Antitrust, Regulation & Foreign Investment Q1 newsletter

Welcome to our first quarterly newsletter of 2025, where the Ashurst Antitrust, Regulatory and Trade Team recaps some of the key developments of Q1 2025.

This edition highlights:

• updates on merger control in the UK and Australia, with: (i) the Competition and Markets Authority (CMA) launching a formal review of its approach to remedies in merger cases (particularly, when behavioural remedies may be appropriate and effective) and the UK Government announcing that it will consult on legislative reforms relating to the share of supply and material influence tests; and (ii) the Australian Competition and Consumer Commission (ACCC) publishing three sets of guidelines ahead of the commencement of Australia's new merger regime.
• the new consumer enforcement regime in the UK which came into force on 6 April 2025. The CMA is now able to investigate and impose fines of up to 10% of a company's global turnover for breaches of consumer law. While the CMA has emphasised that it is focused on supporting businesses that are actively working towards complying with consumer protection laws, it has also made reference to early enforcement action and we do not anticipate it shying away from using its new fining powers where it identifies serious breaches.
• developments in the digital economy in Australia. Globally, digital platforms, online content providers and other businesses active in the digital economy continue to face an increasingly complex and evolving regulatory and legal landscape. In our latest multi-disciplinary update, we highlight critical areas including AI, privacy and data, competition and consumer protection, online safety and cyber security.

Merger control

1. CMA clears first case under new Phase 2 merger process

In April 2024, the CMA issued updated guidance on its merger review process. The most significant changes were to the process for in-depth phase 2 merger reviews and were designed to streamline the process, increase engagement with the Inquiry Group that determines the case and encourage earlier discussions on remedies (see our May 2024 update).

On 6 March 2025, the CMA concluded its first phase 2 review under the revised process and cleared the merger of two travel agency services companies that operate globally (Amex Global Business Travel and CWT). The CMA had initially identified competition issues, but changed its view late in the process. See our March 2025 update.

2. CMA reconsiders approach to merger remedies and publishes Mergers Charter 

On 12 March 2025, the CMA launched a formal review (Call for Evidence) of its approach to remedies in merger cases. In particular, the CMA is considering the effective use of behavioural remedies, how to ensure the efficiency and speed of the remedies review process and the preservation of pro-competitive merger efficiencies and merger benefits. 

On the same day, the CMA also published its Mergers Charter which sets out principles and expectations for how the CMA and businesses and their advisers will engage with each other during merger investigations. 

The Government subsequently announced on 17 March 2025 that it will be consulting on legislative reform proposals with the aim of "addressing uncertainty with the existing Share of Supply and material influence tests". See here for our overview.

3. Guidelines galore! ACCC releases three sets of guidelines ahead of new Australian merger regime

On 28 November 2024, Parliament passed Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024, to introduce a new merger clearance regime in Australia. The new merger clearance framework is both mandatory and suspensory for transactions which exceed specified monetary thresholds. It will commence on 1 January 2026, with a voluntary transition period commencing from 1 July 2025 (when the current merger authorisation system will be closed).

The ACCC has published three sets of guidelines ahead of the commencement of Australia's new merger regime: (i) transitional guidelines addressing how mergers will be dealt with for the remainder of this year and containing important rules regarding when mergers need to be put into effect; (ii) draft merger assessment guidelines which will apply under the new regime and which reflect the legislative changes to the test and regime; and (iii) draft merger process guidelines which are intended to assist merger parties to understand the steps the ACCC will take in assessing a merger, when it will take those steps and how parties should engage with the ACCC under the new regime.

In this update, we highlight the key points from each of them.

Procurement

1. Procurement Act 2023: when is a competitive procurement not required?

The Procurement Act 2023 came into force on 24 February 2025. The Act creates a new public procurement rulebook in England, Wales and Northern Ireland (see our Procurement Act 2023 hub for additional resources). 

This update outlines the key situations where a contracting authority can award contracts without running a competitive procurement procedure and the changes the Act has made in this area. This update focuses on two related topics: (i) exempted contracts and (ii) direct awards. See our March 2025 update. 

2. The Procurement Act 2023: death by a thousand notices?

One of the goals of the Procurement Act 2023 is to create a transparent public procurement system. In order to achieve this goal, contracting authorities are now required to publish procurement notices throughout the procurement lifecycle from planning through to contract expiry. The Act therefore introduces a number of new types of notices which contracting authorities must publish. See here for further details.

Trade

1. Overview of the EU's 16th sanctions package

On 24 February 2025, three years after Russia's invasion of Ukraine, the EU adopted its 16th package of sanctions against Russia. The new measures target Russia's energy, transport, infrastructure, and financial services sectors, and introduce new anti-circumvention provisions. 

Certain measures of the 16th package are also mirrored in the updated sanctions regime against Belarus. At the same time, the EU has also strengthened the measures against Crimea and Sevastopol, and the non-government-controlled areas of Donetsk, Kherson, Luhansk and Zaporizhzhia Oblasts (the Russia-Controlled Territories).

The European Commission also has new powers to exchange information with sanctions authorities in the US, UK and other partner countries. This is a potential game-changer in cross-border cooperation on enforcement of Russia sanctions.

See our March 2025 update.

2. EU CBAM: a guide for importers and third-country producers

The European Parliament and the Council of the EU adopted a regulation establishing a carbon border adjustment mechanism (CBAM Regulation) on 10 May 2023 (see our May 2023 update). The CBAM Regulation started to apply on 1 October 2023.

The CBAM is an evolving tool, with several implementing acts due in 2025. On 26 February 2025, the European Commission adopted a proposal to simplify the CBAM (Proposed Amending Regulation). The Proposed Amending Regulation now needs to go through the ordinary legislative procedure, during which it must be adopted by both the European Parliament and the Council. The European Commission has requested that the legislators use a simplified process (so-called "fast-track" process) and refrain from proposing amendments in addition to those already included. The legislators have indicated their willingness to do so, but the overall process could still take months.

See here for an overview.

Other developments

1. What's Ahead: 2025 Digital Economy in Australia

Digital platforms, online content providers and other businesses active in the digital economy continue to face an increasingly complex and evolving regulatory and legal landscape in Australia.

2025 will see the AI hype continue, as businesses vie to unlock the full potential of AI, and innovation continues at pace. We expect a moderation of tech regulation strategy and hyperactive reform, as governments strive to strike the right balance between fostering investment, and addressing potential harms. We are also predicting an uptick in tech M&A, continued scrutiny and harms-based action by regulators, and more private litigation.

It is essential to adopt an integrated approach that is consistent across legal areas and is future-proofed so far as possible. To help you stay on top of the key developments, our multi-disciplinary team has created a snapshot of significant emerging themes, incoming reforms, and cases to watch this year. 

2. Ready… set… Date set for the CMA's new consumer enforcement powers

The Digital Markets, Competition and Consumers Act 2024 enables the CMA to directly enforce consumer protection laws through administrative enforcement in a manner similar to its Competition Act powers. These new powers came into force on 6 April 2025. Businesses should therefore review and refresh their internal practices and processes in advance of 6 April 2025, including in relation to staff training, establishing appropriate internal policies, and conducting internal reviews of business practices. 

The CMA has emphasised that it is focused on supporting businesses that are actively working towards complying with consumer protection laws (consistent with the more business-friendly and growth-focused approach set by the Government in the draft Strategic Steer it has given to the CMA) and that early enforcement action will be proportionate. See our March 2025 update. 

3. More with more: ACCC announces bumper compliance and enforcement priorities for 2025-26

On 20 February 2025, the ACCC Chair Gina Cass-Gottlieb announced the agency's compliance and enforcement priorities for 2025-26 at her annual keynote speech at the Committee for Economic Development Australia (CEDA). 

The ACCC has announced 12 compliance and enforcement priorities for the year ahead, including: 

• competition issues and consumer and fair trading concerns in the supermarket and retail sector;
• promoting competition in essential services (with a focus on telecommunications, electricity and gas) and misleading pricing and claims in relation to essential services (with a particular focus on energy and telecommunications);
• competition and consumer issues in the aviation sector;
• competition, product safety, consumer and fair trading issues in the digital economy (with a focus on misleading and deceptive advertising within influencer marketing, online reviews, in-app purchases and unsafe consumer products);
• consumer, fair trading and competition concerns in relation to environmental claims and sustainability, with a focus on greenwashing; and
• unfair contract terms in consumer and small business contracts, with a focus on harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses.

While not a specific compliance and enforcement priority, the ACCC has highlighted that the successful implementation of the new merger control regime will also be an important focus for the ACCC in 2025 and 2026. 

See our February 2025 update.

4. Excessive Pricing: Impact of the Le Patourel and Phenytoin rulings

The Competition Appeal Tribunal (CAT) has recently handed down two significant judgments concerning excessive and unfair pricing abuse of dominance under Chapter II of the Competition Act 1998:

• On 20 November 2024, the CAT rejected the CMA's revised decision to fine Pfizer and Flynn Pharma for engaging in excessive and unfair pricing in relation to various dosages of phenytoin sodium capsules. The CAT took the unusual step to remake the decision, issuing comparable fines for the same infringements of £62.3 million and £6.7 million respectively (see our March 2025 update).
• On 19 December 2024, the CAT handed down its long-awaited judgment in Justin Le Patourel's collective action against BT, alleging that BT charged excessive and unfair prices to approximately 2.3 million landline customers in the UK (see our May 2022 update). The CAT found that BT had not abused its dominant position and that while prices were excessive they were not unfair when considering the economic value of BT's landline services (see our December 2024 update).

See here for an overview of the key updates and our consideration of next steps for the law on excessive pricing.