DiGi POD

For years, the maxim was simple: if notification thresholds aren't met, merger control doesn't apply.   But since the Towercast ruling (CJEU, 2023), competition authorities have a clearer path to scrutinise below-threshold deals through Articles 101/102 TFEU — and national authorities have issued their first decisions on these grounds.   In this episode, our host Lucy Charatan (CMS UK) with our merger control experts Marine Bonnier (CMS, Paris) and Sébastien Willems (CMS, Brussels), will unpack the first enforcement decisions in France (by the FCA) and Belgium (by the BCA), including:   Doctolib : seven years after the acquisition, the FCA prohibits a killer acquisition under Article 102 Proximus/EDPnet: early use by the BCA of the Towercast doctrine with interim measures and close monitoring of the transaction Dossche Mills/Ceres: a proactive stance from the BCA - an investigation launched immediately after announcement under Article 101, and the deal ultimately abandoned. Practical takeaways for companies & counsel: - below-threshold ≠ below radar - legal certainty is deteriorating   -> Deal planning needs to evolve and must take into account the risk of a review on the basis of Articles 101 and 102

The podcast episode examines the evolving boundaries of competition law in the context of corporate communications, exploring a shift in enforcement focus from traditional, direct interactions between competitors to a broader assessment of how companies communicate publicly with the market. Advances in data-driven enforcement, including AI-assisted analysis, have significantly expanded competition authorities' ability to detect potentially problematic patterns across large volumes of information. Recent cases of the European Courts and national competition authorities, including the Italian “Bio Component” case illustrate that the critical issue is no longer the specific audience of a communication, but whether the information disclosed can reduce strategic uncertainty and enable market participants to anticipate each other's behaviour. Overall, the episode underscores a changing enforcement logic: competition risks increasingly stem from the way companies shape market expectations, even in the absence of direct coordination. This development is reinforced by more sophisticated detection methods that make subtle forms of alignment more visible to regulators.

In this episode of Competition+, we take a closer look at the European Commission's review of the EU Merger Guidelines – rules that explain how mergers are assessed under EU competition law. With the current guidelines dating back around 20 years, the Commission is seeking to modernise its approach considering evolving markets, enforcement trends and case law. The discussion delves into key areas under consultation: Assessing market power, including a potential shift away from traditional safe harbors; Innovation, with a focus on predicting when deals might stifle or stimulate R&D; Sustainability, and whether merger control can support the green transition; Digitalisation, and the need for new theories of harm to address rapidly evolving, data-driven markets. Tune in to hear what these changes could mean for businesses, dealmakers, and the future of merger control in the EU.

Labour markets have been under intense scrutiny lately with both the European Commission and national competition authorities in the EU looking into various forms of anti-competitive agreements affecting labour markets. In this episode of Competition+ we dive into the complex world of no-poach agreements, which are essentially arrangements between companies not to hire or solicit each other's employees. We break down what these agreements entail and how they differ from other legal arrangements (such as non-compete and non-solicitation agreements), the various forms they can take, and how they often surface in practice. Employers should be aware that competition authorities often view no-poach agreements as anti-competitive. Such agreements can carry significant risks for the company and, sometimes, for its legal representatives. It is essential to understand the limits within which employers can pursue legitimate business decisions in relation to their employees. We wrap up with actionable tips for employers and HR professionals to avoid illegal conduct and mitigate legal risks in today's evolving environment of antitrust enforcement.

Dawn raids are an evergreen in the world of competition law. EU competition authorities use this powerful investigative tool to uncover cartels. A dawn raid is also a process in which the inspectors are more experienced and the staff under extreme pressure. It can lead to costly mistakes as the authorities protect their investigative powers by imposing hefty fines for non-cooperation. In the first episode of the Competition+ podcast, we discuss how to avoid making mistakes during a dawn raid that can severely damage a company. As competition authorities nowadays focus their efforts on collecting electronic evidence, we give examples of mistakes that various companies have made when providing inspectors with electronic communications from their employees. We discuss recent cases from the European Commission as well as Member State practice (Germany and Poland) and summarise what companies can do to better protect themselves. Stay tuned for the next episodes!

What is caught under the vertical restraints block exemption? Which changes can be expected in comparison to the existing rules? Are you a supplier and retailer: be aware – the rules will change for you! Also, e-tailers and other companies active in the field of online sales will learn during the podcast what is expected to change for them.

In our second DiGi POD episode Roxana Kruse, Peter Giese and Moritz Pottek will present the key aspects of the proposed EU Foreign Subsidy Regulation and explain why this topic is relevant for mergers and acquisitions, public procurement and state aid alike.  Find out what could constitute a foreign subsidy, which tools are foreseen to tackle market distortions caused by foreign subsidies, how the European Commission wants to enforce the proposed Regulation and what will be the next steps in the legislative procedure. 

In the competition law world, you can hardly avoid the terms online platforms and digital markets these days. But why are there so many discussions around digital markets and why are there concerns around online platforms? In our first DiGi POD episode, Roxana Kruse and Peter Giese will walk you through the most important competition law concepts concerning digital markets. They will introduce you to the competition lawyers' glossary around online platforms. Terms such as network effects, lock- in effect and gatekeeper will no longer be a mystery to you and you will find out what this has to do with the Commission's proposal for a Digital Markets Act.