2025 is set to be a significant year for antitrust enforcement. Global developments and geopolitical tensions have proved to have deep and lasting economic effects, and with the changed political leadership in the EU, UK and US, competition law enforcement has been identified as a key tool in the renewed drive for innovation, investment, productivity and long-term economic growth. In this context, we have identified four key antitrust enforcement trends which businesses need to be prepared for.
Surge in dawn raids and ever expanding scope of data requests
The last couple of years have already seen an increase in dawn raids, both at company offices and employees' homes. We expect this to continue in 2025, with authorities focusing on (i) complex and broad data collections and preservation obligations, and (ii) retrieving information they consider relevant, regardless of whether it is stored on company servers, cloud systems, mobile phones, recordings of meetings or at employees' homes. This will continue to raise significant challenges for companies faced with a higher risk of allegations of obstruction, particularly in the case of mobile data, messaging on social media platforms and ephemeral messages.
The US Department of Justice (DOJ) updated its corporate compliance guidance indicating it expects companies to establish compliance policies that articulate the rationale for its preservation settings, including when use of ephemeral messaging is permitted. These updates are a warning that a company's failure to preserve such communications can lead to charges for obstruction of justice. Following its evaluation of its enforcement tools that are now more than 20 years old, we also expect to see the EU taking its first steps to address shortcomings identified in its enforcement practices to address the reality of the digital world, to address concerns about the slowness of investigations and to consider the usefulness of interim measures.
Powers to launch market investigations (without the need to find problematic agreements, concerted practices or abuses of dominance) are currently available to regulators in several countries, and we expect to see more use of these powers across Europe. On the other side of the Channel, the UK has introduced extra-territorial information gathering powers and higher penalty caps for destroying data or providing false or misleading information, with a new debarment regime also expected to enter into force to ban companies from bidding for public contracts if they violate competition.
Data destruction and/or obstruction of investigations is becoming ever more challenging and companies need to ensure they have the right policies in place to mitigate this risk and better prepare for handling investigations.
Improved detection and closer international co-operation
Competition agencies are increasingly utilising new tools to detect violations without relying on companies reporting antitrust behaviour in exchange for immunity/leniency. Aside from encouraging whistleblowing activity, agencies have invested significant resources in developing digital tools to analyse large amounts of data that may provide evidence of anticompetitive behaviour. The European Commission (EC) is able to review large numbers of investor calls to detect instances where sensitive information was disclosed, while the UK Competition and Markets Authority developed an enhanced AI tool to spot bid-rigging risks.
The DOJ is also focused on driving detection and exploring other ways to drive leads (including the increased use of specialised warrants to intercept electronic data and communications or conduct surveillance on target of an investigation, encouraging companies leveraging technologies to monitor and enforce compliance policies, increased coordination with domestic and international enforcement agencies, using data analytics tools and AI to recognise suspicious bid patterns and seeking restitution for victims that come forward and not just relying on class actions to make victims whole again).
As more authorities increase their sophistication in 2025, we also expect greater collaboration between agencies, sharing the intelligence gained from the use of such tools. This also means greater coordination of multijurisdictional openings of proceedings, dawn raids and investigatory efforts.
Companies need to develop a playbook for handling cross border simultaneous investigations. Public statements, including those made during investor calls, should be carefully reviewed in advance for competition concerns, especially since recordings of remote meetings are becoming a significant source of evidence for regulators. Agencies are more sophisticated than ever to independently detect anticompetitive conduct, and collaborate much more closely in their enforcement activities.
Focus on broader conduct
Competition authorities will continue to push the boundaries of antitrust violations to address novel forms of problematic conduct. Focus areas for regulators are likely to relate to:
- Labour practices - no poach and wage fixing agreements have been fertile ground for competition agencies in the US, which have expanded their labour guidance to scrutinise restrictive agreements between employers and employees (including non-disclosure agreements, non-compete agreements and exit fees). We expect to see the first decisions in this space in the UK and at EU level in 2025/2026, with particular focus also being placed on information exchange and the benchmarking of salary and benefits.
- Information exchange and price signalling - a renewed interest by agencies into information exchange, including in the context of trade associations but also through public communications, will make antitrust headlines in 2025. The EC and other European agencies are using tools to scrape large amount of public data to detect conduct and launch investigations in this context.
- Algorithms and AI - the EC is also focusing its enforcement efforts on third party information service providers and market analyst companies that facilitate or automate the exchange information. In addition, both the UK and the US have updated their compliance guidance asking companies to mitigate risks of algorithmic collusion, including expectations that companies evaluate AI tools and algorithmic pricing software and how they impact business operations, including the potential for these tools to enable price-fixing and other types of collusion. Specifically, the US guidance indicates companies should use data analytics internally to detect potential antitrust issues.
- Resale price maintenance and parallel trade - vertical price fixing remains a key area of enforcement attracting significant fines, especially across EMEA. We expect this trend to continue, both at EU level and in individual European countries, with consumer goods and life sciences being a clear focus, coupled with the enforcement of parallel trade restrictions in Europe remaining a continued priority.
- Focus on market power - regulators continue to be especially vigilant of potential abuses of dominance, particularly in the tech and life sciences sectors. The EC is consulting on draft guidance on exclusionary abuses (expected to be adopted later in 2025) which, if enacted in its current form, would give the EC significant flexibility to challenge companies' business practices whilst offering limited clarity on guidance for businesses and their advisors.
- ESG/sustainability - authorities across the world have been publishing guidance seeking to facilitate pro-competitive collaboration in the ESG space. Concerns over ESG collaboration pursued in the US have both had a chilling effect in this space and significantly complicated it, but the new EU Commissioner's promise to make this a renewed priority may yet shift the balance again in favour of competitor collaboration to pursue legitimate ESG related objectives.
Antitrust compliance programs, guidance and training need to be broader in scope, practical and fit-for-purpose. They need to extend to companies' labour/human resources activities, public pricing related communications, internal price optimisation software/tools and ESG/sustainability related activities, alongside traditional anticompetitive behaviour.
Private litigation
Beyond the danger of public enforcement, there is a further growing risk posed by the recent surge in antitrust litigation, which is predicted to continue this year. The increase in collective action claims across the EU and in the UK signals the expansion of this form of litigation from the US, and raises the prospect of defending substantial related claims across various different jurisdictions.
Private enforcement is also being utilised as a tactic to achieve commercial goals – whether securing access to a distribution network or store platform, challenging termination or commercial terms of dealing, or arguing competitor actions are unfair.
In the US, private litigation slightly increased in 2024 reversing the decreasing trend that resulted in historic lows in 2022-23. Indeed, private litigants have been pursuing claims that competitors' use of the same algorithmic pricing software was used to facilitate collusion.