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Antitrust and enforcement trends in 2022
International law firm Allen & Overy has released its Antitrust Enforcement Report 2022, which details data trends of global cartel conduct and analyses key developments in the antitrust space.
Lauren Croft
The report includes research conducted by lawyers across 29 jurisdictions and includes an analysis of antitrust enforcement, including vertical restraint cases involving issues such as resale price maintenance and territorial restrictions, and abuse of dominance cases.
The research also revealed that digital reform would continue to be on the rise, with a number of new investigations opening across Europe and the Asia-Pacific region, indicating that heightened activity in the digital space will continue throughout 2022.
“The focus on the digital sector is a trend that we have witnessed in the last few years, and remains a continued priority for regulators across the globe. A number of digital reforms entered into force in 2021 and several more are on track to do the same in the coming months. As the number of different regimes increases, so too will the need for interaction between them, a fact seemingly already acknowledged by the regulators themselves,” the report stated.
“The U.S., Australia, Japan, Korea and Taiwan are among the jurisdictions that have also launched or progressed initiatives in the digital space. The challenges posed by digital markets dominated discussions at the G7 Competition Enforcers Summit in November, with emphasis on the need for a joined-up approach to reform.”
Sydney-based head of the A&O APAC antitrust practice Peter McDonald confirmed this.
“Digital platforms remained a focus of the ACCC throughout 2021, which is likely to continue in 2022 as consultation begins on potential new regulation to govern the conduct of large tech firms,” he said.
“Cartel fines imposed in Australia totalled US$18.3 million in 2021, up from 2020 but short of the higher levels seen in 2019 (US$37.9 million) and 2018 (US$45.6 million).
“New chair Gina Cass-Gottlieb and new enforcement commissioner Liza Carver are highly experienced and capable litigators – we can expect rigorous case selection and a desire to improve the win ratio in the really tough cases, but no let-up in the ACCC enforcement agenda.”
Similarly, A&O Sydney counsel Stefanie Benson added that the Australian Competition and Consumer Commission (ACCC) would continue to be “undeterred” in 2022.
“Undeterred by the COVID-19 pandemic, the ACCC continued a rigorous antitrust enforcement and compliance program in 2021, remaining focused on criminal and civil cartel proceedings.
“2021 saw several notable cases, including those in which the ACCC worked together with the Commonwealth Director of Public Prosecutions to obtain a $24 million fine against an international shipping company; and guilty pleas from a pharmaceutical company. The failed high-profile bank industry cartel case will be the subject of an internal ACCC review – no doubt including consideration of whether the matter should ever have been pursued criminally,” she said.
The report also notes a spotlight on sustainability initiatives – and showed that the “interplay between antitrust law compliance and sustainability initiatives will remain high on the agenda for 2022”.
“2021 saw continued lively debate on the interplay between antitrust law compliance and sustainability initiatives. Europe has been at the centre of much of the discussion, with antitrust authorities in the Netherlands, Greece, Germany and the UK setting out policies or issuing guidance. The Dutch authority in particular has led the way with progressive new guidelines, and a strong stated position that agreements between competitors that benefit society as a whole could be allowed even if the companies’ customers are left worse off,” it stated.
Additionally, collaboration between antitrust authorities is set to increase in the coming year.
“2022, a new working group was also announced between the ‘Five Eyes’ antitrust authorities (the UK, Australia, U.S., Canada and New Zealand), which will meet regularly to develop and share intelligence to detect and investigate anti-competitive behaviour,” according to the report.
“For businesses, greater cooperation between authorities may lead to quicker investigations and speedier decision-making, especially in complex areas such as digital markets. It may also facilitate a more transparent and uniform approach to particular business practices, helping multinational companies to better evaluate potential risks.”
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Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
