joint experts. The article concludes by assessing the broader impact of this shift on multi-defendant (and multi-claimant) claims, including collective proceedings.
Competition law is increasingly shaping the regulation of sport. Recent jurisprudence has revealed this in two ways. First, sporting regulations – the rules set by sports governing bodies – have been found unlawfully to restrict competition by object. Second, the implementation of such rules by sports governing bodies has been held to constitute the abuse of a dominant position. The seminal case of European Superleague v. UEFA materially developed the law in this respect: it clarified that regulatory provisions which may affect the parameters of economic competition must be situated within a substantively and procedurally sound framework if they are successfully to withstand a competition law challenge. Nevertheless, as revealed by other recent case law, sporting regulations remain subject to potential attack on more traditional competition law grounds. This article draws out various points of principle from this recent jurisprudence and considers how the trend toward further litigation may continue to influence regulatory developments in sport for years to come.
This article takes an economic perspective on the impact of third-party litigation funding on collective competition actions in the UK. Third-party funding has emerged as a crucial mechanism enabling collective actions; however, the reliance on such funding in the large number of collective proceedings before the Competition Appeal Tribunal has generated scrutiny. This article examines the economic rationale for litigation funding, briefly considering both its benefits – such as improved access to justice and efficient claim selection – and three supposed concerns: the system benefits funders more than consumers, leads to excessive litigation and creates conflicts of interest between funders and claimants. These concerns do not always have a strong economic basis, but, in some instances, they do. Where they do, it is essential that the Tribunal continues to play an important role in scrutinizing funding arrangements as a helpful corrective.
Third-party litigation funding is a common part of bringing applications for a Collective Proceedings Order. This article considers some of the controversies that exist around the third-party litigation funding industry and issues the Competition Appeal Tribunal considers when considering the application for a Collective Proceedings Order and also when considering applications for settlement.
