February Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to this edition of the Sidley Antitrust and Competition Bulletin — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you. 

• A new chairman of the U.S. House Subcommittee on the Administrative State, Regulatory Reform, and Antitrust may signal changes in antitrust enforcement in the United States.

• On February 10, 2025, Biden administration–proposed regulations under the Hart-Scott-Rodino (HSR) Act came into force after all, and incoming leadership doubles down on Biden-era revamped Merger Guidelines.

• The UK Competition and Markets Authority (CMA) recently published proposals outlining how it intends to promote growth while protecting consumers and competition in the UK.

• The European Commission (Commission) recently published a “Competitiveness Compass,” which is designed to guide the Commission’s work for the next five years.

• The first provisions of the European Union Artificial Intelligence Act (EU AI Act) entered into force on February 2, 2025.

Read more on how this news can affect your business below …

Changes on Capitol Hill Reflect Continued Tech Antitrust Scrutiny: Leadership changes in the 119th Congress reflect shifting attitudes toward antitrust scrutiny on the Hill. In December, Republican Rep. Scott Fitzgerald of Wisconsin was named chairman of the Subcommittee on the Administrative State, Regulatory Reform, and Antitrust. Rep. Fitzgerald said that he was planning “to hold Big Tech accountable for censorship, reverse the Biden administration’s antibusiness agenda, and fight the federal bureaucracy.” 

Members and staff of the subcommittee have already kicked off a busy agenda. Rep. Fitzgerald recently sent a letter to former Federal Trade Commission (FTC) Chair Lina Khan requesting a briefing on the agency’s investigation into ridesharing app memberships. Additionally, Republican Rep. Benjamin Cline of Virginia reintroduced the One Agency Act. The bill would consolidate antitrust enforcement in the Department of Justice. 

Why it matters: In a conversation with the American Bar Association this month, a staffer for Rep. Fitzgerald stated that the chairman’s goal “is to restore clarity and predictability into antitrust enforcement,” reversing “aggressive enforcement” that “really ignores the potential market efficiencies of mergers and acquisitions that we think ultimately benefit the consumer.” There were further suggestions that the subcommittee may look to the Congressional Review Act to potentially scrap the HSR Act final rule, which revamped the HSR notification process and prompted a lawsuit from businesses.

The new HSR filing requirements are now in effect after all, and the 2023 Merger Guidelines are here to stay: On February 10, 2025, the long awaited overhaul of the premerger filing requirements went into effect. The new rule significantly expands the amount of information merging parties are required to collect, thereby increasing the burden and time required to prepare HSR filings. For a more detailed description of the final amendments as well as other key takeaways, see our recent Sidley Update here.

On February 18, 2025, the newly appointed FTC Chair, Andrew Ferguson, released a memorandum on the Merger Guidelines in which he clarified that “the FTC’s and DOJ’s joint 2023 Merger Guidelines are in effect and are the framework for this agency’s merger-review analysis.” The Department of Justice (DOJ) Antitrust Division quickly endorsed Chair Ferguson’s views regarding the 2023 Merger Guidelines with its own memo.

Why it matters: The implementation of the revised HSR rules without changes or delay and the antitrust agencies explicit commitment to the 2023 Merger Guidelines likely will disappoint those expecting the new administration to mount a regulatory about-face. The new HSR rules and 2023 Merger Guidelines underscore a continued commitment to robust antitrust enforcement at the FTC and DOJ. On the other hand, Ferguson believes the new filing requirements will “mitigate the risk of false positives” and help the FTC “avoid crawling down rabbit holes in unnecessary investigations.” Time will tell if the business community will agree that the burdens and benefits actually pan out as the Chairman suggests. 

The CMA embarks on its new growth mission: The CMA’s recently published draft annual plan includes proposals for a new Growth and Investment Council consisting of 12 members, including senior representatives from business and investor groups, with the objective of identifying opportunities for both pro-competition and pro-growth policies. More recently, the CMA announced reforms to streamline its current practices and boost certainty for stakeholders, including

• new internal CMA targets to complete its prenotification review of mergers within 40 working days and its phase-one review of straightforward cases within 25 working days — a significant reduction from the current respective averages of 65 and 35 working days
• clarifications on how the CMA assesses “material influence” in merger control, hopefully providing businesses some much needed certainty when making minority investments
• clarification of how CMA applies its similarly broad “share of supply” test, which may make assessing “call-in” risks of a transaction a much simpler exercise
• a review of its approach to both the process for agreeing remedies with merging parties as well as the types of remedies that may be accepted

Why it matters: These upcoming reforms and the CMA’s newly appointed Chair demonstrate the CMA’s ambition and readiness to actively consider the government’s growth mission and prioritize heightened certainty for businesses and investors.

European Commission publishes Competitiveness Compass: Building on the recommendations set out in the Draghi report, the Commission recently published its Competitiveness Compass (the Compass). Intended to guide the Commission’s work and set out its priorities for the coming five years, the Compass sets out three core imperatives: (i) closing the innovation gap, (ii) a joint roadmap for decarbonization and competitiveness, and (iii) reducing excessive dependencies and increasing securities. In terms of competition policy, the Compass underlines that “rigorous and effective” antitrust and merger enforcement promotes innovation and efficiency. However, it calls for a fresh approach to account for new, deep technologies and allow companies to scale up globally. To that end, the Commission plans to revise merger guidelines to both simplify and speed up enforcement while also allowing stronger and more targeted enforcement. The Commission will focus on closing the innovation gap, addressing the need for efficient scale, and supporting decarbonization. The enforcement of the Digital Markets Act (DMA) is also highlighted as a key measure to open closed ecosystems, enabling innovative businesses to offer new digital services to customers.

Why it matters: The Commission is under pressure, amid lagging economic growth in the EU, global trade frictions, and criticisms of its expansive regulatory framework, to actively encourage the EU’s competitiveness as a global economic market. While some elements of the Compass are aimed at reducing regulatory burdens, the Commission has not given any indications of decreased enforcement either under its merger control regime or under the DMA. 

First rules of the EU AI Act entered into force: On February 2, 2025, the initial provisions on subject matter, scope, definitions, and AI literacy as well as the prohibited AI practices set out in the EU AI Act started applying. The EU AI Act classifies certain practices as posing unacceptable risks and bans them due to their conflict with EU values, fundamental rights, and the rule of law. Prohibited practices include using AI to deploy subliminal, manipulative, or deceptive techniques, exploit vulnerabilities, predict criminal behavior, or harvest facial images from the internet or CCTV to create facial recognition databases. To assist companies with complying with the EU AI Act, the Commission published (i) draft guidelines on the definition of an AI system and (ii) draft guidelines on prohibited AI practices. These guidelines are designed to facilitate the application of the first rules of the EU AI Act.

Why it matters: The EU AI Act imposes regulatory requirements on AI system providers, importers, distributors, and deployers (i.e., users) in accordance with the level of risk involved with the AI system in question. There are four levels of risk for AI systems: (i) unacceptable, (ii) high, (iii) limited, and (iv) minimal. AI systems that pose an unacceptable risk and are considered a threat are prohibited.