Emerging Data Provides Challenges as EU Enforcement of Antitrust Regulation Increases

In antitrust regulation, a significant increase in enforcement activity signals the beginning of intensified regulatory scrutiny. As reported in an article by ACC Docket, a global survey shows that over 75% of senior legal and compliance professionals expect more regulatory investigations in the coming year, and 30% foresee increased compliance risk. 

These concerns are substantiated by the March 2023 ruling of the Court of Justice of the European Union, which allows non-reportable transactions to be scrutinized for abusing their dominant position. This precedent empowers authorities to investigate and potentially reverse deals post-closing, even if the deals fall below traditional merger control thresholds.

The European Commission and member states are also using Article 22 to monitor below-threshold transactions for merger control. Concurrently, there has been a proliferation of emerging data types, such as those from chat tools, collaboration applications, and cloud systems. More than one-third of data managed for legal purposes is emerging data, up nearly 20 percent from the previous year.

This data proliferation creates unprecedented challenges. Regulators are eager to access the new data formats, including those on personal devices, raising technical and privacy issues. Regulation 1/2003 is under reassessment to possibly expand regulators’ data inspection powers. 

This environment has necessitated robust analytics for effective navigation of regulatory matters and proactive compliance. For example, advanced analytics are becoming increasingly important in investigation workflows, document review, and compliance. Moreover, there is increased collaboration among antitrust authorities across jurisdictions, enhancing the complexity of regulatory responses. 

Expertise and sophisticated approaches are critical for organizations to handle emerging data and regulatory scrutiny efficiently. Legal departments will need to adopt agile, analytics-supported strategies to mitigate risks in the fast-evolving landscape of global competition and regulatory compliance.