The Public Competition Enforcement Review: United Kingdom

Overview

The Competition Act 1998 (CA98) prohibits agreements or concerted practices that prevent, restrict or distort competition (Chapter I prohibition) and abuse of a dominant position (Chapter II prohibition), in each case within the UK. The Enterprise Act 2002 (EA02) contains the criminal cartel offence and the legal basis for UK merger review, market studies and market investigations.

The Competition and Markets Authority (CMA) has primary responsibility for public enforcement of competition law in the UK – both the Chapter I and Chapter II prohibitions – although these provisions may also be enforced by private parties before the courts. In addition, a number of sectoral regulators have concurrent powers to enforce the Chapter I and Chapter II prohibitions in the regulated markets that they supervise, and the same principles will apply to them as to the CMA when enforcing the CA98.

The CMA's enforcement functions are supported by its merger intelligence team, which looks out for non-notified mergers. The CMA's Data, Technology and Analytics (DaTA) unit, established in 2018, provides analytical and data management expertise to help the CMA with technical understanding when working with data, algorithms and other digital market features. The new kid on the CMA block is the Digital Markets Unit (DMU). The DMU, which was formally established in April 2021, will oversee a new 'pro-competition regime for digital markets'2 and will be responsible for dealing with the new ex ante legislative regime for digital firms with 'strategic market status'.

Going into 2022, the CMA had 36 open merger investigations (including five Phase II merger reviews), 14 competition enforcement cases, 13 consumer protection cases, three market studies and one market investigation under way, with three decisions appealed to the Competition Appeal Tribunal (CAT).3 In terms of resource allocation, the UK government allocated the CMA £109.6 million for 2021/2022, an increase of over £17 million on the 2020/2021 budget.4 This includes 'additional funding to roll out the dedicated Digital Markets Unit within the CMA, as government looks to legislate for a new digital markets regime that will place the UK at the global frontier'.5 As well as supporting the establishment of the DMU, the 2021/2022 budget will also be used to establish an Office for the Internal Market and the new Subsidy Advice Unit (SAU). The increase in CMA support is expected to continue for the coming years, with budget increases projected every year to 2024/2025.6

With respect to the CMA's enforcement agenda, the CMA published its report, 'The State of UK Competition' in November 2020.7 Reflecting on the deterioration of competition during the recession in 2008 to 2009 in particular, and a possible weakening of competition in the UK over the past two decades in general, the CMA remarked: 'We consider it gives sufficient cause for the CMA, regulators and government to remain vigilant in protecting and promoting competition, especially as the UK emerges from the severe economic impact of the [covid-19] pandemic.'8

Aside from the CMA, concurrent agencies are looking into more cases. The CMA's Annual Concurrency Report 2021 notes that at the start of the reporting period (i.e., 1 April 2020), there were nine open cases in the regulated sectors,9 three new investigations were launched in the reporting year and two investigations in regulated sectors resulted in an infringement decision.10

Cartels

Under the current UK regime, cartels are enforced by both civil and criminal means: corporate civil liability under the Chapter I prohibition contained in the CA98 or the criminal cartel offence for individuals under the EA02, or both.

i Significant cases

In terms of criminal cartels, these are comparatively rarer, with the CMA having opened only seven criminal cartel cases since the creation of the offence in 2003. The most recent criminal cartel investigation into the Supply of precast concrete drainage products closed in September 2017.11 Since then, the CMA has not launched any criminal cartel investigations.

Civil enforcement under Section 2 of the CA98 therefore remains very much the default enforcement method.

Supply of groundworks products to the construction industry

On 17 December 2020, the CMA issued a decision finding that two suppliers of groundworks products to the UK construction industry, Vp plc and MGF (Trench Construction Systems) Ltd, had colluded illegally to reduce competition and maintain or increase prices.12 A third company, Mabey Hire Ltd, was also found to have been involved in the cartel for a short time. The CMA found that the cartel arrangement took place on and off between 2011 and 2017, and was a response to increased price competition in the market. Specifically, the CMA concluded that Vp and MGF had engaged in conduct amounting to a horizontal cartel by coordinating commercial behaviour, in particular pricing practices, and sharing competitively sensitive pricing and strategic information. Fines totalling more than £15 million were imposed on Vp and MGF (£11.2 million and £3.7 million respectively). Mabey was not fined as it brought the illegal activity to the CMA's attention and cooperated with the investigation under the CMA's leniency programme.

Roofing materials

On 4 November 2020, the CMA issued a decision finding that Associated Lead Mills Limited, Royston Sheet Lead Limited (along with its parent company International Metal Industries Limited) and HJ Enthoven Limited (along with its parent company Eco-Bat Technologies Limited) had infringed competition law by entering into four anticompetitive arrangements.13 The CMA imposed fines totalling over £9 million on the parties, which include settlement discounts to reflect the fact that they admitted their role in the infringement and agreed to cooperate with the CMA. The four anticompetitive arrangements took place between October 2015 and April 2017 and included colluding on prices, sharing the rolled lead market by arranging not to target certain customers, and arranging not to supply a new business because it risked disrupting the firms' existing customer relationships. Each of the arrangements also included exchanges of commercially sensitive information.

Spire Healthcare

In July 2020, the CMA found that a hospital belonging to a large healthcare provider, Spire Healthcare Ltd (a member of the Spire Healthcare Group), and seven private consultant eye specialists had entered into an illegal agreement following a discussion at a consultants' dinner.14 The agreement was to fix the price of initial consultations for private self-pay patients at that hospital. The price-fixing agreement started in August 2017 and continued for at least two years until the CMA opened its investigation. Ultimately, six individual consultants were fined in the range of £642 to £3,859 for agreeing to fix initial consultation fees and the private healthcare group was fined £1.2 million. The fines were reduced by 20 per cent as the parties involved admitted wrongdoing and complied fully with the CMA. One of the seven consultants was granted full immunity under the CMA's leniency programme. Notably, the CMA stated in its decision that the infringement involved the 'most serious type of cartel behaviour' with Spire acting as both the instigator and facilitator of the agreement between these competitors.15

ii Trends, developments and strategies

Despite the lack of criminal enforcement, the CMA has been increasingly seeking director disqualifications in cartel (and other competition law) cases. These do not require a court process and so allow a 'softer' form of enforcement against individuals without needing to pursue the criminal cartel route and, for the time being, look set to remain a favoured enforcement tool. In February 2019, the CMA published guidance on competition disqualification orders, replacing the previous five-step assessment with a 'principles-based' approach.16 The CMA's Annual Plan 2021 to 2022 details 25 director disqualifications for breach of competition law since the power was first used in 2016, covering a wide range of sectors, including construction, pharmaceuticals and estate agencies.17

As part of its commitment to drive greater enforcement, the CMA has made a concerted effort to raise awareness of competition law.

iii Outlook

Although criminal prosecutions have not been the norm in terms of CMA enforcement, they are by no means dead yet. On 21 October 2020, the Serious Fraud Office (SFO) and the CMA signed a memorandum of understanding (MoU) in respect of their intention to cooperate in the investigation and prosecution of criminal cartel offences.18 The MoU sets out a range of possible types of investigation, including joint investigations, SFO or CMA-led investigations (with the participation of the non-leading authority subject to the direction of the leading authority) and concurrent investigations (with the CMA responsible for civil matters and the SFO responsible for criminal matters). Therefore, while the MoU does not exempt the CMA from its responsibility for cartel prosecutions entirely, it does indicate that the SFO is positioned and willing to share at least some of this responsibility. There is likely to be much to be gained from the SFO being able to take its own prosecutions forward or add expertise to CMA-led investigations. It remains to be seen, however, whether this MoU will act as a catalyst for increasing the amount of criminal cartel prosecutions following a relatively extended period of lesser enforcement.

In terms of potential reform, from July to October 2021, the Department of Business, Energy and Industrial Strategy (BEIS) published a range of proposals in the areas of competition policy, consumer rights and consumer law enforcement.19 The consultation recognises that there are 'inherent challenges' associated with detecting and pursuing effective enforcement against cartels, not least given the efforts of participants to conceal their behaviour.20 As such, the consultation contemplates reform to the leniency programme. Specifically, the consultation recognises that while leniency recipients are insulated from joint and several liability in private actions, they can still be liable for damages claims from their own direct or indirect purchasers.21 Therefore the consultation considers whether holders of full immunity in the public enforcement process should be imbued with additional immunity for damages caused by the cartel.22 The CMA supports this proposal.23 Also of potential relevance to cartel enforcement is the proposal that the CMA's powers in CA98 investigations be extended to match those under the EA02 (i.e., powers to interview witnesses that do not necessarily have a connection to the business under investigation, as is currently required by Section 26A(1) of the CA98).24 The outcome of the consultation is pending at the time of writing, but, whatever it produces, it is clear that the direction of travel across the spectrum of competition law is towards increased powers and enforcement.

Antitrust: restrictive agreements and dominance

The prohibition in Chapter I of the CA98 captures a range of restrictive agreements, including cartels (see above) and those agreements (both vertical and horizontal) that do not constitute hardcore cartels but nevertheless restrict competition.

i Significant cases

Resale price maintenance cases

In recent years the CMA has issued millions of pounds in fines to firms preventing retailers from offering discounts online, a form of anticompetitive behaviour known as resale price maintenance (RPM). In an effort to address this, the CMA updated its advice for retailers in June 2020.25 Following several RPM cases in 2020, there was a marked downturn in such cases in 2021, with the CMA bringing just one case in the lighting sector, which is summarised below.

Lighting cases

On 15 December 2021, the CMA issued a statement of objections to Dar Lighting Limited (Dar) alleging that Dar had breached Chapter I of the CA98 by restricting retailers' freedom to discount the online retail prices of domestic lighting products supplied by Dar.26 The CMA provisionally concluded that requiring the retailers to sell at, or above, minimum prices amounted to RPM. The CMA notes that this is the second time 'in recent years' it has investigated a company in the lighting industry in relation to RPM. The findings are provisional and pending a consideration of Dar's representations in 2022 before reaching a final decision.

Dar Lighting follows a previous finding of RPM in the sector in 2017, wherein National Lighting Company was fined £2.7 million.27

Other Chapter I and II CA 98 cases

Mobile ecosystems

In December 2021, the CMA issued its interim report into mobile ecosystems.28 The study was aimed at concerns that Apple and Google might have too much control over operating systems (iOS and Android), app stores (App Store) and web browsers (Safari and Chrome) that together the CMA classes as 'mobile ecosystems'. The interim report found that Apple and Google have been able to leverage their market power to create largely self-contained ecosystems, that make it 'extremely difficult for any other firm to enter and compete meaningfully with a new system'.29 The final report is due for publication in June 2022, but, in the meantime, the CMA has also opened narrower investigations into both companies.

In March 2021, the CMA initiated an investigation into Apple following both the CMA's own work in the digital sector and several complaints that the company's terms and conditions for app developers are unfair and anticompetitive.30 The case is examining a potential Chapter II infringement on grounds that Apple may have leveraged a dominant position to impose unfair or anticompetitive terms on developers in a manner that may have resulted in lower consumer choice or higher prices for apps and add-ons.

Google also attracted CMA attention back in January 2021, with another Chapter II investigation into Google's proposals to remove third-party cookies and other functionalities from its Chrome browser – the 'Privacy Sandbox' proposals. Again the CMA's investigation was partly prompted by complaints that Google may have been abusing a dominant position. Specifically, the CMA was concerned that the Privacy Sandbox proposals might have caused online advertising spending to become even more concentrated on Google, potentially weakening competition and so harming consumers. The CMA was also concerned that the proposals could undermine the ability of online publishers, such as newspapers, to generate revenue and continue to produce valuable content in the future – reducing the public's choice of news sources.31 Following a formal investigation, including two formal public consultations, the CMA accepted commitments from Google in February 2022.32 These commitments ably demonstrate the CMA's interventionist approach in digital markets regulation and include requirements that the CMA and the Information Commissioner's Office be directly involved in the development and testing of the Privacy Sandbox proposals to ensure that they achieve competition and privacy objectives. A monitoring trustee is due to be appointed to work alongside the CMA to ensure the commitments are monitored effectively.

Electric vehicle charging

In July 2021, the CMA issued its final report33 into electric vehicle charging. With the government bringing forward the ban on new petrol and diesel vehicles to 2030, the switch to electric is gaining pace. The CMA study looked at how to develop a competitive sector for electric charge points and how to ensure people using electric vehicle charge points have confidence that they can get the best out of the service provided. The final report found that while some parts of the sector are developing relatively well (such as rapid charging at destinations like shopping centres and charging at home or work), this is not the case across the entire sector. In particular, the CMA found that there were greater challenges in rolling out charging along motorways, remote locations and on-street. The CMA also found drivers of electric vehicles face other difficulties that make charging more difficult. For example, drivers may encounter issues finding and accessing working charge points and comparing costs for charging.

Based on its findings, the CMA made a number of recommendations. These include speeding up grid connections and lowering connection costs, rolling out a 'Rapid Charging Fund' to increase competition along motorways, targeting additional funding at remote areas where charging points are not readily available, ensuring local authorities take a more active role in managing on-street charging, and setting open data and software standards for home charge points.

Alongside publication of its final report, the CMA also launched an investigation into suspected breaches of the Chapter I and Chapter II prohibitions in respect of the supply of electric vehicle charge points on or near motorways.34 The investigation relates to long-term exclusive arrangements entered into by the Electric Highway Company Limited (owned by Gridserve), Ecotricity Group and three motorway service operators (Moto Hospitality Limited, Roadchef Limited and Extra MSA Holdings (UK) Limited). Gridserve has offered legally binding assurances that it will not enforce its exclusive arrangements,35 but the CMA has not yet reached a view on whether there is sufficient evidence for it to issue a statement of objections.

Pharmaceutical cases

Nortriptyline

Pharmaceutical cases continued to be a focus for the CMA. In March 2020, the CMA imposed fines of £3.4 million for competition law breaches with respect to the supply of nortriptyline, a drug used to relieve symptoms of depression.36 The CMA found that King Pharmaceuticals and Accord-UK (formerly Auden Mckenzie) had engaged in market sharing and collusion to fix quantities and prices for the drug. As a result, King and Accord-UK were fined £75,573 and £1,882,238 respectively. As in previous cases, the CMA extracted a commitment from the parties to make a payment to the National Health Service (NHS), in this case for £1 million. The CMA also fined King, Lexon (UK) Ltd and Alissa Healthcare Research Ltd £1,470,868 for illegally sharing commercially sensitive information about prices, volumes of supply and Alissa's plans to enter the market. King and Alissa both admitted to competition law breaches in these respects, which resulted in reduced fines. Additionally, a number of director disqualifications can be credited to this investigation. Lexon appealed the £1,220,383 fine imposed upon it by the CMA. However, the CAT unanimously rejected Lexon's appeal in a judgment delivered on 25 February 2021.37

Liothyronine

In the past year, there were further developments in the CMA's investigation into suspected abuse of dominance with respect to the sale of liothyronine tablets. The CMA opened the investigation in 2016. In January 2019, it issued a supplementary statement of objections provisionally finding that Advanz had engaged in anticompetitive behaviour with respect to its practices between January 2009 and July 2017. During this period the price paid by the NHS for liothyronine tablets rose from £15.15 to £258.19, an increase of 1,605 per cent, while production costs remained broadly stable. During that period, Advanz was the only supplier of liothyronine tablets in the UK. The High Court rejected a judicial review application on procedural grounds from Advanz in July 2019. On 10 July 2020, the CMA issued a second supplementary statement of objections alleging that Advanz had abused its dominant position in breach of the Chapter II prohibition and Article 102 of the Treaty on the Functioning of the European Union. The statement addresses issues arising from the Court of Appeal's judgment of 10 March 2020 in the Phenytoin litigation – a case that also relates to excessive and unfair pricing in the pharmaceuticals sector, in this instance by Pfizer and Flynn. The CMA's issued an infringement decision in July 2021 finding that Advanz had breached the Chapter II prohibition from at least 2009 to 2017 by charging excessive and unfair prices for liothyronine tablets in the UK.38 Advanz and three of its subsidiaries, and HgCapital and Cinven were required to pay a total penalty of £101,442,899. The companies filed appeales with the CAT against the CMA's findings in the infringement decision. The appeals are scheduled for September/October 2022.

Hydrocortisone

Another recent investigation is the CMA's investigation into Auden McKenzie and Actavis UK (now Accord-UK), which resulted in the CMA's finding that both companies had charged the NHS excessively high prices for hydrocortisone tablets for almost a decade. This and the Advanz investigation, constitute the CMA's two largest competition act investigations into the pharmaceutical sector. The CMA found that Auden and Accord-UK had increased the price of 10mg and 20mg hydrocortisone tablets (which are used by 'tens of thousands of people in the UK' to treat adrenal insufficiency) by over 10,000 per cent compared with the original branded version of the drug.39 The CMA imposed fines totalling over £260 million on the companies in July 2021, including a £66 million fine on Accord-UK and Allergan (a former parent company) for paying two 'would-be competitors to stay out of the market'. Auden and Actavis have appealed the decision to CAT. The appeals are scheduled for November/December 2022.

ii Trends, developments and strategies

With five cases in 2020, it is clear that RPM (particularly as it relates to online pricing restrictions) remains a top priority in the CMA's enforcement agenda. While historically, the enforcement of RPM has related to manufacturers, the CMA has fined a specialist retailer participating in this type of practice, indicating the possibility of retail-focused RPM enforcement.

Furthermore, with the introduction of the CMA's novel price monitoring tool, which will 'be used to monitor pricing and detect suspicious activity', it is expected that the CMA will be even more readily primed to, in its own words, 'clamp down on' sectors showing signs of RPM, 'allowing [it] to prioritise enforcement in those areas'.40 It should be noted accordingly that, as suggested in a CMA blog post dated 29 June 2020, the future enforcement of RPM could entail director disqualifications as well as fines.41 This would indeed be a significant move, with personal sanctions usually reserved for cartel behaviour between direct competitors. The message is clear: the CMA will enforce competition law against the practice of RPM with all the powers available to it.

The CMA has discretion as to whether it investigates alleged breaches of the CA98. Even where the CMA does not open proceedings, either because the facts are not sufficiently clear to establish whether there may have been a potential infringement or on the grounds of administrative priorities, it seeks to encourage compliance with the law. One way of doing this is through the sending of warning or advisory letters and according to a publication in February 2021, the number of competition warning letters issued by the CMA in 2020 nearly quadrupled compared with the previous year, rising to 97 from 27.42 The regulator also issued 14 advisory letters in 2020 compared with two in 2019.43 Advisory letters simply require acknowledgement of receipt whereas warning letters require the recipient to report back on how they will address the issues raised in the letter. Of those 97 warning letters, 12 related to RPM. Details of the number of such letters issued in 2021 are awaited, but the use of warning and advisory letters can be expected to continue.

iii Outlook

Key areas of interest for 2022 in terms of enforcement are likely to continue to be pharmaceuticals and the digital commerce sector, the latter of the two having grown exponentially as a result of the covid-19 pandemic. The CMA is also likely to strengthen its enforcement where it suspects breaches of consumer rights. For example, in connection with the publication of its IVF guidance on 10 July 2021 (which seeks to ensure patients understand their main consumer rights when considering and undergoing fertility treatment), the CMA stated: '[w]e will be closely monitoring the sector and will consider enforcement action if we believe businesses are not complying' with the guidance.44 Further, as discussed above, the CMA's renewed focus on RPM also looks set to continue, particularly in the area of online sales restrictions. More generally, the CMA's new DMU will no doubt come into its own, with more investigations into big tech to come once it gets into full swing.

The BEIS consultation on Reforming Competition and Consumer Policy proposes some substantial reforms to Chapter I and Chapter II enforcement, with the aim of making CMA investigations 'faster and more flexible so that anticompetitive conduct can be stopped sooner'.45 These would include, inter alia, expansion of the territorial scope of Chapter I to include agreements that 'have, or are likely to have a direct, substantial, and foreseeable effects within the UK',46 and the extension of the Chapter II prohibition to cover abuse of a dominant position in a market 'regardless of the geographical location of that market' where such conduct either takes place in the UK or is likely to have direct, substantial and foreseeable effects in the UK.47 BEIS is also considering some practical changes to the enforcement process, including the reduction of the threshold for immunity from penalties under Chapter I (currently available to companies with annual turnover of £20 million or less)48 and Chapter II (available to companies with turnover of £50 million) to a common threshold of £10 million.49 The CMA 'strongly supports' this proposal, noting that it has already encountered cases in small markets where these thresholds meant it could not impose financial penalties, further proposing that the Chapter I threshold be applied to parties' combined turnover.50

In terms of improving the enforcement regime for Chapter II investigations, the BEIS consultation considers a 'new settlement tool' for abuse of dominance investigations.51 This would be realised by creating an option for parties to enter into an 'early resolution agreement' with the CMA in Chapter II investigations. This would have all the features of settlement agreements under the status quo except that an early resolution agreement would not require the business to admit to an infringement of competition law and would not be binding as to matters of fact and liability in any follow-on damages claims against that company. There is also potential for settlement payments to be reduced compared with the fines that would have been applicable in the event of a full infringement decision.52 The CMA has expressed some reservations around this proposal, including with respect to penalty calculation and the impact on affected parties' avenues for redress.53 Whatever the outcome of the consultation it is at least clear that there is an appetite to balance an enhanced enforcement agenda with the expedition and simplification of enforcement procedure.

A final word on the outlook for 2022 should be dedicated to the 'green initiatives' increasingly being considered by competition regulators. On 27 January 2021, the CMA published guidance on environmental sustainability agreements and competition law.54 As stated by the CMA's Senior Director for Strategy, 'supporting the transition to a low carbon economy is one of the CMA's strategic objectives and [the guidance is designed to] help businesses to achieve their sustainability goals without breaching competition rules'.55 Notably, the guidance stresses that although the UK is no longer a member of the EU, a number of the EU Block Exemption Regulations have been retained as domestic law and, as such, sustainability agreements may well benefit from these. Where agreements do not fall under any of the existing block exemptions, individual exemptions may be given 'provided they generate benefits which are deemed to outweigh the disadvantages of restricted competition'.56

Sectoral competition: market investigations and regulated industries

The CMA and concurrent regulators have wide powers to study and investigate markets that they consider may not be working properly, and to make recommendations and impose remedies to improve the operation of competition in those markets. Market studies and investigations are a particular feature of the UK system, with previous investigations being high profile and tending to focus on consumer-facing industries. Until the recent increase in enforcement activity, much of the competition regulators' efforts were concentrated on these investigations.

i Trends, developments and strategies

Online platforms and digital marketing

As part of the CMA's digital market strategy, the CMA launched a market study into online platforms and the digital advertising market in July 2019. The market study was focused on the assessment of three broad potential sources of harm to consumers, including: (1) the extent to which online platforms might have market power in user-facing markets and potential impacts of that; (2) consumers' ability and willingness to control how their data is used and collected by online platforms; and (3) whether competition in the digital advertising market might be distorted by any market power held by online platforms. On 1 July 2020, the final report was published.57 Although it found that competition is not working well in the markets in question, the CMA did not make a market investigation reference. Instead the report's recommendations focus on the introduction of a new regulatory regime for digital platforms drawing on the work of the Digital Markets Taskforce (DMT). The government published its proposals for the new regime in July 2021, which the CMA has strongly supported.58

The DMT has named the new regulatory framework the strategic market status (SMS) regime. It will apply to the most powerful tech firms – those with strategic market status, meaning those with 'substantial, entrenched market power in at least one digital activity, providing the firm with a strategic position (meaning the effects of that market power are particularly widespread and/or significant)'.59 The DMT writes that the assessment of strategic market status will be an 'evidence-based economic assessment'.60 Overseeing the proposed SMS regime would be the specialist DMU, which would function as a centre of expertise for digital markets, with the capability to understand the business models of digital firms, including the role of data and the incentives driving how these firms operate.61 The DMU will also be responsible for designating firms with SMS. The proposed regime itself is comprised of 'three pillars' as detailed below:

The first pillar is an enforceable code of conduct based on principles that would be evidence-driven and targeted, preventing harmful behaviour without limiting positive or benign behaviour. The code will set out how the firms with SMS should act and behave and its objective is to 'manage the effects of market power; for example, by preventing practices which exploit consumers and businesses or exclude innovative competitors'.62

The second pillar relates to the power of the DMU to make pro-competitive interventions that are designed to address the root causes of substantial and entrenched market power, to encourage competition. These could include data mobility, interoperability and data access. The intention is that such interventions could seek to drive longer-term changes to market dynamics and so open up opportunities for greater competition and innovation.63

The third pillar consists of specific merger rules that would apply solely to companies with SMS and would create a new reporting requirement whereby the CMA would need to be informed of all mergers in advance. This would be accompanied by a broader set of jurisdictional thresholds for SMS mergers, with a subset of the largest transactions by firms with SMS potentially to undergo a mandatory merger review prior to completion.64

As far as next steps are concerned, while the DMU has been established on a non-statutory basis focusing on 'operationalising and preparing for the new regime', the government has committed to legislate to put the DMU on a statutory footing when parliamentary time allows. It appears the government is still considering the responses to the consultation, which closed in October 2021, and thus further developments are likely as moves are made towards legislation in 2022.

Other market studies

At the time of writing the CMA lists nine open market mandates, including the three new market studies opened during 2021 into mobile ecosystems, children's social care and mobile radio networks. There is a very clear digital focus in the CMA's market work as, in addition to the ongoing work of the DMT, three of its open market studies are in the digital sector, including its newly opened market study into music and streaming services, launched in January 2022.65 The study was launched following a House of Commons Digital, Culture, Media and Sport committee report,66 which raised concerns about the extent to which creators were benefiting from the growth in streaming and the role of the 'major' music companies. The scope of the study is broad, looking at arrangements concerning the acquisition and licensing of music rights, the distribution of digital music and arrangements between music creators, music companies and other intermediaries. The CMA will assess whether innovation is being stifled and if any record labels or streaming services hold excessive power, which could harm consumers, musicians, singers or songwriters.

ii Outlook

The BEIS consultation on Reforming Competition and Consumer Policy laments that the market inquiry process, and market investigations in particular, 'are overly cumbersome and significantly underused'.67 As such, the consultation foresees a number of reforms, aimed at achieving a more 'efficient, flexible and proportionate market inquiry process'.68 There are various proposals to achieve this, including enabling the CMA to impose certain remedies at the end of a market study, without the need for a market investigation, and these are likely to be decided upon by the CMA board.69 Alternatively, the consultation also considers replacing the existing market study and market investigation system with a new single-stage market inquiry tool.70 Either of these options could potentially be coupled with the power to accept commitments or impose interim measures at any point during a market inquiry – this would be a departure from the status quo, whereby the CMA may only impose interim measures after it has issued a final report.71 These are only some of the potential reforms considered by the consultation, but, again, it is apparent that the direction of travel is very much in favour of giving the CMA more enforcement powers in this area.

State aid

The Trade and Cooperation Agreement entered into between the UK and the EU on 24 December 2020 (TCA), set out the broad framework governing the UK's departure from the EU. Among the commitments in the TCA was the requirement that each party have in place an 'effective system of subsidy control' capable of satisfying certain principles such as proportionality, incentive effect, appropriateness, etc.72 The EU, of course, already has a system in place in the form of the EU state-aid regime, but the form that the UK's regime will take was first set out in the Subsidy Control Bill (SCB), first introduced to Parliament on 30 June 2021. The SCB governs the grant of subsidies, defined as financial assistance granted from public resources in a manner that confers an economic advantage on specific enterprises with respect to the provision of goods or services and is capable of having an effect on competition or investment within the UK or on trade between the UK and another territory or country.73 Subsidies will have to comply with seven 'subsidy principles' including proportionality, necessity, incentive effect, etc. Both the concept of subsidies and the principles that govern their grant are clearly inspired by equivalent state-aid concepts. What are significant departures, however, are the oversight and enforcement mechanisms that will comprise the UK regime.

The SCB contemplates an ex ante assessment mechanism. Where any notifiable state aid must receive pre-approval from the European Commission before it is granted, the SCB will expect the granting authority to perform the relevant assessment, (i.e., that the subsidy complies with the seven subsidy principles).

The SCB also creates the concept of 'Subsidies of Interest' and 'Subsidies of Particular Interest'.74 Draft regulations published in January 2022 provide some indication of how these will be defined. The draft definition of a Subsidy of Particular Interest will capture: (1) a subsidy in any sector above an as yet unfinalised monetary threshold somewhere in the region of £5 million to £10 million per enterprise; (2) subsidies for restructuring ailing or insolvent enterprises, or deposit takers or insurance companies;75 and (3) subsidies in excess of £1 million to £5 million per enterprise that also concern a 'sensitive sector'. If a subsidy is deemed a Subsidy of Particular Interest, it will be subject to mandatory review by the Subsidy Advice Unit (SAU) of the CMA before it can be granted. The SAU will assess the granting authority's assessment of the subsidy against the seven subsidy control principles and will have 30 working days to produce a report. In another significant departure from the EU state-aid regime, however, that report will not be binding.

Subsidies of Interest will capture: (1) subsidies in any sector in excess of a lower monetary threshold, most likely in the region of £1 to £5 million per enterprise; and (2) subsidies for rescuing ailing or insolvent companies, or for liquidating or providing liquidity support to deposit takers or insurance companies.76 These will be subject to a voluntary procedure of referral to the SAU. According to a BEIS policy statement on the operation of the SCB, published in January 2022, the intention is that Subsidies of Interest will not ordinarily be referred to the SAU unless they also exhibit particular design features that indicate they may potentially pose a higher risk of negative effects on domestic competition or international trade.77 BEIS has indicated that a final list of the 'design features' that could indicate a voluntary referral is merited will be published before the SCB commences, but this will include, for example, the absence of any competitive tender or competitive process in the grant of the subsidy.

The SCB also deviates from the EU state-aid regime in how it will handle challenges to subsidy awards. Unlike the EU state-aid regime, which has a relatively accessible complaints procedure, challengers to a subsidy under the SCB will need to seek judicial review before the CAT if they believe a subsidy is not compliant with the subsidy rules.

At the time of writing, the SCB is at committee stage before the House of Lords, with adoption expected during 2022.

Merger review

The CMA carries out both Phase I and, if warranted, in-depth Phase II merger investigations in the UK. Except for a limited category of investigations (in which the government makes the final decision), decisions at Phase II are made by a panel independent from the case to avoid any 'confirmation bias'. The UK regime is also unusual in that merger notifications are voluntary, but the CMA has the ability to investigate non-notified transactions (and, if found necessary, impose remedies in completed mergers). The CMA has an active Merger Intelligence Unit that monitors merger and acquisition activity for transactions that may raise competition concerns.

To fall within CMA jurisdiction a transaction must qualify as a 'relevant merger situation' insofar as (1) two or more enterprises will cease to be distinct,78 and (2) the jurisdictional thresholds are met. The ordinary jurisdictional thresholds require that the value of the target's turnover in the UK exceeds £70 million or the 'share of supply' test is met.79 The share of supply test requires that the parties to the transaction together supply or acquire goods or services that, after the merger, represent at least 25 per cent of those goods or services supplied in the UK or a part of it.80 The merger must also result in an increment to the parties' share of supply or acquisition.81

Relevant merger situations may also be subject to review, via the issue of an intervention notice by the Secretary of State (SoS), if he or she considers that public interest considerations maybe relevant to the transaction.82 The specified public interest grounds are set out in Section 58 of the EA02. These include cases relating to accurate news and free expression (e.g., newspapers),83 media plurality, media standards and broadcasting,84 prudential regulation,85 and the UK's 'capability to combat, and to mitigate the effects of, public health emergencies.86 If the relevant SoS considers that one or more of these public interest grounds are met, and has 'reasonable grounds' to suspect that the transaction in question results in a relevant merger situation (or is so informed by a competition regulator), then the SoS can issue a public interest intervention notice.87 Notably, the SoS also has the power to intervene in transactions on the basis of a consideration that is not specified but that, in his or her opinion, ought to be.88 In these cases, the SoS must present an order for approval before both Houses of Parliament, where such approvals must be given within 28 days.89 As such, the public interest grounds upon which the UK government can intervene in a transaction that creates a relevant merger situation are relatively fluid and flexible, allowing the government continually to revise and alter its approach to these forms of investment in the UK. If a public interest intervention notice is issued, the CMA initiates an investigation into the merger, including a review of any public interest (and, if applicable, any competition) issues. The CMA can be expected to have less work emanating from public interest reviews going forward, however. To date, the vast majority of public interest intervention notices have been issued in transactions falling within the national-security public interest category. As the National Security and Investment Act 2021 (NSIA) regime became operational on 4 January 2022, transactions of this nature will now be dealt with under its auspices and reviews will fall to a new authority in the form of the newly created Investment Security Unit within BEIS. (For more on the NSIA see Section VI.ii.)

i Significant cases

Decisions

Meta/Giphy

On 30 November 2021, the CMA formally prohibited the Meta acquisition of Giphy following a Phase II merger review. Meta acquired Giphy on 15 May 2020. The merger was not notified to the CMA, but the CMA opened an investigation on the basis of its powers to assert jurisdiction where the jurisdictional thresholds are met. The CMA put a hold-separate order in place in June 2020 and referred the transaction to a Phase II review on 1 April 2021. The case is one of many examples of the CMA taking a generous approach to its own jurisdiction under the share of supply test, not least given Giphy does not generate any turnover in the UK. The CMA determined that the transaction would result in a substantial lessening of competition (SLC) in social media and display advertising. One of the striking features of the CMA's report is the extent to which the CMA appears to have relied on a massive-scale review of the parties' internal documents: the CMA collected over 280,000 internal documents in the course of its assessment.90 Meta/Giphy had perhaps the misfortune of being the first major merger on the chopping block to enjoy the convergence of the CMA's more aggressive enforcement approach in Phase II merger reviews and its fascination with digital markets; it seems likely that it will not be the last. Meta has appealed the CMA decision to the CAT, with a hearing scheduled for April 2022.91

JD/Footasylum

The long-running saga in JD Sports/Footasylum, which began in 2019, continued into 2021. The completed merger was referred for a Phase II investigation on 1 October 2019 and subsequently blocked on 6 May 2020, with the CMA finding that the merger would result in an SLC in sports-inspired casual footwear and apparel products sold both in stores and online, ultimately leaving this retail segment worse off.92 The CMA recommended the divestment of the entirety of the Footasylum business to a suitable buyer. As if foreshadowing events to come, the CMA included a disclaimer in its final report, writing that the uncertain and challenging trading conditions that many retailers were facing because of covid-19 had only arisen during the final stage of the investigation and that, accordingly, the evidence gathering for its investigation was mostly completed before the effects of covid-19 arose. JD Sports appealed the CMA's decision before the CAT on the grounds that the CMA erred in law or acted irrationally by excluding the effect of covid-19 on Footasylum when considering the relevant counterfactual, or when assessing the impact of the merger on competition in the relevant market.93 Significantly, the CAT partially upheld JD Sport's appeal finding that, generally speaking, the CMA had acted irrationally in not gathering sufficiently robust evidence in relation to the impact of covid-19 on the parties and that, accordingly, the regulator did not have the necessary evidence for drawing the conclusions that it did. Additionally, the CAT found that the CMA had acted irrationally in not requesting information from the suppliers on the impact of the pandemic to determine whether this would have created a stronger constraint on the merged entity and therefore not resulted in an SLC. Instead, the CMA relied on evidence from the suppliers that was only relevant to a pre-pandemic market. The case was therefore remitted back to the CMA for reconsideration on these points, with the CAT remarking that the 'assessment of the effects [of covid-19 are] sufficiently material to the CMA's overall conclusions as to require further examination of the final report as a whole'.94

The CMA made the decision to appeal the CAT's judgment, writing on its website that 'it is the CMA's belief that the CAT misapplied the law in reaching [its] decision. The CMA determined that at the time of the final stages of its investigation – shortly after the UK had entered lockdown – the uncertainty facing retailers and suppliers meant they were not in a position to provide robust evidence on the medium to long-term impact of coronavirus from which reliable conclusions could be drawn'.95 However, on 17 December 2020, the CAT rejected the CMA's request for appeal, restating that on two particular aspects of its investigation the CMA did not seek sufficient evidence, and drew conclusions on the impact of covid-19 that the evidence before it did not allow it properly to draw.96 Therefore, it was right that the case be remitted back to the CMA for a second review. In its final report on remittal published on 5 November 2021, the CMA concluded that the takeover could lead to a substantial reduction in competition and a worse deal for Footasylum's customers. The CMA considered that the requirement imposed on JD Sports to sell Footasylum was the only way to address its competition concerns and protect consumers. On 14 January 2022, the CMA accepted final undertakings from JD, including the divestiture of Footasylum.

ii Trends, developments and strategies

The CMA is certainly engaging with the full breadth of its powers when it comes to exercising its jurisdiction in merger control cases, and that trend is likely to continue. It has been remarked relatively widely that although the UK's merger control regime remains voluntary, its approach of late has brought it closer to being a de facto mandatory regime. That characterisation is as a result of a number of trends, including its (sometimes contentious) approach to asserting jurisdiction and requiring remedial action when investigating completed mergers, and its approach to initial enforcement orders (IEOs). The CMA has in recent years regularly investigated alleged breaches of IEOs and imposed fines for failing to comply with them (see further below).

Also of note in the post-Brexit environment is that the CMA recently signed a new agreement with five of its international counterpart competition authorities (from Australia, Canada, New Zealand and the United States (Federal Trade Commission and Department of Justice)) to deepen cooperation on competition enforcement.97 The agreement, named the 'Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities' includes an MoU designed to reinforce and improve existing case coordination and collaboration tools among the agencies, including in relation to merger control, and a model cooperation agreement. Comments made by the CMA's chief executive in early February 2021 indicate that the UK government wishes to sign enhanced cooperation agreements with the EU later in the year and to engage more fully with both the Member States and the European Commission.98 The CMA, he remarked, is fully supportive of the idea, but it is the government that will be responsible for implementing it. Assuming such cooperation agreements are signed and assuming that the CMA is able to engage fully with Member States and the Commission on merger control, it might be the case that parallel reviews become slightly less burdensome than they otherwise might be.

Between 29 and 30 November 2021, the heads of competition authorities from Australia, Canada, France, Germany, India, Italy, Japan, South Africa, South Korea, the UK and the United States had their first-ever G7 Digital Competition Enforcers Summit, which the CMA hosted in its London headquarters. The competition authorities had come together to discuss 'the challenges of digital markets and big tech' and the summit was aimed at strengthening 'relationships between international cooperation authorities' and 'increase collaboration on issues related to competition in digital markets'. The chief executive officer (CEO) of the CMA, Andrea Coscelli, highlighted the importance of the summit and noted that 'these global challenges require a global coordinated response, which is why this Summit is so vital'.99

Updated CMA guidance

Following a public consultation, which closed on 8 January 2021, the CMA published its updated Merger Assessment Guidelines on 18 March 2021.100 The guidelines indicate an increased focus on the potential for future competition and considering innovation, and other non-price-related effects, in the assessment of the likelihood of an SLC.101 The updated assessment guidelines accompany updates to the CMA's guidance on jurisdiction and procedure during merger reviews,102 and also revised guidance on its merger intelligence function.103

All three updates are significant in their own right, but a selection of some of the key points are as follows. In line with the CMA's increasingly elastic approach to asserting jurisdiction (as seen in the above case of Meta/Giphy, as well as in Amazon/Deliveroo, Roche/Spark and Sabre/Farelogix), the updated guidance on jurisdiction and procedure states that, while the CMA cannot apply the share of supply test unless the merging companies 'together supply or acquire the same category of goods and services (of any description)', it will consider the commercial reality of the merging companies' activities when assessing how goods or services are supplied, 'focussing on the substance rather than the legal form of arrangements'.104 It goes on to state that, in practice, this means that the test can be met by, or capture within its scope, pipeline products or services or any situation where 'there are sufficient elements of common functionality between the merger parties' activities'.105

The updated jurisdictional and procedural guidelines also formalise a procedure to fast-track cases to Phase I remedies or Phase II review, as well as setting out how companies can 'concede' that their deal has the potential to substantially lessen competition.106 On the first point, merger parties can now fast-track to the consideration of undertakings in lieu of reference (UILs) to a Phase II investigation; the objective being to reach a Phase I clearance with remedies more quickly. A request for referral for consideration of UILs can be submitted as early as the pre-notification stage (where the parties are in dialogue with the CMA on the completeness of the draft merger notification). The second purpose for fast-tracking is to proceed more quickly to an in-depth Phase II review, and requests can be made during the Phase I investigation or, again, during the pre-notification period. In both instances, the updated guidance acknowledges that 'the CMA will therefore not follow all of the normal procedural steps' including reducing time for third-party consultations in the first instance, given that third parties will have the opportunity to present their views either during the consultation on the proposed UILs or during the Phase II investigation, depending on which particular fast-track route is being pursued.107

Similarly, in the updates to the Merger Assessment Guidelines, the CMA stresses that, when identifying the relevant market for the purposes of its investigation into whether a merger has, or will, result in an SLC, it will 'place more emphasis on the competitive assessment as opposed to the static market definition'.108 In other words, the CMA will ensure it is not bound or restricted by a formal market definition where that definition does not capture the competitive dynamics of the given market. The updated Merger Assessment Guidelines also introduce a much more comprehensive section on 'potential competition', which refers to competitive interactions involving at least one firm that has the potential to enter or expand in competition with other firms. This increased attention on potential competition is not coincidental; on the contrary it ties in with one of the recurrent themes throughout the updated guidance (and, for that matter, a great deal of the recently published CMA literature) namely, under-enforcement in digital markets. After all, it is known that this market is one in which relatively early stage acquisitions of small firms by larger, more powerful players can reduce if not eliminate potential or future competition in the market (the 'killer acquisition' hypothesis). Equally, an increased focus on potential competition might put the CMA in a better position to consider any efficiencies that could arise from digital mergers that, it has been argued, it might have previously overlooked.

The concession of an SLC is reserved for Phase II investigations, and the guidance provides two examples of where a merger party might wish to consider such a concession: the first is where it would 'aid the alignment of the CMA's remedies process with proceedings in other jurisdictions' and the second is where it would 'enable the CMA and merger parties to focus their efforts during the remainder of the CMA's substantive assessment on other areas'.109 Notably, for a party to concede an SLC is to waive its right to challenge that position during a Phase II investigation and, of course, the CMA reserves the right to decline a request to concede an SLC 'where this would not be appropriate for the substantive assessment of the case'.110 Ultimately, while fast-track cases have been possible (as recently used in the Crowdcube/Seedrs merger investigation), the updated guidance has formalised this, with the now established expectation that the option will not be limited to exceptional circumstances.

Initial enforcement orders and procedural breaches

On 9 June 2020, the CMA issued an initial enforcement order (IEO) against Meta (then Facebook) and Giphy even before it had formally launched an investigation into the proposed merger. The CMA then appointed a monitoring trustee and a hold-separate trustee to ensure that, in accordance with the IEO, the Giphy business operates as a viable and competitive business, separately from and independently of the Facebook business. On 10 June 2020, Meta requested carve-outs from the IEO so that certain provisions of the order would not apply to it. The CMA made further requests for information to review the carve-out request but Meta did not provide the information. Accordingly, no derogations of this kind were granted and Meta launched an appeal on the grounds that the IEO was irrational and disregarded the statutory purpose for which the CMA may order interim measures against a merger party, and was disproportionate and in breach of the legal certainty principle. The CAT dismissed the appeal on all grounds.111

Significantly, the CAT's judgment has confirmed that the CMA has broad scope to impose IEOs: the CMA is not required to have formed a view as to whether a Phase II investigation is likely or whether any action taken by the parties will impact the CMA's remedial options – merely the risk or possibility of the aforementioned factors is enough. Secondly, the judgment confirms that the CMA is fully entitled to request information and that it has a wide margin of appreciation to decide what information is needed. The court stressed that the CMA is under a duty to acquaint itself with relevant information and of course it cannot review an IEO without access to this information. As noted by CMA CEO Andrea Coscelli, 'initial enforcement orders are an essential part of the CMA's merger toolkit' and that companies seeking derogations from IEOs 'must provide sufficient information to the CMA before a decision can be made to release them' from the obligations.112

The Meta/Giphy appeal can be seen as an important case in terms both of providing guidance on the practical application of the IEO and of the scope of the CMA's discretion as it relates to the use of a tool of this kind. It also illustrates the CMA's approach when it comes to breaches of an IEO. The CMA has now fined Meta twice for breaches of its IEO: in October 2021, the CMA imposed a fine of £50.5 million on Meta for its failure to comply with the IEO, which to date, is the highest fine imposed by the CMA for non-compliance with an IEO. Before this, the highest fine imposed by the CMA for breach of an IEO was £325,000 (where ION Trading Technologies Ltd and its Irish parent company were fined for 'failures to comply, without reasonable excuse, with the requirements imposed' by virtue of the IEO).113 Then, in January 2022, Meta was fined a further £1.5 million for failure to alert the CMA of the departure of key staff, as required by the IEO.

The same approach to procedural propriety is evident in Amazon/Deliveroo where, in September 2020, the CMA imposed two penalties of £25,000 and £30,000 for the late provision of information. In a slightly different vein, the CMA fined Sabre £20,000 in the Sabre/Farelogix case for unintentionally (but negligently) withholding information.

A new mandatory regime for national security cases

The NSIA regime, which became effective on 4 January 2022, requires mandatory notification of mergers and acquisitions by investors involving companies active in certain sensitive sectors. Acquisitions will be notifiable where an investor gains control of a qualifying entity or asset because of an increase in either shares or voting rights by exceeding any of the following thresholds: exceeding, for the first time, a threshold of 25, 50 or 75 per cent; gaining material influence over the company (whether alone or together with other interests or rights that the investor may already hold) or gaining the ability to block or pass resolutions of the target.

The 17 sectors subject to the mandatory notification regime under the NSIA are as follows: advanced materials, civil nuclear, critical suppliers to government, data infrastructure, synthetic biology, satellite and space technologies, artificial intelligence, communications, critical suppliers to the emergency services, defence, military and dual-use technologies, transport, advanced robotics, computing hardware, cryptographic authentication, energy and quantum technologies. Notified transactions in these sectors will be scrutinised to evaluate the extent to which they may pose a threat to national security, in which case the government will have the ability to impose conditions on parties, such as altering the equity level that an investor is allowed to acquire, restricting access to certain commercial information or controlling access to certain operational sites or works. There will also be a last-resort option to block a deal in any sector deemed to pose an unacceptable national security risk. BEIS has made clear that it expects that the vast majority of transactions will require no intervention and will be cleared quickly.

Transactions requiring mandatory notification that are closed without clearance will be legally void. The NSIA creates sanctions for non-compliance of up to 5 per cent of global turnover or £10 million – whichever is the greater.114 The bill also makes provision for criminal sanctions, including imprisonment of up to five years. This is a major change from the current position, where, because of the voluntary nature of UK merger control, there are no sanctions for completing deals without clearance, although such transactions can be investigated post-closing and remedies imposed (including partial or full divestment) if required to address any competition or, indeed, national security issues.

A significant feature of the NSIA is the five-year 'retrospective power' to review completed transactions deemed to raise potential national security concerns. It should be noted that the five-year rule is not without exception. Should the SoS be made aware of the transaction, the 'call in' power only extends to six months. This means that there will be strong incentives for purchasers either to voluntarily approach BEIS even when a mandatory notification is not required or otherwise to make sure details of the transaction are publicised sufficiently to ensure the SoS is 'aware' of them. Furthermore, the power for retrospective review became effective for all deals concluded from 12 November 2020, which means the government is be able to review deals that completed after that date.

To handle notifications the new Investment Security Unit has been created within BEIS. The SoS will have exclusive competence to call in deals for review and make a determination on potential national security concerns. There is statutory deadline for the completion of an initial review of 30 working days from the date a complete notification is made, after which point transactions will be cleared or subject to a 'call-in review'. If a call-in notice is issued, either in respect of notified transactions or because the SoS has elected to issue the notice for un-notified or completed transactions (including under the retrospective powers), there will be an initial review period of 30 working days, extendable by a further 45 working days where required (subject to certain tests being met). The government has predicted that it will receive around 1,000 to 1,830 notifications under the NSIA and could be calling in as many as 70–95 transactions a year for a full assessment.115 This compares with an average of fewer than one intervention notice a year issued by the government since the EA02 regime came into force. It remains to be seen whether these predictions will be met in 2022.

iii Outlook

In terms of the coming months, the BEIS consultation on Reforming Competition and Consumer Policy again indicates that there is appetite for more activist reform of CMA powers in this field. However, notwithstanding the changes contemplated with respect to SMS mergers (see Section IV.i), the consultation also seems to 'rebalance' merger control with a process that 'enable[s] the CMA to better scrutinise potentially harmful mergers while reducing costs to businesses in other cases'.116 One proposal for achieving that objective is raising the turnover threshold from £70 million to £100 million and creating a safe harbour for mergers between small business where the worldwide turnover of the merging parties is less than £10 million (even if the parties might otherwise have met the share of supply test).117 There may be further amendments to the jurisdictional thresholds, however, specifically to enhance the ability of the CMA to catch killer acquisitions. To this end the government is considered empowering the CMA to review a merger if any party has both a share of supply of at least 25 per cent and UK turnover in excess of £100 million.118

Conclusions

Looking forward, the CMA has proposed to focus on the following five themes:

  1. protecting consumers from unfair behaviour by businesses, during and after the coronavirus pandemic;
  2. fostering competition to promote innovation, productivity and long-term growth right across the UK;
  3. promoting effective competition in digital markets;
  4. supporting the transition to low-carbon growth, including through the development of healthy competitive markets in sustainable products and services; and
  5. delivering on its new responsibilities and strengthening its position as a global competition and consumer protection authority.

We have already seen significant developments in each of these areas, ranging from a study on algorithms designed to expand the regulator's understanding of, and expertise in, digital markets through to a guidance paper on the interaction of competition law and sustainability and the publication of the Green Claims Code. In 2022, we are likely to see legislation to support the CMA's work in these five areas, in particular in relation to the implementation of the pro-competitive regime for digital markets. As remarked by Andrea Coscelli,119 the UK's plans to regulate big tech will be an 'early test of Brexit' insofar as it may indicate the extent to which the UK is willing to diverge from the emerging EU legislation in the same field. Both Coscelli himself and the CMA's chief economist, Mike Walker, have commented that while it is not preferential to have substantial regulatory diversion within Europe (or across the Atlantic) this does not mean that the UK would not seek to pursue and develop its own unique or bespoke approach to competition enforcement in certain areas or sectors.

Furthermore, the CMA has stated that it is ready to launch complex cartel and antitrust cases and merger investigations with a global dimension that would have previously been reserved to the European Commission. With more staff on hand and an increased budget, we wait to see whether the regulator's predications for its increased workload will come true or whether the prospect of greater regulatory intervention will have a chilling effect on mergers and acquisitions with a UK dimension.

What seems certain is that the CMA will continue with its activist (or interventionist) approach, which means that all dealmakers must account for a higher risk of regulatory review in the UK. For legal advisers, it will be necessary to take into consideration the CMA's more flexible approach to asserting jurisdiction to help mitigate the risks of an investigation, as well as navigating the new requirements under the NSIA. Companies and advisers will need to interact with both the CMA and BEIS in many cases.

Footnotes

1 Marc Israel is a partner, Kate Kelliher is an associate and Hanna Hedayati is a trainee at White & Case LLP.

2 CP 489, Consultation on a new pro-competition regime for digital markets, published 20 July 2021.

3 CMA Annual Plan consultation 2022 to 2023, published 2 December 2021.

4 HC822, Autumn Budget and Spending Review 2021, Table 4.21.

5 HC822, Autumn Budget and Spending Review 2021, para. 4.136.

6 CMA Annual Plan consultation 2022 to 2023, published 2 December 2021.

7 CMA133, The State of UK Competition, 30 November 2020.

8 CMA133, The State of UK Competition, 30 November 2020, para. 8.

9 CMA138, promoting competition in services we rely on: The annual concurrency report 2021, para. 18.

10 CMA138, promoting competition in services we rely on: The annual concurrency report 2021, para. 6.

11 Case CE/9705/12 Supply of precast concrete drainage products, 12 March 2013.

12 Case 50415, Decision of the CMA: Supply of groundworks products to the construction industry, 17 December 2020.

13 Case 50477, Decision of the CMA: Roofing materials, 4 November 2020.

14 Case 50782-1, Decision of the CMA: Privately funded ophthalmology services, 1 July 2020.

15 Case 50782-1, Decision of the CMA: Privately funded ophthalmology services, 1 July 2020, para. 6.24(a).

16 CMA102, Guidance on Competition Disqualification Orders, 6 February 2019.

17 CMA137, CMA Annual Plan 2021/22, March 2021, para. 2.31.

19 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021.

20 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.159.

21 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.160.

22 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.161.

23 CMA149con, CMA Response, Reforming Competition and Consumer Policy, 4 October 2021, para. 2.77.

24 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.171.

25 See: Resale price maintenance: advice for retailers – GOV.UK (www.gov.uk).

26 CMA press release, CMA provisionally finds lighting firm illegally banned discounts, 16 December 2021.

27 Case 50343, Decision of the CMA: Online resale price maintenance in the light fittings sector, 3 May 2017.

28 CMA, Mobile ecosystems: market study interim report, 14 December 2021.

29 CMA press release, Apple and Google duopoly limits competition and choice, 14 December 2021.

30 CMA press release, CMA investigates Apple over suspected anticompetitive behaviour, 4 March 2021.

31 CMA press release, CMA to keep 'close-eye' on Google as it secures final Privacy Sandbox commitments, 11 February 2022.

32 Case 50972, CMA Decision to accept commitments offered by Google in relation to its Privacy Sandbox Proposals, 11 February 2022.

33 CMA, Electric vehicle charging market study: final report, 23 July 2021.

34 CMA press release, Further action needed on EV charging to meet Net Zero, 23 July 2021.

35 CMA press release, CMA to open up electric vehicle charging competition on motorways, 17 November 2021.

36 Case 50507-2, Nortriptyline investigation: anticompetitive agreement and conduct.

38 Case 50395, Decision of the CMA: Excessive and unfair pricing with respect to the supply of liothyronine tablets in the UK, 29 July 2021.

39 CMA press release, CMA finds drug companies overcharged NHS, 15 July 2021.

42 CMA Corporate Report, Warning letters issued by the CMA, updated 18 February 2021.

43 CMA Corporate Report, Warning letters issued by the CMA, updated 18 February 2021.

44 CMA Annual Plan consultation 2022 to 2023, published 2 December 2021, para 2.20.

45 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.139.

46 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.149(a).

47 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.149(b).

48 This immunity option is not available for price-fixing agreements.

49 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.154.

50 CMA149con, CMA Response, Reforming Competition and Consumer Policy, 4 October 2021, para. 2.71.

51 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, paras. 1.179 to 1.184.

52 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.182.

53 CMA149con, CMA Response, Reforming Competition and Consumer Policy, 4 October 2021, paras. 2.79 to 2.83.

54 CMA Guidance, Environmental sustainability agreements and competition law, 27 January 2021.

55 CMA press release, Sustainability agreements: CMA issues information for businesses, 27 January 2021.

56 CMA Guidance, Environmental sustainability agreements and competition law, 27 January 2021.

57 CMA, Online platforms and digital advertising: Market study final report, 1 July 2020.

59 CMA135, A new pro-competition regime for digital markets: Advice of the Digital Markets Taskforce, December 2020, para. 12.

60 CMA135, A new pro-competition regime for digital markets: Advice of the Digital Markets Taskforce, December 2020, para. 12.

61 CMA135, A new pro-competition regime for digital markets: Advice of the Digital Markets Taskforce, December 2020, para. 6.

62 CMA135, A new pro-competition regime for digital markets: Advice of the Digital Markets Taskforce, December 2020, para. 13.

63 CMA135, A new pro-competition regime for digital markets: Advice of the Digital Markets Taskforce, December 2020, para. 13.

64 CP 489, Consultation on a new pro-competition regime for digital markets, published 20 July 2021, para. 170.

65 CMA press release, CMA launches probe into music streaming market, 27 January 2022.

66 HC 50, Economics of music streaming: Second Report of Session 2021–2022.

67 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.48.

68 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.49.

69 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, paras. 1.59 to 1.61.

70 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.56.

71 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, paras. 1.59 to 1.61 and 1.73 to 1.75.

72 TCA, Article 366(1).

73 SCB, Clause 2(1).

74 SCB, Clause 11.

75 Provided that the relevant conditions under Clause 20 (Restructuring) and Clause 21 (Restructuring deposit takers or insurance companies) of the SCB are met.

76 Provided that the relevant conditions under Clause 19 (Rescuing), Clause 22 (Restructuring deposit takers or insurance companies) or Clause 23 (Liquidity provision for deposit takers or insurance companies) of the SCB are met.

77 BEIS, Policy note on Subsidies and Schemes of Interest and Particular Interests, 25 January 2022.

78 EA02, Section 23(1)(a) and 24.

79 EA02, Section 23(1)(b) and 23(2)(b).

80 CMA, Mergers: Guidance on the CMA's jurisdiction and procedure, January 2021, para. 4.3(ii).

81 CMA, Mergers: Guidance on the CMA's jurisdiction and procedure, January 2021, para. 4.3(ii).

82 Enterprise Act 2002, Section 42.

83 EA02, Section 58(2A). Media plurality is defined as 'the need for, to the extent that is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom'. Sections 58(2B) and 58(2C)(a) of the Act.

84 EA02, Sections 58(2C)(b)–(c).

85 This public interest ground reflects the need to maintain the stability of the UK financial system. To date, this public interest grounds has only been used once in relation to the merger between Lloyds TSB plc and HBOS in 2008. EA02, Section 58(2D).

86 These public interest grounds were added in June 2020 in response to growing concerns around the coronavrus pandemic. EA02, Section 58(2e).

87 EA02, Section 42.

88 ibid.

89 EA02, Sections 42(7), 42(8)(b) and 124(7).

90 CMA, Final Report: Facebook, Inc (now Meta Platforms, Inc)/Giphy, Inc, para. 20.

91 Case 1429/12/21 Meta Platforms, Inc v. Competition and Markets Authority.

92 CMA, Final report: JD Sports Fashion plc/Footasylum plc, 6 May 2020.

93 JD Sports Fashion plc v. Competition and Markets Authority [2020] CAT 24.

94 JD Sports Fashion plc v. Competition and Markets Authority [2020] CAT 24, para. 248.

95 CMA press release, CMA looks to appeal CAT judgment in JD Sports case, 1 December 2020.

96 JD Sports Fashion plc v. Competition and Markets Authority [2020] CAT 27.

97 CMA137, CMA Annual Plan 2021/22, March 2021, para. 2.41.

98 Comments made at the ICN Spotlight Coscelli/Mundt – Leading your agency through change, virtual event, 2 February 2021.

99 CMA press release, CMA hosts first two-day digital summit of G7 competition heads, 29 November 2021.

100 CMA129, Merger Assessment Guidelines, 18 March 2021.

101 CMA129, Merger Assessment Guidelines, 18 March 2021, para. 2.4 to 2.5.

102 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022.

103 CMA56revised, Guidance on the CMA's mergers intelligence function, December 2020.

104 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, para. 4.59.

105 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, para 4.59(c).

106 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, Section 7.

107 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, Section 7, para. 7.11.

108 CMA129, Merger Assessment Guidelines, 18 March 2021, para. 9.2.

109 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, Section 7, para. 7.19.

110 CMA2revised, Mergers: Guidance on the CMA's jurisdiction and procedure, amended on 4 January 2022, Section 7, para. 7.21.

111 Facebook Inc and Facebook UK Limited v. Competition and Markets Authority [2020] CAT 23.

112 CMA News, CMA welcomes Tribunal judgment in Facebook and Giphy case, 13 November 2020.

113 Ion Investment Group Limited/Broadway Technology Holdings LLC.

114 NSIA, Section 41.

115 BEIS, NSI Impact Assessment, 9 November 2020, Table 1.

116 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.90.

117 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.98.

118 CP488, Consultation: Reforming Competition and Consumer Policy, July 2021, para. 1.105.

119 Andrea Coscelli is the chief executive officer of the CMA at the time of writing. However, Coscelli plans to step down from the role at the end of his current term, in July 2022.

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