Global Antitrust Update | Webinar Series – Spring 2025

Our latest webinar in the Global Antitrust Update series delved into three key areas highly relevant for 2025 antitrust enforcement and beyond.

Firstly, Stéphane Dionnet, Carina Kant and Elai Katz examined price indexation practices, their role in so-called “greedflation”, as well as current government action against it. Secondly, Christian Krohs and Gregory E. Heltzer explored how non-competitive factors – such as national security, industrial, and environmental considerations – could increasingly influence M&A antitrust/regulatory proceedings. Finally, Frédéric Pradelles and Stephen Wu turned to the ever-growing complexities of legal privilege in US and EU antitrust investigations, offering insights into best practices for maintaining confidentiality.

Top takeaways included:

• Price Indexation Mechanisms and their Intersection with Competition Law
  • Price indexation mechanisms could lead to potential competition risks such as entrenchment of market power, facilitation of collusion, and amplification of inflationary trends. These issues could draw the attention of competition authorities, as evidenced by the sector inquiry conducted by the Belgian Competition Authority regarding price revision and indexation mechanisms, announced in February 2025.
  • These types of practices are subject to both EU and US antitrust laws:
    • European Union: Price indexes may facilitate collusion prohibited by Article 101 TFEU and exclusionary pricing strategies which are sanctioned by Article 102 TFEU.
    • United States: Market manipulation through pricing strategies may lead to horizontal collusion, resulting in a restraint of trade in violation of the Sherman Act (e.g. US v. Socony-Vacuum (Sup. Ct. 1940); LIBOR (Gelboim v. BofA, 2d Cir. 2016)).
  • Given these risks, companies should establish risk mitigation frameworks, including index governance protocols (e.g. separate index design teams from commercial functions etc.), implementing contractual safeguards (e.g. include indexation cap-and-collar provisions) and providing compliance training.
• The Increasing Role of Non-Competitive Factors
  • Although the primary focus of the main EU M&A-related regulatory proceedings (i.e. merger control and FSR) is to protect competition, recent developments within the European Union indicate a shift toward additional areas of consideration:
    • The European Commission’s review of horizontal and non-horizontal merger guidelines suggests that innovation, environmental and social standards may be more taken into account when policing mergers.
    • To enhance EU competitiveness, innovation potential may also be taken into greater account when considering the effect of potential mergers, as well as certain security and resilience aspects in a nod to additional public interest criterion.

    Furthermore, the European Union is currently considering an update of the existing EU FDI Regulation:

    • As per the proposal, all EU member states will be required to have a screening mechanism in place.
    • The proposal also provides a list of sectors for the FDI screening, including semiconductors, biotech and artificial intelligence.
    • The proposal also aims at harmonizing national rules to make cooperation with other EU Member States and the European Commission more effective and efficient.
  • Similarly, the UK CMA has been tasked to support the UK government‘s priority for economic growth. This could potentially lead the CMA to consider the wider benefits a merger could have for the overall economy outside of its own market (including sustainability benefits) in its merger control assessments.
  • In the United States, companies must anticipate political and regulatory risks upfront, especially in spotlighted sectors such as tech, defense, healthcare, media, and energy.
    • New FTC and DOJ leaders under Trump signal aggressive, but pragmatic enforcement, fewer procedural hurdles, and when identifying problematic deals an openness to negotiated remedies rather than litigation.
    • However, antitrust enforcement may continue to be exposed to political dynamics: deals conflicting with Trump’s broader America First agenda or flouting certain social policies (ESG, DEI, outsourcing) could face targeted scrutiny.
    • CFIUS now broadly reviews foreign deals beyond defense, including supply chains, tech leadership, and data security—even affecting US allies.
    • CFIUS reviews are highly discretionary, prone to be politically influenced and are difficult to challenge in court.
• Legal Privilege and Antitrust Investigations
  • In US antitrust cases:
    • Attorney client privilege does not attach to communications made by or to an in-house attorney when that attorney is not acting in a legal capacity.
    • Privilege only applies when communication is made as part of a request for legal advice.
    • For mixed communications, the “predominant purpose” of communication must be the requesting legal advice.
    • Correspondence that is not otherwise privileged does not become privileged, just because an attorney is copied.
  • In EU antitrust cases:
    • The right to attorney-client confidentiality is a fundamental right for companies in the interest of the clients’ rights of defense, inclusive of when it originates from independent lawyers (ECJ, 1982, AM&S), and when it extends to legal advice in general (ECJ, 2024, Ordre des Avocats du Barreau de Luxembourg).
    • EU legal professional privilege does not apply to communication from/to in-house counsel.
    • At a national level, each EU Member State has its own rules on legal professional privilege and some countries do extend the scope of protection to in-house counsel (e.g., Portugal, Ireland).