I Introduction

For as long as the United Kingdom remains an EU Member State, the provisions of Article 102 of the Treaty on the Functioning on the European Union (TFEU) will continue to apply in the United Kingdom.2

The United Kingdom has also implemented national legislation that substantially mirrors the provisions of Article 102, contained in Chapter 2 of the Competition Act 1998 (Act). Section 18 of the Act provides that, subject to limited exclusions, ‘any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom’ (Chapter 2 Prohibition). The UK competition authorities and courts are required to interpret the relevant provisions of the Act consistently with EU competition law wherever possible, and to have regard to relevant decisions and statements of the European Commission.3

Public enforcement of UK and EU competition law is carried out primarily by the Competition and Markets Authority (CMA).4 In addition to the CMA, the following sectoral regulators have the power to enforce competition law in their sectors:

Regulator

Sector

Civil Aviation Authority (CAA)

Air traffic services and airport operation services in the UK

Financial Conduct Authority (FCA)

Financial services in the UK

Monitor (part of NHS Improvement)*

Healthcare services in England

Northern Ireland Authority for Utility Regulation

Gas, electricity, water and sewerage services in Northern Ireland

Office of Communications (Ofcom)

Electronic communications, broadcasting and postal services in the UK†

Office of Gas and Electricity Markets (Ofgem)

Gas and electricity in Great Britain

Office of Rail and Road (ORR)

Railway services in Great Britain

Payment Systems Regulator (PSR)‡

Payment systems in the UK

Water Services Regulation Authority (Ofwat)

Water and sewerage in England and Wales

* NHS Improvement, established in April 2016, is the operational name for the organisation that combines Monitor with several other National Health Service (NHS) bodies. Monitor remains the statutory body for competition law purposes.

† In the telecommunications sector, Ofcom also has the power to oversee the BBC (from 3 April 2017, including its impact on fair and effective competition) and impose regulatory conditions on undertakings found to have ‘significant market power’. Significant market power is equivalent to the concept of dominance under EU and UK competition law.

‡ The PSR has been established as a separate body under the FCA, with its own managing director, board and budget.

The United Kingdom has also established a specialist competition court, the Competition Appeal Tribunal (CAT). Any person who is found to have infringed Article 102 or the Chapter 2 Prohibition by the CMA or a regulator has a right of appeal to the CAT.5 The CAT can also hear follow-on damages claims in competition cases and, since October 2015, has had the power to hear stand-alone claims for damages or injunctive relief, or both. The civil courts can also hear competition claims, but may transfer cases to the CAT.

When enforcing Article 102 and the Chapter 2 Prohibition, the CMA and regulators have regard to the European Commission’s ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’.6 The CMA also has regard to its own substantive and procedural guidance (including previous OFT guidance that the CMA has formally adopted).7 These include:

    1.  ‘Abuse of a dominant position’, December 2004;
    2.  ‘Assessment of market power’, December 2004;
    3.  ‘Guidance on the CMA’s investigation procedures in Competition Act 1998 cases’, March 2014;
    4.  ‘Involving third parties in Competition Act investigations’, April 2006;
    5.  ‘CMA Powers of Investigation of anti-competitive behaviour’, December 2004; and
    6.  ‘Competition Law Application and Enforcement’, December 2004.

Separately, the CMA has the power to investigate markets as a whole by carrying out market studies. At the end of a market study, the CMA can make recommendations to businesses and government, or initiate enforcement actions under other statutory powers (including the Chapter 2 Prohibition and Article 102). If the CMA has reasonable grounds for suspecting that a feature of a market is preventing, restricting or distorting competition, it can initiate a full market investigation. A market investigation can also be initiated by any of the concurrent regulators (listed above) or by the Secretary of State. Following a market investigation, the CMA has the power to tackle any features having an adverse effect on competition (including unilateral conduct features) by imposing a wide range of remedies. The identification of anticompetitive features in a market investigation is not a finding that market participants have infringed the law, and remedies are intended to be prospective rather than punitive.

II Year in Review

i Levels of public enforcement

The CMA has investigated relatively few dominance cases in recent years, but is currently pursuing six dominance investigations. Two main reasons are usually cited to explain the relative lack of enforcement by the CMA:

  1. cross-border cases affecting the United Kingdom often fall to be investigated by the European Commission, depriving the CMA of jurisdiction to investigate the same conduct in parallel (which is likely to change after the United Kingdom leaves the EU); and
  2. cases involving natural monopolies generally fall to be investigated by the concurrent sectoral regulators.

On top of this, the CMA can investigate unilateral behaviour through market studies and investigations, which allows it to address perceived competition concerns in a market without the need for formal enforcement action.

Recent government reforms have sought to encourage greater use of competition law enforcement by the sectoral regulators in particular. These regulators now have a duty to apply ex post competition law in preference to ex ante regulation where possible. The government has placed a responsibility on the CMA to monitor the work of sectoral regulators and, if appropriate, take enforcement action in their sectors. The CMA is also obliged to publish an annual report on the functioning of the concurrency regime as soon as practicable after the end of each financial year,8 and the Secretary of State retains a right to remove concurrent powers from sectoral regulators if they are not used.

Nevertheless, in February 2016, the National Audit Office (NAO) published a critical report into the UK competition regime that strongly encouraged the CMA and the concurrent sectoral regulators to find ways to increase levels of competition enforcement. CMA enforcement activity (in dominance cases and more generally) has increased following the publication of the NAO report. Dr Michael Grenfell, the CMA’s Executive Director for Enforcement, referred in November 2017 to ‘the CMA’s recent efforts to ramp up competition enforcement’.9 In 2017, the CMA and sectoral regulators opened four new dominance cases, issued statements of objections in four cases, accepted binding commitments in one case, and closed three other cases (two on grounds of administrative priorities, and one where it found there were no grounds for action). No infringement decisions were issued in dominance cases in 2017.

ii Major developments in public enforcement

The CMA issued four statements of objections in 2017 and closed one investigation on the basis of binding commitments. One of the statements of objections was issued to new parties that had recently acquired a business to which a statement of objections had already been issued.

All four of the statements of objections issued by the CMA in 2017 concern the supply of pharmaceutical products to the NHS, including an allegation that Concordia charged the NHS excessive prices. This is the latest in a series of excessive pricing cases. At the end of 2016, the CMA imposed record fines on Pfizer and Flynn (of circa £90 million) for increasing the price of phenytoin sodium by 2,600 per cent, and issued a statement of objections to Actavis UK for increasing the price of hydrocortisone tablets by over 12,000 per cent. Appeals by Pfizer and Flynn were heard before the CAT in November 2017. The CMA’s enforcement activity in respect of allegedly excessive prices represents a departure from its historic reluctance to bring such cases, as well as marking a shift from its previous focus on exclusionary abuses.

Infringement decisions, statements of objections and commitments decisions

Concordia and Actavis UK

In March 2017, the CMA issued a statement of objections to Concordia and Actavis UK relating to the supply of hydrocortisone tablets. The CMA alleges that the parties have infringed Article 101 and the Chapter 1 Prohibition (prohibitions on anticompetitive agreements) by agreeing that Actavis UK would supply Concordia with hydrocortisone tablets at a low price for resale in the UK, thereby incentivising Concordia not to enter the market with its own competing version of hydrocortisone tablets. The CMA also alleged that Actavis UK had abused its dominant position by inducing Concordia to delay its independent entry into the market.

Merck Sharp & Dohme Ltd

In May 2017, the CMA issued a statement of objections to Merck Sharp & Dohme Ltd (MSD), alleging that MSD had operated an anticompetitive discount scheme for the biological medicine Remicade. The CMA provisionally found that MSD sought to restrict competition from generic ‘biosimilar’ products through a discount scheme. Remicade, a brand of infliximab, is used to treat patients with gastroenterology and rheumatology conditions such as Crohn’s disease and arthritis.

ATG Media

In June 2017, the CMA accepted binding commitments and closed its investigation into the supply by ATG Media of live online bidding (LOB) services to auction houses. LOB platforms are used by auction houses to allow for LOB without bidders having to attend the auction house in person.

The CMA was concerned that ATG Media had imposed restrictions on auction house customers, preventing them from using a competing LOB platform. These restrictions included provisions requiring auction houses to offer no less favourable terms to bidders introduced through ATG Media’s platform as to those introduced through third-party or in-house LOB platforms. Other potentially exclusionary provisions included exclusivity conditions and restrictions on the promotion of competing services by competitors.

The CMA closed the case on the basis of binding commitments that ATG Media would not enter into any arrangement restricting auction houses from using competing suppliers; charging lower fees to users of other LOB platforms; or advertising the services of other LOB platforms. The CMA also received an application under Section 35 of the Act for interim measures, which became redundant (shortly before the CMA was due to decide whether to impose interim measures) when the CMA accepted commitments.

Intas Pharmaceuticals Limited and Accord Healthcare Limited

In August 2017, the CMA issued a statement of objections to Intas Pharmaceuticals Limited and Accord Healthcare Limited, which acquired Actavis UK in January 2017, alleging that Actavis UK was charging excessive and unfair prices in relation to the supply of hydrocortisone tablets in the UK, and proposing to find Intas and Accord jointly and severally liable for the alleged infringements during their period of ownership. In December 2016, the CMA had issued a statement of objections alleging that Actavis UK had breached UK and EU competition law by charging excessive and unfair prices in relation to the supply of hydrocortisone in the UK.

Concordia

In November 2017, the CMA issued a statement of objections to Concordia concerning alleged excessive pricing of liothyronine tablets. The CMA provisionally found that the per-pack price for liothyronine tablets, which are primarily used to treat hypothyroidism, rose from around £4.46 before the product was ‘de-branded’ in 2007 (and so no longer subject to price regulation) to £258.19 by July 2017, an increase of almost 6,000 per cent, while production costs remained broadly stable. The cost to the NHS rose from £600,000 in 2006 to more than £34 million. Although liothyronine tablets are not the primary treatment for hypothyroidism, the CMA found that for many patients there is no suitable alternative and, until 2017, Concordia was the only supplier. The statement of objections was also addressed to private equity firms that previously owned entities now forming part of Concordia.

Conclusion of cases without adopting infringement or commitments decisions

In February 2017, the CMA closed an investigation into tying practices in the medical equipment sector on administrative priority grounds, without disclosing the names of the parties. The CMA’s case closure statement indicated, in particular, that ‘the impact of the observed conduct on the market for the relevant medical equipment is unclear’.

In June 2017, the CAA closed its investigation into access to facilities for airport car parking operators on grounds of administrative priority. This followed the authority’s decision in December 2016 finding that Manchester Airports Group plc and Prestige Parking Ltd had agreed to fix prices for car parking at East Midlands Airport.

In August 2017, the CMA closed an investigation into a suspected abuse of dominant position by Unilever in the market for single-wrapped impulse ice cream in the UK, finding that there were no grounds for action. The CMA opened its investigation in February 2017. Unilever was offering single-wrapped impulse ice cream products free of charge or at a reduced price if retailers purchased a minimum number of single-wrapped impulse ice cream products from Unilever (e.g., ‘buy eight cases, get four cases free’). The CMA assessed whether these offers were likely to produce an exclusionary effect by providing incentives to retailers to purchase a large proportion of their total requirements from Unilever with the likely effect of filling (or nearly filling) retailers’ freezers, and so of restricting competition in the supply of single-wrapped impulse ice cream products. The CMA concluded, however, that Unilever’s promotional deals were unlikely to have had an exclusionary effect (given, for example, that sales to retailers were made on a weekly or even daily basis, and that the duration of the promotions was generally short).

iii Current abuse of dominance investigations

The CMA and sectoral regulators are currently investigating eight suspected abuse of dominance cases, summarised in the table below.

Sector

Investigating authority

Conduct

Case opened*

Pharmaceuticals

CMA

Suspected anticompetitive agreements and abuse of dominance in relation to the supply of generic pharmaceuticals.

October 2017

Pharmaceuticals

CMA

Suspected anticompetitive agreements and abuse of dominance in relation to the supply of generic pharmaceuticals.

October 2017

Energy

Ofgem

Potential abuse of a dominant position by a company providing services to the energy industry

August 2017

Pharmaceuticals

CMA

Suspected unfair pricing in the supply of liothyronine tablets by Concordia.

October 2016

Pharmaceuticals

CMA

Suspected abuse of dominance (inducement to delay entry) by Actavis UK in relation to hydrocortisone tablets (as well as suspected anticompetitive agreements between Concordia and Actavis UK).

April 2016

Pharmaceuticals

CMA

Suspected abuse of dominance (excessive pricing) by Actavis UK in relation to hydrocortisone tablets.

March 2016

Pharmaceuticals

CMA

Discounts offered for Remicade, a branded pharmaceutical product, by Merck Sharp & Dohme Ltd.

December 2015

Postal services

Ofcom

Complaint by TNT Post UK Limited (now Whistl) about the terms offered by Royal Mail for certain letter delivery services to downstream access customers.

April 2014

* ‘Case opened’ refers to the date on which the authority opened its investigation (where known) or announced that it had opened an investigation

iv Major developments in private actions in 2016 and 2017
Unwired Planet

In April 2017, the High Court found that Unwired Planet had not abused its dominant position by seeking an injunction against Huawei for infringing its standard-essential patents (SEPs). Unwired Planet owns a portfolio of SEPs relating to mobile telephone technology. The SEPs were subject to commitments given to the European Telecommunications Standards Institute to license on fair, reasonable and non-discriminatory (FRAND) terms. Unwired Planet sought an injunction against Huawei (a manufacturer of mobile telephones) for infringing those patents. In response, Huawei argued that seeking an injunction was an unlawful abuse of dominance because Huawei had offered to pay FRAND terms for a licence to use the patented technology. While the case has broader implications for the resolution of SEP disputes, the competition law arguments made by Huawei covered five main grounds:

  1. premature injunction proceedings: the Court held that it was not necessarily an abuse of dominance for an owner of SEPs to seek an injunction without complying precisely with the scheme for negotiation of FRAND terms set out in the CJEU’s judgment in Huawei v. ZTE. The Court found that, in this case, it was ‘obvious … that the issuing of proceedings did not indicate that the SEP owner did not wish to license its SEPs to Huawei’ (paragraph 753);
  2. excessive or unfair prices: the Court held that offering non-FRAND terms during the course of negotiations did not infringe Article 102(a) unless the terms were ‘so far above FRAND as to act to disrupt or prejudice the negotiations themselves’ (paragraph 765). On the facts, the Court found that the terms offered by Unwired Planet did not cross this threshold.
  3. multi-jurisdictional tying: Unwired Planet insisted that Huawei accept a worldwide licence, while Huawei sought to license only the UK SEP portfolio. After discussion of the CJEU’s judgments in Microsoft and Post Danmark, the Court found that foreclosure of competition had not been established by offering only a worldwide licence: ‘Given the prevalence of worldwide licences and the prevalence of assessment based on patent families, I am not prepared to assume that the tying of a SEP licence in one country to a SEP
    licence in another country has by its nature a competitive foreclosure effect. A close analysis of the actual effects would be required and that has not been done’ (paragraph 550);
  4. tying SEP licences and non-SEP licences: the Court found that, although one Unwired Planet offer had tied SEP and non-SEP licences, it had later offered to separate out the SEPs: ‘I am in no doubt that a patentee subject to a FRAND undertaking cannot insist on a licence which bundles SEPs and non-SEPs together. But it does not follow from this that it is contrary to competition law to make a first offer which puts SEPs and non-SEPs together’ (paragraph 787); and
  5. discrimination: the Court aligned the ‘non-discrimination’ limb of FRAND with the concept of abusive discrimination under Article 102. Specifically, the Court held that the non-discrimination limb of FRAND does not consist of a further ‘hard-edged’ component that would justify a licensee demanding a lower rate than the FRAND rate simply because another similarly situated licensee had obtained more favourable terms. The non-discrimination obligation in FRAND is only triggered where the discrimination would distort competition between the two licensees.

Although it rejected Huawei’s competition law arguments, the Court confirmed that a FRAND undertaking was a binding legal commitment on which third parties (including Huawei) could rely (without needing to rely on competition law), and that Unwired Planet’s previous offers were not FRAND. The Court identified the terms that would be FRAND, and in particular agreed with Unwired Planet that it was entitled to insist on a licence for its worldwide SEP portfolio, rather than for its UK SEP portfolio only.

In conclusion, the Court found:

  1. Unwired Planet had established that its patents had been infringed;
  2. Unwired Planet was not in breach of the competition law;
  3. Huawei had not been prepared to take a licence on the terms the Court found to be FRAND (as it had not agreed to a worldwide licence); and
  4. accordingly, a final injunction to restrain infringement by Huawei should be granted.

In June 2017, the final injunction was granted but stayed pending appeal.

Socrates

In May 2017, the CAT found that the Law Society of England and Wales had abused its dominant position in the market for the supply of accreditation to law firms providing residential conveyancing in England and Wales (though its Conveyancing Quality Scheme (CQS)).

The CQS incorporates an element of mandatory training, including training in mortgage fraud and anti-money laundering (AML). Socrates, a rival provider of AML training courses, claimed that the requirement under the terms of the CQS that members of the scheme must obtain these training courses exclusively from the Law Society is an abuse of a dominant position.

The CAT found that accreditation through the CQS scheme was a ‘must-have’ product for firms practising residential conveyancing, as a substantial body of mortgage lenders required CQS accreditation as a condition of panel membership, and that the Law Society was dominant in the market for the supply of such accreditation. The Law Society had abused that dominant position by tying to the grant of CQS accreditation the sale of AML courses provided by the Law Society.

The Law Society argued that its conduct was objectively justified on the grounds that control over the courses’ content allowed for lender input and uniformity. The CAT found, however, that there was limited evidence for those assertions, and that the Law Society could achieve the same objective in a less restrictive manner by specifying topics or a syllabus.

The issue of liability was determined separately from any question of quantum. Following judgment on liability, the parties settled, and the claim was discontinued in September 2017.

Other cases before the CAT and the High Court are summarised below.

Case

Allegation

Status

UKRS Training Limited v. NSAR Limited

Alleged abuse of dominance on the market for accreditation services to providers of training to work on Network Rail infrastructure.

Pending. Claim stayed in October 2017 pending the conclusion of the appeal of a decision of Network Rail to suspend UKRS from providing accredited training.

Labinvesta Limited v. Dako Denmark

Alleged abuse of dominance by Dako Denmark on the market for the supply of reagents for immunohistochemistry tests for conducting cancer diagnostics in Belarus.

Withdrawn in June 2017. Amended claim launched in January 2017.

NVIDIA Corporation and others v. Qualcomm Inc and others

Predatory pricing and loyalty-inducing rebates. The same allegations are also being investigated by the European Commission, which issued two statements of objections in December 2015.

Pending. Claim launched in December 2015.

Secretary of State for Health and others v. Servier Laboratories Ltd and others

Follow-on damages claim relating to the European Commission’s ‘pay for delay’ infringement decision against Servier and others concerning the supply of perindopril.

Pending. Claims launched in December 2011 and suspended during the Commission’s investigation. Servier granted permission in October 2016 to plead that the claimants failed to take reasonable steps to encourage switching from perindopril to cheaper generic alternatives.

UK Regulations implementing the EU Damages Directive came into force on 9 March 2017. Although many of the provisions of the Damages Directive did not require amendment of the UK regime, and many changes relate primarily to cartel infringements, the Regulations contain several provisions that may have a bearing on UK claims for damages from abuse of dominance. For example, the Regulations:

  1. address the burden of proof with respect to the passing-on defence;
  2. suspend the limitation period while competition authority investigations or consensual dispute resolution processes are ongoing;
  3. exclude the award of exemplary damages, as noted below;
  4. exempt small and medium-sized enterprises, as well as defendants that settle with the claimant, from the principle of joint and several liability; and
  5. amend the rules on disclosure.

III MARKET DEFINITION AND MARKET POWER

The assessment of market definition and market power in the United Kingdom is consistent with EU law. The UK competition authorities and courts are required to interpret the provisions of the Act consistently with EU competition law wherever possible, and to have regard to relevant decisions and statements of the European Commission.

One difference between EU and UK law is that under the Chapter 2 Prohibition, there is no need to show a cross-border effect, and no minimum market size threshold: a ‘dominant position’ refers to a dominant position in the United Kingdom or any part of the United Kingdom. This means that dominant positions can be found even for small suppliers in small markets.

IV ABUSE

i Overview

The assessment of abuse in the United Kingdom is consistent with EU law. The UK competition authorities and courts are required to interpret the provisions of the Act consistently with EU competition law wherever possible, and to have regard to relevant decisions and statements of the European Commission (although this is likely to change after the UK leaves the EU). There is no exhaustive list of abuses under Section 18 of the Act (the equivalent of Article 102). Any conduct by a dominant undertaking that excludes competitors or exploits customers is potentially abusive, unless that conduct is objectively justified. Moreover, the High Court has held that conduct should be looked at ‘in the round’, rather than seeking to identify on a narrow basis whether conduct departs from ‘competition on the merits’.

ii Exclusionary abuses

Enforcement action in the United Kingdom has generally focused primarily on exclusionary abuses (although, more recently, the CMA has pursued a number of exploitative abuse cases relating to suspected excessive pricing).

The OFT decision in Gaviscon is notable in that it demonstrates the OFT’s (and, by extension, the CMA’s) willingness to grapple with novel abuses. The case concerned abusive behaviour by Reckitt Benckiser, which held a dominant position in the market for alginates and antacids. Reckitt Benckiser withdrew its Gaviscon Original product from sale to the NHS when the product no longer benefited from patent protection, even though it remained on sale ‘over the counter’. Reckitt Benckiser replaced Gaviscon Original with a similar product, Gaviscon Advance, which continued to benefit from patent protection. Because of the way the NHS computer system operated, the withdrawal of Gaviscon Original made it more difficult for doctors to prescribe alternative generic products as opposed to Gaviscon Advance. The OFT concluded that this action was expected to ‘hinder the development of generic competition’ to Gaviscon, thereby excluding competition from the market. Reckitt Benckiser entered into a settlement agreement with the OFT, agreeing not to challenge its decision and to pay a fine of £10.2 million.

In Cardiff Bus, the OFT investigated exclusionary behaviour preventing a competing bus company, 2 Travel, from establishing a rival service to the dominant incumbent. The case concerned both price and non-price predation. Cardiff Bus reacted to the launch of a rival ‘no-frills’ service by introducing its own no-frills service on the same routes, without a valid business case and running at a loss. In both Cardiff Bus and Gaviscon, the OFT uncovered evidence of anticompetitive intent.

The focus on exclusionary conduct is borne out by other recent investigations. For example, in addition to the cases mentioned in Section II:

  1. In December 2015, the ORR closed an investigation into Freightliner on the basis of binding commitments. The ORR had investigated the terms of Freightliner’s agreements with customers for the provision of rail freight services between deep-sea container ports and inland destinations. The terms included exclusive purchasing obligations, minimum volume commitments and suspected loyalty-inducing rebates. Certain customers were also prevented from reselling capacity purchased under the contracts. Freightliner committed to remove or amend the provisions in its contracts to address the ORR’s concerns.
  2. In June 2015, the CMA closed an investigation into suspected loyalty-inducing rebates in the pharmaceutical sector on the grounds of administrative priorities. The case was closed before any statement of objections was issued. The CMA nonetheless sent a warning letter to the relevant party, identifying potential concerns that may arise in the context of discounts and rebates.
  3. In October 2014, Ofcom closed an investigation into a suspected margin squeeze by BT in relation to superfast broadband services following a complaint by TalkTalk Telecom Group plc.
  4. In September 2014, the CMA closed an investigation into suspected abuse of dominance by Epyx concerning the market for vehicle service, maintenance and repair platforms on the basis of binding commitments. The CMA had investigated whether Epyx’s contracts prevented customers from switching to competing suppliers.
  5. In June 2014, the CMA closed an investigation into suspected abuse of dominance by Certas Energy UK Limited (previously GB Oils Limited) concerning the wholesale supply of road fuels in the Western Isles of Scotland on the basis of binding commitments. GB Oils had entered into five-year exclusive contracts with filling stations preventing them from sourcing fuel from other suppliers.
  6. In 2011, the OFT issued a reasoned ‘no grounds for action’ decision in relation to Idexx Laboratories Limited, a supplier of in-clinic companion animal diagnostic testing equipment. The OFT investigated whether Idexx had engaged in anticompetitive bundling and predatory pricing, concluding that there was insufficient evidence that Idexx’s conduct was likely to restrict or impair effective competition in the relevant markets.
  7. In 2010, the OFT issued a similar ‘no grounds for action’ decision following an investigation of Flybe. The investigation followed a complaint that Flybe had engaged in predatory conduct that excluded a rival airline, Air Southwest, from certain routes. It was clear that Flybe had priced below its average avoidable costs of entry. However, the OFT noted that Flybe was itself a new entrant, and that it was normal commercial practice for an airline in this position to operate at a loss. The situation could therefore be distinguished from the position of a dominant incumbent reacting to new entry.
iii Discrimination (including discriminatory pricing)

Discrimination cases in the United Kingdom have also tended to focus on exclusionary conduct. For example, in 2006 the ORR found that English, Welsh and Scottish Railway (EWS) had engaged in abusive discriminatory conduct through the prices it charged for access to its coal haulage services. The ORR found that EWS had discriminated against Enron Coal and Steel Limited (ECSL), offering prices that excluded ECSL from bidding effectively for coal haulage contracts. More recently, in SSE, Ofgem accepted binding commitments to address the provisional concern that an upstream supplier was offering discriminatory terms that favoured its own downstream business over those of competitors.

Similar concerns were considered by Ofwat in 2015 in Bristol Water and Anglian Water, and are being considered by Ofcom in its ongoing Royal Mail investigation.

In March 2015, Ofwat closed an investigation into Bristol Water on the basis of binding commitments. Bristol Water holds a local monopoly in the upstream market for the supply and maintenance of water infrastructure. Bristol Water is also active as a ‘self-lay’ contractor in a contestable downstream market, installing pipes that connect to the mains supply. Bristol Water was suspected of abusing its position in the upstream market by offering discriminatory terms to other self-lay contractors. The commitments require Bristol Water to ensure functional separation between its upstream and downstream services, and to ensure that its upstream business offers equivalent price and non-price terms to third-party contractors as offered to its own downstream business.

In December 2015, Ofwat closed an investigation into Anglian Water, finding no grounds for action. This followed a statement of objections issued in December 2011 and a supplementary statement of objections in April 2014. Anglian Water has a statutory monopoly for the provision of water and sewerage services in its region. Ofwat provisionally found that Anglian Water had implemented an illegal margin squeeze when pricing its upstream services to a rival, Independent Water Networks Limited (IWN), which was competing with Anglian Water for the contract to supply a new site with water and sewerage services. Ofwat eventually concluded that, as the site developer evaluated bids for water and sewerage services on a combined basis, it was unlikely that a margin squeeze applied to sewerage services alone would have made it materially more difficult for IWN to compete for the contract.

In July 2015, Ofcom issued a statement of objections to Royal Mail. Ofcom provisionally concluded that Royal Mail had engaged in unlawful price discrimination when setting prices for its bulk mail delivery services – prices charged to other postal operators that collect business mail and pass it to Royal Mail for final sorting and delivery. Ofcom alleged that Royal Mail charged higher prices to customers who competed with Royal Mail in delivery than to those who did not. Ofcom considered that these higher access prices could discourage entry into the downstream delivery market and increase barriers to expansion for postal operators seeking to compete with Royal Mail.

In Purple Parking, the High Court found that Heathrow Airport had abused a dominant position by offering discriminatory terms of access to providers of valet parking services. Heathrow permitted its own valet parking service access to its forecourts at Terminals 1 and 3, while requiring rival service providers (including Purple Parking) to relocate from the forecourts to the car parks. The High Court held that the forced relocation of rival providers placed them at a competitive disadvantage, and that this was sufficient to show abuse. The case is unusual in that there was no requirement to show that access to the forecourts was an essential facility or that competition would be eliminated entirely.

Similarly, in Streetmap, the High Court proceeded on the assumption that, at least in principle, a dominant undertaking might commit an abuse by promoting its own products or services in a separate market over those of a rival, provided the conduct had an appreciable effect on competition in the second (non-dominated) market and was not objectively justified. The Court did not specifically consider whether a dominant undertaking that was not an essential facility could be required to provide access to downstream rivals on equivalent terms to those offered to its own downstream business. This question was not necessary to decide the case on the facts, and arguably overlaps with questions currently being considered by the European Commission.

The Court went further in ATS v. London Luton Airport Operations. In this case, the Court concluded that a concession agreement granted to National Express by London Luton Airport Operations that carved out easyBus from the exclusivity provisions was discriminatory against other bus operators, even though Luton Airport Operations (the upstream supplier) was not active in the downstream bus market. The Luton Airport case clarifies a question previously considered in SEL-Imperial Ltd v. British Standards Institution. In this case, the High Court considered an action for strike out by the British Standards Institution of an abuse of dominance claim concerning the certification of replacement vehicle parts. The High Court refused to strike out the claim because it was insufficiently clear at the time whether decisions affecting a market in which the alleged dominant undertaking was not active could constitute an abuse. The recent decision by the European Court of Justice in MEO/GDA (discussed in the EU chapter) also confirmed that discrimination can be abusive even where the dominant firm is not active in the downstream market in which the discrimination is felt.

iv Exploitative abuses (including excessive pricing)

While the focus of UK enforcement action has mostly been on exclusionary conduct, excessive pricing has been considered in a number of cases, including Napp Pharmaceutical Holdings Limited (OFT decision of 2001), Thames Water Utilities Ltd/Bath House and Albion Yard (Ofwat decision of 2003) and Albion Water v. Ofwat (Ofwat decision appealed to the CAT, judgment of 2006). These cases have all considered the potential exclusionary effect of pricing behaviour. More recently, as noted above, the CMA fined Pfizer and Flynn Pharma for ‘pure’ excessive pricing (where there was no exclusionary effect), and it has two ongoing investigations in suspected excessive pricing. In the past year, the CMA also issued a statement of objections addressed to Actavis UK and opened an additional investigation concerning suspected excessive pricing.

The Court of Appeal grappled with the concept of excessive pricing in 2007 in Attheraces Limited v. British Horseracing Board Limited. This case concerned the price at which the British Horseracing Board made available pre-race data to Attheraces for sale to overseas bookmakers. Attheraces claimed that the price charged was excessive, as well as discriminatory, amounting to a refusal to supply. Attheraces was successful at first instance, but its claim was overturned by the Court of Appeal. The Court of Appeal accepted that, in principle, prices were excessive if they significantly exceeded the economic value of the product. However, in assessing economic value, it was insufficient merely to show that prices exceeded costs by a reasonable amount without having regard to the price customers (in this case the overseas bookmakers) were prepared to pay. The Court also noted that there was little evidence of harm to ultimate consumers (i.e., the betting public) from the alleged excessive pricing.

V REMEDIES AND SANCTIONS

i Sanctions

An undertaking that has abused a dominant position may be fined up to 10 per cent of its worldwide turnover in the last business year, calculated according to rules set out by statutory instrument. An undertaking may be fined only if its conduct was intentional or negligent (i.e., where the undertaking ought to have known that its conduct would result in a restriction or distortion of competition). Any undertaking whose turnover does not exceed £50 million benefits from immunity from fines for infringing the Chapter 2 Prohibition (but not Article 102), although immunity may be withdrawn on a prospective basis.

The CMA is obliged to publish guidance as to the appropriate amount of a penalty (which is subject to approval by the Secretary of State). The CMA (as well as concurrent regulators and the CAT) must have regard to that guidance when imposing penalties. The OFT published new guidance in September 2012, following a series of successful appeals against its fining decisions before the CAT. The guidance, which was updated by the CMA in April 2018, sets out a six-step approach to calculating fines:

  1. calculation of a starting point by multiplying the undertaking’s turnover in the relevant market by a percentage of up to 30 per cent depending on the seriousness of the infringement (under its previous guidance the maximum was 10 per cent);
  2. adjustment for duration;
  3. adjustment for aggravating and mitigating factors;
  4. adjustment to achieve sufficient deterrence and to ensure proportionality;
  5. adjustment to ensure the statutory cap (10 per cent of worldwide turnover) is not exceeded; and
  6. adjustment to reflect any leniency or settlement discount, or approval of a voluntary redress scheme, or both.

The CMA’s guidance states that it will generally apply a starting point percentage of between 21 and 30 per cent of relevant turnover when considering the most serious abuses of a dominant position. Seriousness will be assessed by reference to the nature and extent of the demand for that product, the structure and size of the market, the effect on competitors (and others), the need for deterrence and the damage caused to consumers.

ii Behavioural remedies (including interim measures)

On reaching an infringement decision, the CMA (or regulator) may give any person such directions as it considers appropriate to bring the infringement of Article 102 or the Chapter 2 Prohibition to an end. Directions may be enforced through the civil courts.

The CMA and regulators also have the power to impose interim measures. Interim measures may be imposed only where the authority has opened a formal investigation (and therefore has ‘reasonable suspicion’ of an infringement) and considers it necessary to impose interim measures as a matter of urgency for the purposes of preventing significant damage, or to protect the public interest.

The CMA is yet to impose interim measures, although it did consider and reject an application by Worldpay against Visa UK Limited in 2014. The OFT imposed interim measures only once (in 2006), and those measures were subsequently withdrawn. However, the legal threshold for the OFT to impose interim measures was one of ‘serious, irreparable damage’, whereas the CMA need only show the prospect of ‘significant damage’. This change in the legal threshold is intended to make it easier for the CMA to impose interim measures in future. Until now, parties seeking interim relief have generally found it necessary to resort to the civil courts.

In its investigation of ATG Media, described in more detail above, the CMA received an application under Section 35 of the Act for interim measures relating to allegedly exclusionary practices in respect of live online auction platform services. The application was made in November 2016. In June 2017, however, shortly before the CMA was due to make a final decision on whether to impose interim measures, the CMA accepted an offer of commitments from ATG Media and closed its investigation. Dr Michael Grenfell, the CMA’s Executive Director for Enforcement, referred to this case as ‘an example of how, when faced with an interim measures application in a fast-moving market, we were able to resolve the problem within just over 6 months’.

iii Structural remedies

The CMA and regulators have no power to impose structural remedies following a finding of abuse of dominance. However, it is possible for a dominance investigation to be closed on the basis of structural commitments. This has happened on one occasion.

In January 2013, Ofwat accepted binding commitments from Severn Trent Water, the first time it had accepted commitments in a competition case. The investigation considered whether Severn Trent Water was cross-subsidising its water analysis business, Severn Trent Laboratories, from its core regulated business. Specifically, Ofwat considered whether (as a result of cross-subsidisation) Severn Trent Laboratories was able to price below cost when competing for contracts with other providers of water analysis services. The commitments included the divestment of Severn Trent Laboratories. The decision to accept commitments in this case is notable not only because it included a structural divestment, but also because the decision to accept commitments departed from the published guidance, which states that commitments will not generally be accepted in serious abuse of dominance cases, such as predatory pricing.

In Bristol Water and SSE (mentioned above), Ofwat and Ofgem (respectively) accepted quasi-structural commitments under which the suppliers agreed to introduce functional separation between their upstream and downstream businesses.

The CMA also has the power to impose structural measures to address unilateral market power following a market investigation:

  1. In 2014, following its Private Healthcare market investigation, the CMA decided that HCA International Limited should divest private hospitals in central London (although that decision was subsequently quashed by the CAT and remitted for reinvestigation by the CMA, and the CMA decided at the conclusion of its remitted investigation in September 2016 that ordering a divestiture would be disproportionate).
  2. In 2014, following a market investigation into aggregates, cement and ready mix concrete, the CC found that Hanson had exclusive rights to produce ground granulated blast-furnace slag (an input into cement) in Great Britain and forced it to divest one of its facilities to create competition.
  3. In 2010, the CC required BAA plc (the owner of the largest UK airports) to
    divest two London airports and one Scottish airport to improve competition in the relevant markets.

VI PROCEDURE

The UK enforcement procedure is similar in many respects to the procedure that applies at EU level (under Regulation 1/2003). The CMA (or concurrent regulator) investigates a suspected infringement and reaches an administrative decision in the first instance. That decision is then subject to appeal. The stages of a CMA investigation are as follows:

  1. Investigations are usually triggered by complaints. However, this is not always the case, and the CMA is able to investigate on its own initiative. The OFT’s Gaviscon investigation, for example, began after evidence was submitted by a whistle-blower.
  2. Before opening a formal investigation, the CMA must be satisfied that it has ‘reasonable suspicion’ of an infringement. The CMA has no power to use formal investigation powers unless this legal threshold is met. For this reason, it typically carries out ‘informal’ information-gathering in the first instance (including seeking further information from complainants).
  3. As well as satisfying the legal threshold, the CMA must decide whether a case is an administrative priority, in accordance with its published Prioritisation Principles. The Prioritisation Principles are intended to ensure the CMA makes efficient use of its resources when deciding which cases to pursue. The High Court has upheld the CMA’s right to prioritise its cases in this way, and to close investigations on administrative grounds, even after considerable investigation has been carried out.
  4. Once it has opened an investigation, the CMA will publish a short notice on its website indicating in broad terms the relevant sector and conduct under investigation. It does not usually name the parties to its investigations before a statement of objections is issued. However, in exceptional circumstances, the CMA can decide to publish the names of the parties in its initial public notice. Exceptional circumstances include instances where a party’s involvement is already in the public domain, or where the CMA considers that the potential harm to consumers or other businesses from non-disclosure is sufficient to justify disclosure.
  5. Provided the legal threshold for opening a case is met, the CMA has wide powers to require the production of information. It may require the production of specified documents or information, ask individuals oral questions or carry out interviews with individuals. Individuals are required to answer the CMA’s questions, subject to their privilege against self-incrimination, and failure to do so can result in civil sanctions. The CMA may also carry out unannounced visits to business or domestic premises (i.e., ‘dawn raids’). It may enter premises without a warrant, or it may enter and search premises with a warrant (which it can obtain from the Competition Appeal Tribunal or the High Court).
  6. If the CMA is minded to reach an infringement decision against an undertaking, it must issue a statement of objections, setting out its case and the evidence it intends to rely on. The decision of whether to issue a statement of objections must be taken by the case team’s senior responsible officer. The CMA must also allow access to its case file when it issues a statement of objections. The CMA’s file must contain all material relevant to the matters in the statement of objections (subject to certain redactions). Any party receiving a statement of objections has the right to submit written representations and to attend an oral hearing. The same process applies in relation to any proposed fine (i.e., the CMA will provide details of its proposed fine, and allow the opportunity for written representations and an oral hearing).
  7. The CMA will consider entering into settlement discussions in any case where it considers that the evidential standard for giving notice of its proposed infringement decision is met. ‘Settlement’ is the process whereby a business under investigation is prepared to admit that it has breached competition law and confirms that it accepts that a streamlined administrative procedure will govern the remainder of the CMA’s investigation of that business’s conduct. If so, the CMA will impose a reduced penalty on the business. Settlement discussions can be initiated either before or after the statement of objections is issued. The CMA retains broad discretion in determining which cases to settle, and this includes the discretion whether to explore interest in settlement discussions, whether to continue or withdraw from settlement discussions and whether to settle at all. Businesses do not have a right or an obligation to settle in a given case and may withdraw from settlement discussions at any time.
  8. Parties can offer commitments at any stage of an investigation, although the CMA encourages parties considering commitments to offer them before a statement of objections is issued. The commitments process is similar to the EU process under Article 9 of Regulation 1/2003. There is no obligation on parties to offer commitments. However, if accepted, the commitments become binding and are enforceable through the courts.
  9. Following parties’ written and oral representations, the CMA must decide whether to issue an infringement decision. This decision is taken on a collective basis by a three-member case decision group (CDG), which may include any senior CMA staff or board member or any member of the CMA panel. To ensure that the final decision is taken by officials who were not involved in the decision to issue the statement of objections, the senior responsible officer may not be a member of the CDG. The CMA may equally decide at this stage to issue a reasoned decision that it has no evidence of an infringement. Final decisions are published (in redacted form) on the CMA’s website.
  10. CMA infringement decisions are subject to appeal to the CAT, and subsequently to the civil appeal courts on points of law.

CMA investigations vary significantly in duration, and no statutory deadlines apply. Very broadly, a CMA investigation is likely to take around three years (from case-opening until decision), with the statement of objections being issued roughly halfway through that period.

During an investigation, disputes over procedural matters (such as deadlines for responding to information requests, or confidentiality redactions) that cannot be resolved with the case team itself may be referred to the CMA’s Procedural Officer. The Procedural Officer will review the party’s written application and relevant correspondence, and allow an opportunity for each side to present its views orally (which may be by telephone). The Procedural Officer will then issue a short reasoned decision (within a target deadline of 10 working days) that is binding on the CMA. CMA procedural decisions are ultimately subject to judicial review by the civil courts.

As explained above, the CMA has the power to impose interim measures to prevent significant damage or to protect the public interest. If the CMA is minded to impose interim measures, it must first give notice to the party in question and allow it the opportunity to make representations. Interim measures decisions are subject to appeal to the CAT.

The Consumer Rights Act 2015 also gives the CMA the power to certify voluntary compensation schemes following an infringement decision, intended to encourage firms to offer compensation without the need for victims to commence private litigation.

Outside an investigation, the CMA has the power to publish opinions on novel issues of competition law where it considers there is sufficient need for general guidance (e.g., because of their economic importance for consumers). The CMA has never published an opinion in relation to a question of abuse of dominance. The CMA is sometimes prepared to offer private, informal advice on an ad hoc basis, but only in exceptional cases and only where the matter in question would satisfy its case Prioritisation Principles. By contrast, the CMA does encourage potential complainants to approach it with possible complaints for discussion on an informal and confidential basis.

VII PRIVATE ENFORCEMENT

Two types of private action exist in the United Kingdom: follow-on actions and stand-alone actions.

A follow-on action is a damages action founded on an infringement decision by a UK competition authority or the European Commission. The court is bound by the findings of infringement already made (as well as findings of fact in the infringement decision). The claimant is therefore required only to show loss and causation. In a stand-alone action, the claimant must prove that the defendant infringed the competition law, as well as proving that the claimant suffered reasonably foreseeable loss. Since October 2015, stand-alone actions and follow-on actions can be brought before the CAT as well as the civil courts (the High Court of England and Wales, the High Court of Northern Ireland, or the Court of Session or Sheriff Court in Scotland). The civil courts and the CAT have wide jurisdiction to award damages and equitable remedies, including injunctive relief, specific performance and declarations of illegality.

In the past, private claims tended to gravitate towards the civil courts, and particularly the High Court of England and Wales, for a variety of reasons. The Consumer Rights Act 2015 aims to reverse this trend. Not only does the CAT now have the power to hear stand-alone actions and grant injunctive relief, it is also the only venue in which claimants can bring opt-out and opt-in collective actions (discussed below). Further, some cases before the CAT will qualify for fast-track review, capping the costs risk for claimants. The civil courts also have the power to transfer competition cases to the CAT. The CAT’s procedural rules and limitation periods are now generally aligned with those that apply to the civil courts, although some questions remain over how the new rules apply to claims relating to conduct pre-dating October 2015. Taken together, these changes are intended to make the CAT the principal venue for competition cases in the United Kingdom.

There are four forms of collective action in the United Kingdom.

  1. Collective actions before the CAT: since October 2015, any representative of a class of persons may bring a collective action for damages before the CAT on an opt-out basis or an opt-in basis. In either case, the claimant must obtain permission from the CAT (a ‘collective proceedings order’) to continue with a claim on this basis by showing that they are a suitable representative and that the claims in question are sufficiently similar to be brought in collective proceedings.
  2. Consumer actions by specified bodies: specified bodies can bring follow-on damages actions before the CAT on behalf of consumers, on an opt-in basis. A specified body is a consumer organisation specified by the Secretary of State by statutory order. To date, only the Consumers’ Association (also known as Which?) has been designated a specified body. Which? has brought only one action under these provisions (concerning replica football kits, which was ultimately settled), and has publicly stated that it will not bring any further actions of this type.
  3. Group litigation orders: the High Court has the power to make a group litigation order combining claims that raise common or related issues. A group litigation order will also provide for the establishment of a group register of the claims forming the group. Judgments are binding on all parties on the group register.
  4. Representative actions: it is, in theory, possible for a claimant to bring an action in the High Court on behalf of all claimants with the same interest. However, following a 2010 Court of Appeal judgment, it seems highly unlikely that mass representative actions can be brought in competition cases under these provisions, and far more likely that representative claimants will seek to launch collective proceedings before the CAT.

Damages in competition claims are intended to be compensatory: they are intended to place the victim in the position he or she would have been in had the infringement not occurred. In exceptional circumstances, where compensatory damages would otherwise be an inadequate remedy, damages might be awarded on a restitutionary basis (i.e., an account of the profits earned unjustly by the defendant). While the Court of Appeal has accepted in principle that restitutionary damages may apply, they have never been awarded in practice.

As noted above, exemplary damages are no longer permitted in competition litigation, following the enactment of Regulations implementing the EU Damages Directive in the UK. This reverses the principle established in the Cardiff Bus case that exemplary damages were possible in dominance cases where no administrative fine had been imposed.

More generally, the UK has become a popular venue for private actions even where the claimant has a choice of jurisdiction. There are two principal reasons for this. First, the UK rules on disclosure of evidence are favourable to claimants (allowing access to evidence that might not be available in other jurisdictions). Secondly, costs are generally awarded on ‘loser-pays’ basis. A successful claimant is therefore likely to recover a significant proportion of his or her costs from the defendant.

Public funding is generally unavailable for competition law actions. However, other funding options are available. In particular, parties may enter conditional fee agreements (CFAs) with lawyers. Under a CFA, the lawyer will be paid nothing if the case is lost but will be entitled to a success fee (i.e., an uplift) of up to 100 per cent for winning the case. Competition actions in the United Kingdom may also be funded through ‘after-the-event’ insurance or by professional funders. However, in most cases, any uplift or after-the-event insurance premium will not be recoverable from an unsuccessful defendant. Since April 2013, claimants have also been able to instruct lawyers in High Court actions under a damages-based agreement (DBA). Under a DBA, a lawyer is entitled to a percentage of the damages awarded to a successful claimant, but receives nothing if the claim is unsuccessful. DBAs are not permitted in opt-out collective proceedings before the CAT.

VIII FUTURE DEVELOPMENTS

The public enforcement and private litigation regimes in the United Kingdom have undergone considerable reform in recent years. While these reforms are significant from an institutional and procedural perspective, the substantive rules on dominance are unchanged. The reforms were intended to result in more competition law enforcement cases, especially in the regulated sectors, together with greater use of market investigations to tackle concerns about unilateral conduct and an increase in private litigation. The expected boost to public enforcement and private litigation (and collective actions in particular) has been slow to materialise, although CMA enforcement activity increased significantly following criticism by the National Audit Office in February 2016. There is reason to believe this growth in public enforcement will continue to gain momentum.

In April 2018, the government launched a consultation on whether the CMA needs greater enforcement powers to tackle what it describes as ‘dominant digital platforms’, and recent CMA public statements suggest that it will start to focus more of its enforcement activities on digital markets.

In the longer term, the most significant future development in UK antitrust enforcement will be the withdrawal of the UK from the EU. On 29 March 2017, the government notified its intention to withdraw from the EU under Article 50 of the Treaty on European Union, commencing a two-year countdown (subject to extension only if all Member States agree).

On 28 February 2018, the European Commission published its draft Withdrawal Agreement between the EU and the UK. The draft Withdrawal Agreement sets out the proposed arrangements for the UK’s withdrawal from the EU, including during the transition period (i.e., between the date of entry into force of the agreement and 31 December 2020). The draft Withdrawal Agreement envisages that EU institutions should continue to have the power to initiate administrative procedures under EU law until the end of the transition period. It also provides that the European Commission can open new antitrust investigations after the end of the transition period, provided the underlying conduct occurred before the end of that period. There are inconsistencies between these provisions and the UK’s EU Withdrawal Bill, which envisages that European Commission decisions taken post-Brexit will not be binding on the UK. The draft Withdrawal Agreement is, however, subject to negotiation between the EU and the UK, and a final version is not expected to be agreed before October 2018.

Although the terms of the UK’s post-Brexit relationship with the EU have yet to be determined, likely implications for competition enforcement include the following:

  1. EU competition law would no longer be directly applicable in the UK, although it would still apply to UK companies active in the EU;
  2. European Commission infringement decisions would no longer extend to the UK;
  3. a European Commission investigation would no longer preclude the CMA from investigating the same conduct;
  4. the CMA, sectoral regulators, the CAT and UK civil courts may have greater freedom to interpret UK competition law differently from equivalent EU competition law;
  5. the European Commission may no longer have the power to conduct dawn raids in the UK; and
  6. European Commission infringement decisions adopted post-Brexit would not necessarily be binding on the CAT and UK civil courts, including in follow-on damages claims.

The CMA leadership spent much of 2017 preparing for Brexit, and positioning the UK’s withdrawal from the EU as an opportunity to step out of the Commission’s shadow and establish the CMA as a leading global agency. The CMA’s ability to achieve that ambition will depend in part on the provision of increased resources. The number of significant Competition Act investigations might increase, as the CMA will no longer be precluded from investigating cases pursued by the European Commission. The CMA’s ability to exploit this opportunity could, however, be circumscribed if its resources become consumed by an increased merger workload. The CMA’s resources have started to expand to meet the demands of its post-Brexit responsibilities. After obtaining a modest funding increase in the 2017 Autumn Budget, the CMA has begun recruiting, and announced on 31 January 2018 that it plans to enlarge its current team in Scotland from three employees to between 25 to 30 employees, ‘with ambitions to grow further’. The government announced a further increase in the CMA’s annual budget of up to £23.6 million from April 2018.

In addition to petitioning for the necessary resources, the CMA will need to work with the government to resolve complex issues, including:

  1. Will the Commission continue to have exclusive jurisdiction over those antitrust proceedings that it initiated prior to the UK leaving the EU?
  2. Will the Commission continue to have exclusive jurisdiction over proceedings initiated post-Brexit in respect of conduct that occurred pre-Brexit? and
  3. Which authority, post-Brexit, will enforce antitrust commitments accepted by the Commission pre-Brexit, insofar as they concern the UK?

Any post-Brexit changes to UK competition enforcement will present both challenges and opportunities – for business, for the CMA and sectoral regulators, and for the legal profession. There will inevitably have to be detailed amendments to UK statutes, secondary legislation and guidance, and the UK competition authorities may have to adjust their prioritisation and investigation priorities to meet increased demands on their resources. However this unfolds, it is unlikely that the substantive provisions of the Competition Act 1998 will change materially in the short term.

1 Paul Gilbert is counsel and John Messent is an associate at Cleary Gottlieb Steen & Hamilton LLP. They are grateful for the assistance of their colleague, Philip Herbst.

2 See Section VIII on the implications of the UK’s withdrawal from the EU.

3 Section 60 of the Act.

4 The CMA was created on 1 October 2013, and acquired its powers and responsibilities on 1 April 2014. It replaced two former public authorities: the Office of Fair Trading (OFT) and the Competition Commission (CC). The OFT had powers to enforce the prohibitions in Articles 101 and 102 of the TFEU and the equivalent UK prohibitions, as well as to carry out Phase I merger reviews and market studies. The CC was a reference body carrying out Phase II merger reviews, market investigations and certain regulatory appeals. Where relevant, this chapter refers to the former OFT and CC.

5 Section 46 of the Act.

6 2009/C 45/02.

7 The investigation procedures followed by the sectoral regulators differ in some respects from the CMA’s procedures.

8 The fourth Annual Report was published on 30 April 2018. The CMA also published a ‘Baseline Report’ on concurrency on 1 April 2014.

9 ‘UK competition enforcement – where next?’, 29 November 2017, available at https://www.gov.uk/government/speeches/uk-competition-enforcement-where-next.