The Cartels and Leniency Review: United Kingdom

Enforcement policies and guidance

The two principal pieces of national legislation regarding cartel activity in the United Kingdom are the Competition Act 1998 and the Enterprise Act 2002 (both as amended).

The Competition Act prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices that may affect trade within the United Kingdom and have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom. This prohibition (known as the Chapter I prohibition) is modelled on Article 101 of the Treaty on the Functioning of the European Union (TFEU).

Under the Enterprise Act, it is a criminal offence for an individual to agree with one or more other persons to make or implement, or to cause to be made or implemented, arrangements relating to at least two undertakings involving the following prohibited cartel activities: price-fixing, market sharing, limitation of production or supply, and bid rigging.

The principal enforcement agency in the United Kingdom is the Competition and Markets Authority (CMA). The sectoral regulators for communications, electricity and gas, water and sewerage, civil aviation, health, railway services and financial services have concurrent competition powers. The sectoral regulators are required to consider whether the use of these powers would be more appropriate than their sector-specific powers to promote competition. Nonetheless, the CMA is the single first port of call for all leniency applications in the United Kingdom, including those in the regulated sectors.

The CMA's guidelines state that cartel activities 'are among the most serious infringements of competition law';2 however, the CMA is prepared to offer lenient treatment to businesses and individuals that come forward with information about a cartel in which they are involved. The framework principles for the leniency policy are set out in the publications 'Applications for leniency and no-action in cartel cases' and 'Guidance as to the appropriate amount of a penalty'. The CMA has also published guidance on competition disqualification orders and prosecution guidance in respect of the cartel offence.3

As a member of the European Union, the United Kingdom was also required under Regulation (EC) No. 1/20034 to apply and enforce Article 101 of the TFEU in relation to cartel conduct that may affect trade between Member States; however, following the result of the 2016 (Brexit) referendum on membership of the European Union, the United Kingdom left the supranational block on 31 January 2020.

The Withdrawal Agreement entered into between the United Kingdom and the European Union provided for a transition period until 31 December 2020, during which there was no change to the status quo as far as cartel regulation was concerned. Although Regulation (EC) No. 1/2003 ceased to apply in the United Kingdom at the end of the transition period,5 the European Commission continues to be competent for competition cases in the United Kingdom that it had initiated before 31 December 2020 (referred to as continued competence cases).6

Cooperation with other jurisdictions

The CMA is party to a Multilateral Mutual Assistance and Cooperation Framework with the competition authorities in the United States, Australia, Canada and New Zealand, which is intended to improve cooperation on investigations.

The CMA's guidance on leniency and cartels states that information supplied as part of an application for leniency will not be passed on to an overseas agency without the consent of the provider. If leniency has been applied for in other jurisdictions, the CMA generally expects the leniency applicant to provide a waiver of confidentiality to allow the CMA to discuss matters with those other jurisdictions. Normally, any transfer of information in these circumstances is limited to what is necessary to coordinate planned concerted action, such as on-site investigations.

Where the United Kingdom has extradition relations with another territory, individuals may be extradited for prosecution for participation in a cartel.

Jurisdictional limitations, affirmative defences and exemptions

i Extraterritoriality

The Chapter I prohibition can apply to agreements between undertakings located outside the United Kingdom if they may affect competition within the country. The Chapter I prohibition applies wherever the agreement, decision or practice is, or is intended to be, implemented in the United Kingdom. Similarly, the criminal offence under the Enterprise Act will apply to an agreement outside the United Kingdom if it is, or is intended to be, implemented in whole or in part in the United Kingdom.

ii Parent company liability

To date, the UK competition authorities and courts have followed the principles established by the Court of Justice of the European Union (CJEU) on the issue of parent company liability (see the European Union chapter for further details). Accordingly, the conduct of a subsidiary (and, in certain circumstances, a minority interest holding) may be imputed to a parent company where, having regard to the economic, organisational and legal links between those two entities, the subsidiary does not decide independently upon its own conduct on the market but carries out in all material respects the instructions given to it by the parent company. Where a parent company has a 100 per cent shareholding in a subsidiary, there is a rebuttable presumption that the parent company exercises a decisive influence over its subsidiary and, therefore, the two entities form a single undertaking.

Shareholdings below 100 per cent may also give rise to a position of a single undertaking, depending on the level of the shareholding and the nature of the links between the companies.7

iii Affirmative defences and exemptions

Although exemptions are available for conduct that falls within the Chapter I prohibition, it is highly unlikely that a hardcore cartel agreement could qualify for such an exemption.

The Competition Act does, however, exclude certain agreements from the scope of the Chapter I prohibition relating to the production of, or trade in, agricultural products. Certain types of public transport ticketing schemes are also exempt. The Secretary of State may exclude further categories of agreement if satisfied that there are exceptional and compelling public policy reasons for exclusion. For example, certain aspects of the competition rules were suspended in 2021 in response to shortages in the supply of fuel and CO2.

Leniency programmes

The CMA is the first port of call for all applications, including those in the regulated sectors.8 The CMA's leniency programme9 provides different types of protection to an applicant depending on its order in the queue and whether an investigation has already commenced:

  1. Type A immunity – available where the undertaking is the first to apply and there is no pre-existing civil or criminal investigation (or both) into the activity. Type A immunity provides automatic immunity from civil fines for an undertaking, and criminal immunity for all current and former employees and directors who cooperate with the CMA.10 Cooperating individuals should also avoid disqualification as a director.
  2. Type B immunity – available where the undertaking is the first to apply but there is already a pre-existing civil or criminal investigation (or both) into the activity. In these circumstances, the CMA retains discretion as to whether to provide civil immunity to the undertaking (anything up to 100 per cent), and criminal immunity to current and former employees and directors who cooperate with the CMA. Cooperating individuals should also avoid disqualification as a director. Type B immunity will no longer be available when the CMA has sufficient information to establish an infringement, where another undertaking has been granted Type B immunity or when the CMA already has, or is in the course of gathering, sufficient information to bring a successful criminal prosecution. The applicant must, therefore, provide evidence that adds significant value to the CMA's investigation.
  3. Type B leniency – where the CMA decides not to grant Type B immunity to an undertaking, it may still provide a reduction from any financial penalty imposed under the Competition Act. There is no limit to the level of reduction that may be granted under Type B leniency, though a recent addendum to the leniency programme has stated that the CMA would not generally expect to grant immunity or discounts on any financial penalty of more than 50 per cent to Type B applicants in cases of resale price maintenance.11 The CMA will consider whether it is in the public interest to grant immunity on a blanket or individual basis. Cooperating individuals should also avoid disqualification as a director.
  4. Type C leniency – available to undertakings that are not the first to apply but provide evidence of cartel activity before a statement of objections is issued (provided the evidence genuinely advances the investigation). Recipients of Type C leniency may be granted a reduction of up to 50 per cent of the level of a financial penalty imposed under the Competition Act. The CMA may exercise its discretion to award immunity from criminal prosecution for specific individuals. Cooperating individuals should also avoid disqualification as a director.

In addition to fulfilling the above criteria, an undertaking must fulfil the following conditions to be granted Type A or Type B immunity or leniency:

  1. accept that it participated in cartel activity in breach of the law;
  2. provide the CMA with all information, documents and evidence available to it regarding the cartel activity;12
  3. maintain continuous and complete cooperation throughout the investigation and until the conclusion of any action by the CMA arising as a result of the investigation;
  4. refrain from further participation in the cartel activity from the time of disclosure of the cartel activity to the CMA (except as may be directed by the CMA); and
  5. not have taken steps to coerce another undertaking to take part in the cartel activity.

To be granted Type C leniency, an undertaking must also fulfil each of the above conditions, except condition (e), which does not apply.

i Markers

An initial approach to the CMA may be made by an undertaking's legal advisers on a hypothetical 'no names' basis to secure a preliminary marker protecting the applicant's place in the queue. To do so, the adviser must have instructions to apply for Type A immunity if the CMA confirms that it is available. Before contacting the CMA, the adviser must, therefore, ensure that there is a 'concrete basis' for a suspicion of cartel activity and be able to confirm that the undertaking has a 'genuine intention to confess' – that is, acceptance that the available information suggests that it has been engaged in cartel conduct in breach of the Chapter I prohibition.

To confirm the availability of a preliminary marker, the CMA must be provided with sufficient details to allow it to determine whether there is a pre-existing civil or criminal investigation or a pre-existing applicant. If the CMA confirms that Type A immunity is available, the adviser must identify the undertaking and apply for immunity by providing an application package with details of the suspected infringement and the evidence uncovered at that stage. A discussion of the timing and process for confirming the marker would then follow.

A similar approach may be made to obtain a preliminary marker for Type B immunity – although in Type B cases it is possible to ask the CMA whether immunity is available without a requirement to make an immediate application if the CMA confirms that it is available.

An applicant may also apply for a preliminary marker in respect of Type B and Type C leniency. To confirm the marker, the applicant must provide in the application package all relevant information available to it in relation to the cartel, and that information must, as a minimum, add significant value to the CMA's investigation.

ii Duties of cooperation

A senior representative of the applicant will be asked to sign a letter indicating that the applicant understands the conditions for the grant of leniency, and in particular that it is committed to continuous and complete cooperation throughout the CMA's investigation and subsequent enforcement action. The CMA notes in its guidance that the requirement to maintain continuous and complete cooperation implies that the overall approach to the leniency process must be a constructive one designed genuinely to assist the CMA in efficiently and effectively detecting, investigating and taking enforcement action against cartel conduct.13 If, at any time, the CMA has concerns that the applicant is not adopting such a constructive approach, or that there are unreasonable delays in providing information or otherwise cooperating with CMA requirements, the matter will be raised with the applicant by the case team.

iii Access of private litigants to leniency materials

In March 2017, the United Kingdom implemented the provisions of the EU's Directive on rules governing actions for damages under national law for breach of the EU antitrust rules and those of Member States (the Damages Directive – see the European Union chapter and Section VII for further details). As these provisions were implemented into UK law,14 they will continue to apply post-Brexit unless subsequently amended or repealed.15

The provisions include a number of safeguards in relation to leniency programmes. These ensure that leniency corporate statements and settlement submissions (except those that have been withdrawn) have absolute protection from disclosure or use as evidence, and that documents specifically prepared in the context of the public enforcement proceedings by the parties (e.g., replies to authorities' requests for information) or the competition authorities (e.g., a statement of objections) have temporary protection (i.e., for the duration of the relevant competition authority's investigation).

iv Representation by counsel of the corporate entity and its employees

In the absence of a conflict of interest, there is no absolute legal restriction preventing a law firm from representing both employees and the undertaking under investigation, provided that this is compatible with the law firm's own professional conduct obligations. In practice, however, it is possible that the undertaking may wish to distance itself from the conduct of individual employees and to argue that the employee was acting without authority. In addition, separate representation is likely to be appropriate if individual employees face possible criminal prosecution under the Enterprise Act, given the real possibility of conflicts of interest between the corporate entity and the employee.

Penalties

The principal sanction that may be imposed for a breach of the Chapter I prohibition (or Article 101 of the TFEU) is a civil fine of up to 10 per cent of the infringing undertaking's worldwide turnover in its previous business year.16

The UK competition authorities have imposed severe financial penalties in respect of cartel activities, including:

  1. in July 2021, the CMA imposed fines totalling £260 million for competition law breaches against a number of companies in relation to the supply of hydrocortisone tablets, including excessive pricing and market sharing arrangements.
  2. in April 2012, the Office of Fair Trading (OFT) imposed a fine of £58.5 million on British Airways for its role in an alleged fuel surcharge price-fixing agreement with Virgin Atlantic;
  3. in August 2011, the OFT announced total fines of £49.51 million in respect of its finding that four supermarkets and five dairy processors had been involved in a number of infringements covering the dairy market; and
  4. in October 2019, the CMA imposed total fines of £36.9 million on three suppliers of pre-cast concrete drainage products.

i Factors taken into account when setting the penalty

A financial penalty imposed by the CMA under the Competition Act will be calculated following a six-step approach:

  1. Starting point: the starting point is calculated with regard to the seriousness of the infringement and the relevant turnover of the undertaking. The relevant turnover is that of the undertaking in the relevant product and geographical markets affected by the infringement in the most recent financial year before the infringement ended.17 The starting point will not exceed 30 per cent of the relevant turnover. The CMA will in general use a starting point of between 21 and 30 per cent for cartel activities.
  2. Adjustment for duration: the starting point may then be multiplied by a figure up to a maximum of the number of years the infringement lasted. Part years may be treated as full years for these purposes. Any duration of less than a year will normally be treated as a full year although, exceptionally, the starting point may be decreased where the duration is less than a year.
  3. Adjustment for aggravating and mitigating factors.
  4. Adjustment for specific deterrence: the penalty may be increased to ensure that the infringing undertaking will be deterred from breaching competition law again, having regard to its size and financial position, and any other relevant circumstances. The penalty figure may also be increased to take account of any gain made by the undertaking from the infringement.
  5. Adjustment to check the penalty is proportionate and prevent the maximum penalty being exceeded.
  6. Adjustment for leniency or settlement discounts, or approval of a voluntary redress scheme, or both.18

In exceptional circumstances, the CMA may reduce a penalty if the undertaking is unable to pay because of its financial position; however, the guidance emphasises that these financial hardship adjustments will be exceptional, and there can be no expectation that a penalty will be adjusted on this basis.19

ii Sanctions applying to individuals

If convicted in a magistrates' court, any individual found guilty of committing a criminal cartel offence under the Enterprise Act may be imprisoned for up to six months and receive a fine of up to £5,000 for offences committed before 12 March 2015 and an unlimited fine for offences committed on or after 12 March 2015. If convicted in the Crown Court, an individual may be imprisoned for up to five years and receive an unlimited fine. In addition, an application may be made for the disqualification of a company director in certain circumstances.

The only elements of intent that the prosecution has to prove are the intention to enter into an agreement and the intention regarding the agreement's effect; however, several exemptions are set out in the legislation that provide that an individual will not commit the offence where:

  1. customers are provided with certain relevant information before the arrangements are made;
  2. a person requesting bids is provided with the relevant information before the bid is made;
  3. the relevant information is publicised in the manner specified by the Secretary of State; or
  4. the agreement is made to comply with a legal requirement.

In addition, a defence may apply where:

  1. there is no intention to conceal the nature of the arrangements from customers;
  2. there is no intention to conceal the nature of the arrangements from the CMA; or
  3. the defendant took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or their implementation.

The CMA has published prosecution guidance in an attempt to bring further transparency to the exercise of its prosecutorial discretion.20

iii Early resolutions and settlement procedures

The CMA's formal settlement procedure includes the following key features:

  1. a penalty may be reduced where an undertaking is prepared to admit that it has breached competition law and accepts that a streamlined administrative procedure will govern the remainder of the investigation;
  2. the CMA will retain broad discretion in determining which cases to settle. Businesses will not have a right to settle in a given case but are also not under any obligation to settle or enter into any settlement discussions where these are offered by the CMA. Settlement discussions can be initiated either before or after the statement of objections is issued;
  3. at a minimum, the CMA will require a settling undertaking to make a clear and unequivocal admission of liability in relation to the nature, scope and duration of the infringement, cease the infringing behaviour and confirm that it will pay a penalty set at a maximum amount;
  4. the streamlined administrative procedure will normally include streamlined access to file arrangements, no written representations on the statement of objections (except in relation to manifest factual inaccuracies), no oral hearings and no separate draft penalty statement after settlement has been reached, and no case decision group will be appointed;
  5. settlement discounts will be capped at a level of 20 per cent. The actual discount awarded will take account of the resource savings achieved in settling a particular case at that particular stage in the investigation. The discount available for settlement before the statement of objections is issued will be up to 20 per cent, and the discount available for settlement after the statement of objections is issued will be up to 10 per cent;
  6. the leniency policy and the use of settlements are not mutually exclusive – it is possible for a leniency applicant to settle a case and benefit from both leniency and settlement discounts; and
  7. the decision will remain final and binding as against a settling undertaking, even if another addressee of the infringement decision successfully appeals against the decision. The settling undertaking will not be able to challenge or appeal against the infringement decision to the Competition Appeal Tribunal (CAT).21

The formal settlement procedure has been available since 1 April 2014 for all new and ongoing Competition Act cases, and it has been used regularly since, including in the recent cases of Roofing Materials (2020), Fludrocortisone Acetate (2020) and Privately Funded Ophthalmology Services (2020).

'Day one' response

CMA officials may carry out announced or unannounced inspections anywhere in the United Kingdom to investigate possible cartel activities. If the CMA has obtained a warrant, officials may enter and search both business and domestic premises, and may:

  1. examine books and other business records;
  2. take copies or originals of books and records (including from electronic devices);
  3. require on-the-spot oral explanations of documents; and
  4. seal any business premises and books or records for the time necessary for the investigation.22

It is a criminal offence to obstruct an inspection by the CMA, to provide false or misleading information or to destroy, falsify or conceal evidence. It is a civil offence not to comply with a formal information request without a lawful excuse, and the CMA may impose fines for failure to provide documents or answer questions. It is, therefore, essential to develop a coordinated strategy for dealing with an inspection, which should cover issues such as:

  1. arranging for each official to be assisted or shadowed by a member of staff or lawyer;
  2. briefing relevant employees that they should not obstruct the investigation (e.g., by destroying or deleting records) while also noting that anything they say to the officials may be recorded as evidence;
  3. arranging for the provision of appropriate IT support to secure data, provide access to equipment and allow the officials to conduct their investigation;
  4. establishing a process for identifying documents that may be covered by legal privilege before officials are allowed to see or copy them;
  5. maintaining a record of what officials ask for and inspect, and keeping copies of documents copied by the officials; and
  6. ensuring that the fact that the inspection is taking place is not leaked outside the company.

In addition to carrying out inspections, the CMA may issue information requests under the Competition Act as a means of obtaining information from undertakings. It has powers to require any individual who has a connection with a business under investigation to answer questions on any matter relevant to the investigation and may require the individual to provide information that may be relevant to the investigation. The CMA also has the power to fine any person who fails, without reasonable excuse, to comply with a formal notice to answer the CMA's questions.

In light of the significant penalties that may be imposed for a breach of the Chapter I prohibition, a tailored strategy should be developed to deal with the fallout from an unannounced inspection or receipt of an information request covering alleged cartel activities. Active consideration should be given to whether it is appropriate to be making applications for leniency. The strategy should be developed with senior management and the legal department in view of the surrounding facts and the different issues and risks raised in all potentially relevant jurisdictions. Delay in the implementation of a strategy could have serious consequences (e.g., in terms of priority of leniency applications), as could the implementation of a policy that does not take due account of identifiable risks (e.g., in terms of potential civil actions and follow-on investigations in other jurisdictions).

Private enforcement

i Private actions

Private actions brought before the English courts claiming damages or other relief for breaches of competition law are generally framed as tortious actions for breach of statutory duty.

A claimant may bring a competition claim before either the High Court or the CAT. The High Court has jurisdiction over England and Wales; the jurisdiction of the CAT extends to the whole of the United Kingdom.

The High Court can order a transfer to the CAT in certain circumstances, so claimants do not always have complete control over which route is taken. The CMA has published guidance for consumers and businesses on obtaining redress for competition law breaches.23

ii Interplay between government investigations and private litigation

Where there exists a prior finding by a UK competition authority of an infringement, and where the redress sought is limited to a claim for damages, a claimant may bring an action for damages as a follow-on claim. In such a follow-on action, the claimant can rely on the decision to establish that the defendant has infringed the relevant competition law and thus only needs to prove causation and loss.

Claims can be brought on a similar basis in respect of infringement decisions by the European Commission reached before 31 December 2020, as well as decisions by the European Commission in respect of continued competence cases (as defined under Article 92 of the Withdrawal Agreement).24

iii Damages

Compensatory damages are available in the United Kingdom for breaches of competition law, and those damages are calculated by reference to what is necessary to restore the victim to the position he or she would have been in had the infringement not occurred. A defence or a reduction in the damages otherwise payable is available where the defendant can show that the claimant has avoided or mitigated its loss by passing on the loss (e.g., in a chain of purchasers in which prices have been increased down the chain).

In March 2017, the Competition Act was amended to reflect the Damages Directive's provisions.25 Its major substantive provisions include:

  1. introducing a rebuttable presumption that cartels cause harm;
  2. clarifying that the burden of proving that an overcharge has been passed on rests with the defendant;
  3. prohibiting the award of exemplary damages;26
  4. stating what an indirect purchaser must show to establish a claim for damages;
  5. implementing the Damages Directive's requirements in relation to the effect of consensual settlements on a competition claim and any contribution claims; and
  6. creating a specific limitation period regime of six years beginning from the later of the day on which the infringement that is the subject of the claim ceases or the day on which the claimant first knows (or could reasonably be expected to know) of the infringement.

In addition, certain key procedural changes were made, including:

  1. implementing the Damages Directive's requirements concerning disclosure (see Section IV.iii for further details);
  2. the assessment of contributions between those jointly liable for an infringement; and
  3. allowing final infringement decisions of EU Member States' competition authorities or courts to be presented as prima facie evidence of an infringement.

The substantive provisions apply only to claims in respect of loss suffered as a result of an infringement that commenced on or after 9 March 2017; the procedural provisions apply to all proceedings brought on or after 9 March 2017, regardless of when the infringing conduct occurred. As the provisions of the Damages Directive were implemented into UK law, they will continue to apply post-Brexit unless subsequently amended or repealed.27

iv Indirect purchasers

Damages for breach of competition law are available not just to direct purchasers of cartelised goods or services but also to indirect purchasers (i.e., those further down the distribution chain). Indirect purchasers may bring a claim provided they can prove that the defendant infringed competition law resulting in an overcharge to its direct purchasers and that the claimant purchased cartelised goods or services.

v Collective actions

In October 2015, the Competition Act and the Enterprise Act were amended by virtue of the Consumer Rights Act with a view to facilitating actions for damages under a more liberal collective actions regime. Any person authorised by the CAT may act as the representative of the claimants. The regime applies to both follow-on and stand-alone cases, and is available to both consumer and business complainants. The CAT may allow opt-out and opt-in collective proceedings. The opt-out aspect of a claim applies only to UK-domiciled claimants, but non-UK claimants are able to opt in to a claim if desired.

The regime establishes a range of safeguards to protect against frivolous or unmeritorious cases being brought. In particular, the CAT is prohibited from awarding exemplary damages; and the use of damages-based agreements are prohibited in opt-out collective actions.

The CAT, in its gatekeeper role, will only authorise a representative to bring a claim if it considers that it is just and reasonable for it to do so. It will also only allow collective actions where it considers that claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings. These measures, along with a strong process of judicial certification and the maintenance of the loser-pays rule, are designed to guard against a US-style culture of class actions.

Several applications to commence collective actions have been made under the regime. The first application was adjourned and subsequently withdrawn by the applicant.28

The second, concerning follow-on actions arising from the European Commission's decision regarding interchange fees charged by MasterCard, was rejected by the CAT; however, the CAT's decision was set aside by the Court of Appeal29 and then appealed to the Supreme Court. On 11 December 2020, the Supreme Court delivered its judgment and largely upheld the Court of Appeal's earlier decision, thus lowering the threshold that a proposed class representative needs to overcome when seeking certification of a collective proceedings order. The judgment represented a significant development for the United Kingdom's collective proceedings regime, although the longer-term impact will depend on how the Court's findings are implemented by the CAT.

A further milestone took place in October 2021 when the CAT delivered its certification judgment on the stand-alone claims in respect of rail tickets.30 The CAT ruled in favour of the applicant, Mr Gutmann, authorising him to act as the representative of what is alleged to be a class of millions of individuals. The order was made despite the CAT's own analysis suggesting that there was a risk of very low recovery for class members.

The UK's collective proceedings regime is still evolving, and it will be interesting to see how the certification decisions regarding claims following on from the European Commission's Trucks and Foreign Exchange cartel decisions are determined.

vi Private litigation funding rules

Several firms are authorised by the Financial Conduct Authority to provide third-party funding services (in which businesses offer litigation funding in return for a percentage of the damages), and an increasing number of cases are now funded in this way; however, the Consumer Rights Act prohibits the use of damages-based agreements in relation to opt-out collective actions.

Current developments

In July 2021, the UK government published a consultation on reforming competition and consumer policy.31 As part of the measures under consideration, the government is seeking views on the merits of providing holders full immunity in the public enforcement process (e.g., immunity granted by the CMA), with additional immunity from liability for private claims for damages caused by the cartel. It is also seeking views on whether improvements can be made to the current legal framework to give greater certainty over the handling of the identity of whistle-blowers across the enforcement process.

Footnotes

1 Philippe Chappatte is a partner at Slaughter and May and Paul Walter is a business development consultant.

2 CMA guidance as to the appropriate amount of a penalty, December 2021.

3 CMA guidance on competition disqualification orders, February 2019; and CMA cartel offence prosecution guidance, March 2014.

4 Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty.

5 Section 1 of the European Union (Withdrawal) Act 2018. Section 60A of the Competition Act 1998, which was introduced by the Competition (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/93), requires the UK regulators and courts to ensure that UK competition law is interpreted consistently with EU competition law as at 31 December 2020 but allows a departure from these principles where appropriate to do so based on specific factors.

6 Article 92 of the Withdrawal Agreement.

7 See, for example, Case C-97/08 P, Akzo Nobel NV and others v. Commission, judgment of 10 September 2009.

8 CMA information note, 'Arrangements for the Handling of Leniency Applications in the Regulated Sectors', November 2017.

9 Office of Fair Trading (OFT) publication, 'Applications for leniency and no-action in cartel cases', July 2013 (adopted by the CMA), and the addendum to this publication, 'Addendum to OFT1495', dated 24 September 2020, which applies to new leniency applications made on or after this date.

10 Immunity from criminal prosecution is granted in the form of a no-action letter issued by the CMA. A no-action letter will prevent a prosecution being brought against an individual in England, Wales and Northern Ireland. Guarantees of immunity from prosecution cannot be given in relation to Scotland, but cooperation with the CMA will be reported to the Lord Advocate, who will give such cooperation serious weight when considering whether to prosecute the individual in question and may give an early decision as to whether that individual remains liable to be prosecuted.

11 'Addendum to OFT1495', dated 24 September 2020, which applies to new leniency applications made on or after this date.

12 The CMA should not as a condition of leniency require waivers of legal professional privilege (LPP) over any relevant information in either civil or criminal investigations; however, except where the position is uncontroversial and clear to the CMA's satisfaction, the CMA will ordinarily require a review of any relevant information in respect of which LPP is claimed by an independent counsel selected, instructed and funded on a case-by-case basis by the CMA. See OFT publication, 'Applications for leniency and no-action in cartel cases', July 2013 (adopted by the CMA).

13 See OFT publication, 'Applications for leniency and no-action in cartel cases', July 2013 (adopted by the CMA).

14 The provisions of the Damages Directive were implemented into UK law by the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017.

15 Section 2 of the European Union (Withdrawal) Act 2018.

16 Section 36 of the Competition Act.

17 Where the affected market extends beyond the United Kingdom, the relevant turnover within the United Kingdom of each undertaking may not adequately reflect the weight of its role in the infringement. In those circumstances, the CMA may make adjustments to the relevant turnover.

18 The Consumer Rights Act permits the CMA to approve voluntary redress schemes (i.e., binding commitments entered into by infringers to provide compensation (whether monetary or otherwise) to consumers).

19 CMA guidance as to the appropriate amount of a penalty, December 2021.

20 CMA cartel offence prosecution guidance, March 2014.

21 Competition Act 1998: Guidance on the CMA's investigation procedures in Competition Act 1998 cases, updated in December 2021.

22 CMA officials are also able to inspect business premises without a warrant in certain circumstances.

23 Competition law redress – A guide to taking action for breaches of competition law, May 2016.

24 Paragraph 14 of Schedule 4 of the Competition (Amendment etc.) (EU Exit) Regulations 2019 (as amended by Regulation 39 of the Competition (Amendment etc.) (EU Exit) Regulations 2020).

25 The Competition Act was amended by the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017.

26 Previously, exemplary damages were available, in theory, in limited circumstances and at the court's discretion.

27 Section 2 of the European Union (Withdrawal) Act 2018.

28 Case 1257/7/7/16, Dorothy Gibson v. Pride Mobility Products Limited.

29 Case 1266/7/7/16, Walter Hugh Merricks CBE v. Mastercard Incorporated and Others.

30 Case 1304/7/7/19 Justin Gutmann v. First MTR South Western Trains Limited and another, and Case 1305/7/7/19 Justin Gutmann v. London & South Eastern Railway Limited.

31 Reforming Competition and Consumer Policy, 20 July 2021.

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