When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).
This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.
1. The CMA’s merger caseload hasn’t increased as much as expected…
The CMA predicted a 50% increase in the number of merger cases post-Brexit. This has not materialized. Between April 2015 and March 2020, the CMA reviewed on average 60 transactions annually. As the pandemic took hold, this dropped to just 38 between April 2020 and March 2021.
Between April and December 2021, the CMA opened 41 merger investigations, suggesting the CMA will be on course to review 60 transactions by the end of March – a 50% increase on 2020-21, but still down on the CMA’s pre-pandemic caseload.
2. … but outcomes of investigations into transactions also reviewed by the Commission have generally been consistent.
Since Brexit, the CMA has reviewed 11 transactions which were also notified to the Commission. Only two resulted in different outcomes: one transaction cleared unconditionally by the CMA at Phase 1 required remedies at Phase 2 to obtain Commission clearance; and one where the CMA is undertaking a Phase 2 investigation despite the transaction being cleared with remedies at Phase 1 by the Commission.
While this broad consistency of decisions is likely to be welcomed by businesses, it should also be recalled that:
- Mergers often raise different issues in different geographic markets. Obtaining unconditional clearance in one jurisdiction does not automatically increase the likelihood of unconditional clearance in another.
- The merger statistics published by the CMA do not take into account any cases informally probed by the CMA’s Mergers Intelligence Committee, where the CMA ultimately decided not to open a Phase I merger investigation.
As the CMA continues to settle into its post-Brexit role, there remains the possibility that merger enforcement may continue to increase. In particular, the entry into force of the UK’s new National Security and Investment Act may lead to close collaboration between the CMA’s Mergers Intelligence Committee and the new Investment Security Unit in respect of transactions that fall to be reviewed under both merger control and national security legislation.
3. Parallel enforcement cases have so far been limited to dominance cases in the tech sector…
While the CMA indicated that enforcement activity may fall as it adjusted to its post-Brexit workload, there is little clear evidence of this. Indeed, the CMA entered 2022 with an active caseload, including a number of pricing probes and investigations into conduct in the pharmaceutical sector.
At the present time there are no parallel investigations in the EU and UK into suspected cartel conduct. This is perhaps unsurprising: the Commission retains jurisdiction to review suspected anticompetitive conduct affecting competition within the EU which took place prior to Brexit, and private enforcement in the UK courts has increased significantly in recent years. As such, it may take time before the two authorities open parallel investigations into cartel conduct that has taken place since the UK’s exit from the EU.
However, the CMA has opened three cases into suspected abuse of dominance by companies active in the tech sector, which are also being probed by the Commission. The CMA has stated it is working closely with the Commission in respect of one of these investigations – and this is likely to be the acid test for how closely the regulators’ approach will vary in practice.
4. … which highlights both authorities’ focus on digital markets regulation.
Both the CMA and the Commission are advocating for tighter regulation of digital markets. The UK government is currently consulting on a new “pro-competitive regulatory regime” for digital markets, which the CMA envisages will establish a system of ex ante regulation for firms with Strategic Market Status (“SMS”, or substantial, entrenched market power in at least one digital activity).
The Commission is also expected to publish the final text of the Digital Markets Act in April, which proposes a separate system of ex ante regulation for firms designated as “gatekeepers”.
There are key differences between the two proposals:
- The concept of “gatekeeper” under the DMA appears narrower than SMS. Gatekeepers are proposed to be limited to companies active in core platform services, which meet specified turnover thresholds (as well as key qualitative criteria). Under the UK proposals, firms with SMS may have market power in any digital activity, irrespective of their turnover. While it’s probable that the Commission and the CMA’s initial designation activity may target many of the same global companies, it is possible that smaller companies may eventually find themselves within scope of the CMA’s regime, but not the Commission’s.
- The proposed UK regime also reserves more interventionist powers to the CMA. In particular, the CMA proposes that it will have material powers to undertake “pro-competitive interventions” in digital markets. While the scope of potential pro-competitive interventions will necessarily reflect the specific facts and circumstances of individual markets and undertakings, the UK regime is likely to require firms with SMS to report proposed transactions to the CMA and potentially seek clearance ahead of closing. There is, therefore, scope for divergence between the two proposed regimes, potentially leading to a higher compliance burden for digital businesses operating in the EU and the UK.
5. Sustainability is another key focus for both authorities, but the CMA appears to consider this on a narrower basis than the Commission.
Both the CMA and the Commission have acknowledged increased demand from businesses for guidance on how to collaborate to achieve sustainability goals while complying with competition law.
The CMA has clearly linked the concept of “sustainability” with the transition to a low carbon economy, in line with the UK government’s net zero target. Although the “sustainability debate” has increasingly focused on broader concepts of sustainability (such as supply chain practices and human rights protections), the CMA’s public statements have typically focused on more ‘traditional’ environmental sustainability; there are few indications that the CMA is planning to consider these wider aspects of sustainability.
Nonetheless, within these parameters, the CMA has been active in competition and consumer enforcement activity, and has been asked by the UK government to provide more general advice on how competition tools can better support net zero and sustainability goals. A market study into electric vehicle charging resulted in an investigation into long-term exclusivity agreements between a chargepoint operator and three operators of motorway services. This was settled with a forward looking remedy, with the chargepoint operator agreeing not to enforce its exclusivity for the full term, to encourage new market entrants ahead of the prohibition on purchasing new petrol or diesel cars in the UK in 2030.
By contrast, and with the exception of the agricultural sector (in respect of which the Commission plans to consult on specific guidance), the Commission has taken a much wider approach to the concept of sustainability. It has indicated that collaboration for sustainable aims is possible within the existing competition law framework, and that sustainability may be taken into account as an efficiency in applying the individual exemption under Article 101(3) TFEU. Further, non-sector specific guidance is only likely to be in the form of the vertical agreements and horizontal cooperation guidelines or, for “novel” issues, by individual guidance letters. However, the Commission has not ruled out adopting decisions that competition law is not applicable to individual sustainability objectives.
6. Over time, divergence is likely in the application of block exemption regulations.
Block exemption regulations for vertical agreements, R&D agreements and specialisation agreements, which were all retained in UK law post-Brexit, are all due to expire this year. The CMA is recommending to the UK government whether these block exemption regulations need to be replaced.
The CMA has recommended that the UK government replaces the Vertical Agreements Block Exemption Regulation with a UK Order on 1 June 2022. While the CMA acknowledged that divergence from the EU risked creating an increased compliance burden, should the UK government follow the CMA’s recommendation in full, there are likely to be some key differences between the two (discussed in more detail here). Businesses seeking to benefit from exemptions under EU and UK law will therefore have to decide whether to operate different agreements in different jurisdictions, or whether to amend their existing agreements to comply with both the replacement block exemptions in the EU and any UK Orders.
Notably, the CMA has proposed that the UK Order should only last six years – only half the proposed duration of the replacement EU regulation. This allows the CMA to review the market in light of factors such as the growth in online sales, Brexit and the impact of the pandemic, as well as any findings by the Office of the Internal Market as to how businesses can supply products and services across the UK’s devolved nations. This gives scope for further divergence within a relatively short period of time.
The CMA’s post-Brexit transition is clearly still developing. It is still establishing new units and responsibilities (including the Subsidy Advice Unit, which will have a role in the operation of the UK’s new subsidy control regime) and as it continues to forge alliances with other international and sectoral regulators, it is inevitable that there will be increased divergence with EU law. How fast this happens – and the degree of divergence – also depends on any eventual outcome of proposals to reform UK competition law and the appointment of a replacement CMA Chief Executive when Andrea Coscelli steps down in July.