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On 4 October 2022, the Council of the European Union definitively approved the Digital Services Act, maintaining unchanged the content proposed by the European Parliament. On 5 July 2022, the European Parliament also approved the articles of the Digital Market Act still pending a final vote in the Council. The Digital Market Act and the Digital Services Act regulate the legal status of providers of intermediary services (e.g., online platforms such as marketplaces, search engines, social networks, hosting services, etc.) and thus also affect other actors (users and businesses of all sizes) interacting through their services.

Please join us for a weekly series, hosted by Baker McKenzie’s North America Government Enforcement partners Jeffrey Martino and Jerome Tomas.
This weekly briefing is available on demand and will cover hot topics and current enforcement actions related to white collar crime and criminal investigations in the US and abroad to arm you with the information you need for your business week.
This week’s discussion will cover the following:
• DOJ’s Scrutiny on Interlocking Directorates spurs Board resignations
• DOJ files its first criminal Section 2 attempted monopolization case in decades

The Investigating Authority of the Federal Economic Competition Commission published on 12 October 2022, a notice initiating an investigation, for alleged anticompetitive conduct of horizontal monopolistic practices (or cartel practices) in the market of public procurement procedures for the acquisition, leasing, maintenance services and managed services of information and communication technologies.

On 19 September 2022, the US Attorney for the District of Montana and the US Department of Justice, Antitrust Division filed a criminal information against and plea agreement with the president and owner of a paving and asphalt company to resolve a charge of attempted monopolization. The company owner pled guilty to engaging in anticompetitive conduct with the intent to gain monopoly power in the markets for highway crack sealing services in Montana and Wyoming by proposing to a competitor that they enter into a market-allocation agreement in which the two companies would stop competing against each other by dividing territories in Montana and Wyoming. The company owner also agreed to pay a fine of USD 27,000.

On 19 October 2022, the US Department of Justice’s Antitrust Division announced that seven directors had resigned from their respective corporate board positions in response to concerns of interlocking directorates. This announcement followed reports that DOJ had issued letters to numerous public companies, investors, and individuals last month. The letters reportedly indicated that DOJ was examining potential interlocks and advised the targets of the risk of potential enforcement actions. DOJ’s muscular posture toward enforcement under Section 8 of the Clayton Act is only the “first in a broader review of potentially unlawful interlocking directorates.”

Following the public hearing in March 2022, the Trade Competition Commission of Thailand published an amendment to the guideline on fair trade practices relating to credit terms with small and medium enterprises under section 57 (unfair trade practices) of the Competition Act 2017. This is the first amendment after the guideline became effective in December 2021.

Detecting rigged bids once dominated the workload of KPPU, and while that may no longer be the case, the number of bid-rigging cases being handled by the KPPU at any given time remains relatively high. Recent enforcement cases have focused on construction and public procurement projects. Through these cases, KPPU has proven that it is adept in the area of technology – scrutinizing metadata and IP addresses of defendants to uncover evidence of collusion. Colluding to rig bids is an Article 22 violation under the Indonesian Competition Law, for which KPPU may impose a fine of IDR 1 billion or more.

Companies with effective Antitrust & Competition Compliance Programs may benefit from more lenient sanctions if KPPU finds an infringement in the future. KPPU Regulation No. 1 of 2022 on ACCP was issued earlier this year to provide further guidance for the implementation of Article 15(a) of Government Regulation No. 44 of 2021. To receive the compliance credit, it is important to ensure your ACCP meets the requirements of the KPPU Regulation and then secure the KPPU certification (a stipulation that will be valid for five years, and is renewable).

The Competition Commission of South Africa has published revised, final guidelines on small merger notifications to more readily be able to identify small mergers and acquisitions involving digital markets. The small merger guidelines were revised due to an increased concern regarding potential anti-competitive acquisitions in the digital markets, which are potentially able to escape regulatory scrutiny. The guidelines will come into effect on 1 December 2022.