Antitrust, Regulation & Foreign Investment Q3 2025 newsletter

Welcome to our third quarterly newsletter of 2025, where the Ashurst Antitrust, Regulatory and Trade Team recaps some of the key developments of Q3 2025.

This edition highlights:

• Guidance by the UK Competition and Markets Authority (CMA) for HR teams on compliance with competition law, highlighting areas of particular risk such as wage fixing, no poach agreements and the exchange of competitively sensitive information with other employers.
• The start of the transitional period for the new Australian merger control regime. Just before the start of the transitional period on 1 July 2025, the Australian Treasury finalised a notification instrument setting out important details about the new merger regime, including the notification thresholds, targeted notification requirements, notification forms and fees. The new regime is now operational on a voluntary basis until 1 January 2026.
• How to navigate the U.S. tariffs regime which is now highly fragmented with multiple overlapping measures that can apply to a single import transaction. Determining the correct tariff exposure now requires a detailed, fact-specific analysis, considering the country of origin, product valuation and classification, applicable trade agreements, and the latest policy changes.
• The new UK rules on fake reviews which came into force on 6 April 2025. During an initial grace period, the CMA has been supporting businesses with compliance and conducting a sweep of platforms to identify potential non-compliance. Enforcement action is expected to follow, with the CMA having the power to impose fines of up to 10% of a company's global turnover.

Merger control

1. CMA consults on further reform to UK merger procedure guidelines

Between 20 June 2025 and 1 August 2025, the CMA consulted on changes to its merger guidance on jurisdiction and procedure to implement the "4Ps" strategic framework (of pace, predictability, proportionality and process) (the Draft Guidelines), which seeks to ensure that merger control supports the UK Government's economic growth objective.

A number of the proposed amendments (such as the changes to the material influence and share of supply tests) codify the CMA's recent decisional practice. The most significant changes to the CMA's Draft Guidelines are likely to include the measures aimed at increasing the pace of phase 1 cases (including changes to the pre-notification process) and the CMA's policy stance with respect to global mergers. See here for our overview.

2. CMA delivers first remedies decision under new Phase 2 process

GXO / Wincanton is the first Phase 2 case to involve remedies since the CMA reformed the Phase 2 process in 2024 (see our May 2024 update) and comes at a time of revived emphasis on supporting growth and investment.

While the CMA rejected the hybrid remedy proposed by GXO, it accepted a modified divestment remedy despite third party concerns. The CMA still prefers structural remedies, particularly in cases involving direct competitors, but its willingness to accept a divestment remedy with complicated carve out arrangements indicates greater pragmatism on the CMA's behalf and the new Phase 2 process allows greater time to negotiate more complex remedies.

See here for further details.

3. New Dawn – transitional period for the new Australian merger regime commences

Just before the start of the transitional period to the new merger regime, the Australian Treasury finalised a notification instrument setting out important details about the new merger regime, including the notification thresholds, targeted notification requirements, notification forms and fees. The final instrument contains some limited but significant changes to an earlier exposure draft of the instrument released for consultation on 28 March 2025.

Until 1 January 2026, the new regime is operational on a voluntary basis (though notification fees are still payable for voluntary notifications and reviews will still be published on ACCC website). See here for our latest update and our Australian merger reform hub for additional materials.

UK National Security & Investment Act

1. Proposed updates to the UK National Security and Investment Act Regulations

On 22 July 2025, the UK Government announced plans to update the UK investment security rules under the National Security and Investment Act (NSIA). In particular, the Government: (i) plans to ensure that mandatory notifications are no longer required for certain internal reorganisations and the appointment of liquidators and (ii) has launched a consultation on proposed amendments to the National Security and Investment Act (Notifiable Acquisition) (Specification of Qualifying Entities) Regulations 2021 (the NARs) to ensure the regime remains proportionate, effective, and responsive to evolving national security risks, while supporting the UK’s position as an attractive destination for investment. The consultation closed on 14 October 2025. See here for further details.

2. High Court rejects second judicial review challenge of NSIA final order

The UK Government used its powers under the NSIA to require FTDI Holding Limited (the Acquirer) (which is owned by Chinese funds) to unwind its acquisition of Future Technology Devices International, a UK semiconductor company. On 25 July 2025, the High Court rejected the Acquirer's application for judicial review and upheld the validity of the Final Order. This is the second challenge to a Final Order.

While the High Court's finding in relation to awareness of the transaction was deferential to the ISU, it should provide further clarity on when the clock starts to run on the six-month time limit for issuing a call-in notice. Notably, it is not only the awareness of the Secretary of State which is relevant: the awareness of members of the Investment Security Unit can be sufficient (depending on the particular facts). See here for our overview.

3. Key takeaways from the fourth UK NSIA annual report

On 22 July 2025, the UK Government published its fourth annual report covering the key trends in the operation of the NSIA regime. It covers the period between 1 April 2024 and 31 March 2025. In the report, the UK Government states that it has seen an increase of 26% in the number of notifications it received in 2024/25 compared to 2023/24. The report demonstrates the Government's continued focus on transactions in particular sectors, including defence, military and dual-use, advanced materials and energy. The number of final orders issued increased from 5 in 2023/24 to 17 in 2024/25. See here for our overview.

Antitrust

1. General Court: statements in earnings calls can trigger competition investigations

On 9 July 2025, the General Court ruled on Michelin's appeal against a European Commission decision ordering an inspection as part of an investigation into alleged price coordination by tyre manufacturers. The General Court confirmed that statements made by key management individuals during so-called "earnings calls" could form "sufficiently serious indicia" of a potential violation of competition law to justify a decision by the European Commission to carry out an inspection. Managers should take a cautious approach when making public statements about the company's future commercial conduct: statements made during earnings calls may be subject to scrutiny by competition regulators. See our overview here.

2. Australian Court warns cooperating class action firms against potential anti-competitive conduct

Two representative proceedings were commenced in the Federal Court of Australia on behalf of online publishers alleging anti-competitive conduct in the supply of ad-tech services used in online advertising. The applicants in the first proceeding were represented by a litigation funder and two law firms under an agency arrangement and Cooperative Litigation Protocol. The applicants in the second proceeding were represented by a different law firm and funder. Both proceedings alleged that the conduct in the ad-tech supply chain substantially lessened competition in Australian markets. The applicants in each proceeding sought to stay the other proceeding.

While the Court allowed the proceedings brought by the cooperating law firms to proceed, it stated that a detrimental aspect of the arrangement was that it removes the potential competition that would otherwise arise between the firms (and any litigation funders). The Court warned that any arrangement between law firms (or litigation funders) for the purpose, or with the effect, of avoiding or limiting competition in the supply of legal or financial services may contravene Australian competition law. See our overview here.

3. Competing for talent: CMA guidance for HR teams on compliance with competition law

On 9 September 2025, the CMA published new guidance, "Competing for Talent", which is targeted at HR professionals and sets out what businesses should do to comply with competition law when recruiting and retaining employees (the Guidance).

In light of its Guidance, the CMA will expect businesses to understand how competition law applies to their hiring and retention practices, including by ensuring that HR professionals do not engage in wage fixing, no poach agreements or the exchange of competitively sensitive information with other employers, including via third parties. The Guidance confirms that in-house recruitment teams should receive targeted training on competition law risks. Businesses also need to ensure that there are robust internal reporting mechanisms in place to support compliance and enable staff to raise concerns effectively. See our September 2025 update.

Consumer

1. From five stars to fines: the risks of fake reviews in the UK

The new prohibitions on fake reviews introduced by the Digital Markets, Competition and Consumers Act 2024 came into force on 6 April 2025. The new prohibitions apply to those hosting and publishing reviews or consumer review information. The CMA indicated that businesses will be granted a three-month grace period during which the CMA intends to support businesses to achieve compliance and uplift existing processes, rather than taking enforcement action. The CMA has commenced a sweep of review platforms to identify potential non-compliance. Enforcement action is expected to follow later this year, under the CMA's new powers to impose fines of up to 10% of a company's global turnover for breaches of consumer protection law. See here for our overview.

2. Greenwatch: How widespread is greenwashing by UK businesses? Which? Investigates

A recent report published by the consumer body Which?, ("How green are green claims?"), considers the prevalence of potentially misleading green claims in the UK. These are claims that show how a product, service, brand or business provides a benefit or is less harmful to the environment. Which? assessed green claims against the Green Claims Code published by the CMA. The report highlights the continued occurrence of misleading green claims with 62% of sampled products failing checks relating to at least two or more of the Green Claims Code's principles. The report's findings therefore raise significant questions about the UK's current product regulatory and consumer protection frameworks, and whether more needs to be done to tackle greenwashing.

Both the findings of the report and the assessment methodology applied by Which? provide useful guidance to businesses looking to assess the compliance of their claims and the risk of enforcement action. See here for further details.

State aid and procurement

1. Simplified State aid rules to spur the Clean Industrial Deal

On 25 June 2025, the European Commission adopted its State aid framework accompanying the Clean Industrial Deal (CISAF). The soft law document sets out how Member States can design State aid measures to support the objectives of the Clean Industrial Deal (CID). The CISAF replaces the Temporary Crisis and Transition Framework (TCTF) and will be in force until 31 December 2030, providing a stable planning horizon for Member States and businesses.

The CISAF provides a wide-ranging and flexible toolkit for Member States to design State aid measures that accelerate renewable and low-carbon energy deployment, facilitate industrial decarbonisation, and boost clean technology manufacturing across the entire value chain. It expands support to all technologies contributing to the net-zero transition, including renewables, low-carbon fuels, and nuclear technologies. It allows for a simplified and quicker assessment of State aid schemes in the relevant areas. See here.

2. Consultation on further reforms to UK public procurement regime

The UK Government consulted on further reforms to the public procurement regime, building on the Procurement Act 2023, to support implementation of the new National Procurement Policy Statement (NPPS). The proposed changes aim to enhance national security, strengthen support for small businesses and promote the creation of local jobs and skills. Key measures include mandatory targets and reporting for small and medium sized enterprises (SMEs) and voluntary community and social enterprises (VCSEs) spend, stricter prompt payment obligations, increased flexibility for people-focused services and new obligations for contracting authorities to consider social value and local economic impact in major contracts. See here for our overview.

3. ECJ strikes down State aid for Paks II nuclear for procurement failures

On 11 September 2025, the Court of Justice of the European Union (ECJ) delivered a significant judgment annulling the 2017 decision of the European Commission approving Hungarian State aid for the Paks II nuclear power station. According to the ECJ Grand Chamber, the European Commission should have ascertained whether the direct award of the contract for the construction of two new reactors to a Russian company complies with EU public procurement rules. See our September 2025 update for our overview of the case and its implications.

Trade

1. Overview of the EU's 18th sanction package

On 18 July 2025, the EU adopted its 18th package of sanctions against Russia, with the corresponding legal acts published in the Official Journal of the EU on 19 July 2025. This new package introduces both economic and individual restrictive measures, targeting Russia’s energy, banking, and military sectors, as well as its trade relations with the EU. A central element of the package is the lowering the existing price cap on Russian crude oil from USD 60 to USD 47.60 per barrel, an action taken in concert with the UK but not (at least for now) the US and other G7. See our July 2025 update.

2. Annual Report on EU Trade Defence: Activities reach record high in 2024

The European Commission has published its 43rd Annual Report on EU Trade Defence Activities, marking 2024 as a landmark year in the bloc’s efforts to protect its industries from unfair international competition. This surge in activity aligns with the new Political Guidelines released by President von der Leyen in July 2024. The report highlights a significant increase in anti-dumping, anti-subsidy, and safeguard investigations, with a record 33 new cases initiated (nearly triple the annual average), driven largely by concerns over imports from China. See here for further details.

3. Annual Report on EU Trade Defence: Activities reach record high in 2024

On 17 June 2025, the European Commission published its Defence Readiness Omnibus proposal which is designed to address legal and administrative obstacles which the defence industry currently faces and which slow down a speedy ramp-up of defence capabilities in the EU. As an omnibus bill, the Defence Readiness Omnibus is not one single legislative act. It consists of different measures, including: a communication by the European Commission setting out the rationale behind the Defence Readiness Omnibus, a European Commission Notice on the sustainable finance framework and seven proposals for new regulations, directives or delegated regulations to address specific legal and administrative hurdles. See here for further details.

4. U.S. Tariffs: Navigating The New Realities of International Trade

The U.S. tariff regime is now highly fragmented, with multiple overlapping measures that can apply to a single import transaction. Tariffs are often cumulative, layered on top of each other and on pre-existing base tariff rates. Determining the correct tariff exposure now requires a detailed, fact-specific analysis, considering the country of origin, product valuation and classification, applicable trade agreements, and the latest policy changes. Companies must prepare for ongoing volatility and uncertainty as the new normal in global trade. Mastery of customs law fundamentals (rules of origin, classification, and valuation) has become more essential than ever. See here for our overview of the new U.S. tariffs landscape.