2. Overview of EU and UK competition law

Richard Whish; David Bailey

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Competition Law (10th edn)

Richard Whish and David Bailey

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p. 492. Overview of EU and UK competition law

Richard WhishRichard WhishEmeritus Professor of Law at King’s College London
and David BaileyDavid BaileyProfessor of Practice in Competition Law at King’s College London

https://doi.org/10.1093/he/9780198836322.003.0002
Published in print: 26 August 2021
Published online: September 2021

Abstract

This chapter provides a brief overview of EU and UK competition law and the institutions involved in formulating, interpreting and applying competition law in those jurisdictions. It also explains the relationship between EU competition law and the domestic competition laws of the Member States, in particular in the light of Article 3 of Regulation 1/2003. The rules of the European Economic Area are briefly referred to, and the trend on the part of Member States to adopt domestic competition rules modelled on those in the EU is also noted. Three diagrams at the end of the chapter explain the institutional structure of EU and UK competition law.

Introduction

EU Law

UK Law

The Relationship Between EU Competition Law and National Competition Laws

The Institutional Structure of EU and UK Competition Law

1. Introduction

This chapter will provide a brief overview of EU and UK competition law and the relevant institutions; it will also explain the relationship between EU competition law and the domestic competition laws of the Member States, in particular in the light of Article 3 of Regulation 1/2003¹. The rules of the European Economic Area (‘the EEA’) are briefly referred to, and the trend on the part of Member States to adopt domestic competition rules modelled on those in the EU is noted. Three diagrams at the end of the chapter explain the institutional structure of EU and UK competition law.

2. EU Law

(A) The EU Treaties

The European Union is established by two Treaties: the Treaty on European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’)². There are currently 27 Member States of the EU³. The EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights⁴. The EU aims to promote peace, its values and the well-being of its peoples⁵.

Under the Treaties the Member States confer ‘competences’ on the EU so that it can fulfil its objectives, one of which is a highly competitive social market economy⁶. Much of EU law is concerned with the elimination of obstacles to the free movement of goods, p. 50↵services, persons and capital; the removal of these obstacles promotes competition within the Union⁷. EU law is supra-national and has primacy over the national law of the Member States⁸. Initiatives such as the establishment of a public procurement regime⁹, the creation of the euro¹⁰, the ‘European Green Deal’¹¹ and ‘Shaping Europe’s Digital Future’¹² all contribute to greater, more sustainable competition within the EU. In addition to this ‘macro’ effect on competition the TFEU contains specific competition rules that apply to undertakings and to the Member States themselves.

(i) The competition chapter in the TFEU

EU competition law is contained in Chapter 1 of Title VII of Part Three of the TFEU and consists of:

●

Article 101(1), which prohibits agreements, decisions by associations of undertakings and concerted practices that have as their object or effect the restriction of competition¹³, although this prohibition may be declared inapplicable where the conditions in Article 101(3) are satisfied¹⁴

●

Article 102, which prohibits the abuse by an undertaking or undertakings of a dominant position¹⁵

●

Article 106(1), which imposes obligations on Member States in relation to the Treaty generally and the competition rules specifically, while Article 106(2) concerns the application of the competition rules to public undertakings and private undertakings to which a Member State entrusts particular responsibilities¹⁶

●

Articles 107 to 109, which prohibit state aid to undertakings by Member States that might distort competition in the internal market¹⁷.

An important additional instrument of EU competition law is the EU Merger Regulation (‘the EUMR’), which applies to concentrations between undertakings that have an EU dimension¹⁸.

Articles 101 to 109 TFEU are drafted in broad terms and lack detail. For example, expressions such as ‘concerted practice’ and ‘restriction of competition’ in Article 101 and ‘abuse’ in Article 102, are not defined; it has been left to the EU Courts through case-law to give meaning to these Treaty provisions¹⁹. It is necessary to read the wording of these p. 51↵provisions in conjunction with the objectives and principles laid down in the Treaties. Article 3(3) TEU states that the EU is to establish an internal market, which, in accordance with Protocol 27 on the internal market and competition annexed to the Treaties, is to include a system ensuring that competition is not distorted. The Protocol has the same force as a Treaty provision²⁰. The Lisbon Treaty repealed Article 3(1)(g) of the EC Treaty that established as one of the activities of the European Community the achievement of a system of undistorted competition. In TeliaSonera²¹ the Court of Justice referred to Article 3(3) TEU and Protocol 27 as though there was no difference from Article 3(1)(g) EC²². In Timab v Commission²³ the General Court held that Article 3 TEU, read in conjunction with Protocol 27, has changed neither the purpose of Article 101 TFEU nor the rules for the imposition of fines.

Article 3(1)(b) TFEU provides that the EU shall have exclusive competence in establishing the competition rules necessary for the functioning of the internal market. Article 119(1) TFEU provides that the activities of the Member States and the EU shall be conducted in accordance with the principle of an open market economy with free competition. Undistorted competition is, therefore, embedded as a fundamental principle of EU law.

These references to competition in the TEU and the TFEU have a significant effect on the decisions of the European Commission and judgments of the General Court and the Court of Justice (together, ‘the EU Courts’), which have often interpreted the specific competition rules teleologically from the starting point of what are now Article 3(3) TEU and Protocol 27. The EU Courts have produced some notable judgments by interpreting the law teleologically²⁴, such as the judgment of the Court of Justice in Continental Can v Commission²⁵, which established that mergers could in some circumstances be prohibited under Article 102 TFEU.

(ii) The single market imperative

Competition law and policy in the context of the EU fulfils an important function of facilitating and defending the single market, sometimes referred to as the ‘single market imperative’. The idea of the single market is that internal barriers to trade within the EU should be dismantled and that goods, services, workers and capital should have complete freedom of movement. Firms should be able to outgrow their national markets and operate on a more efficient, transnational scale throughout the EU. The Commission acts as guardian of the single market and has proposed a ‘Single Market Programme’ for 2021–2027 which would improve the functioning of the internal market in an increasingly global and digital world²⁶.

The current Commissioner for Competition Policy, Executive Vice-President Margrethe Vestager, has said:

The founding fathers of Europe understood that there would be no genuine integration without a Single Market—and no functioning Single Market without a strong competition policy enforced by a central competition authority²⁷.

p. 52↵The Commission frequently takes action in defence of the single market against agreements or practices that attempt to maintain the isolation of one domestic market of a Member State from another: national cartels, geographical market-sharing agreements and export bans in distribution agreements have often been seriously punished. The Commission has been particularly active in recent years in the enforcement of Article 101 against distribution agreements that prevented distributors from selling products online outside their contractual territories within the EU²⁸. In January 2021 the Commission condemned ‘geo-blocking’ practices of Valve and five PC video game publishers which confined consumers to downloading or streaming video games available in their own country and denied them the benefits of the digital single market; fines of €7.8 million were imposed²⁹. The Commission is also vigilant to punish abuses of dominance that harm the single market, as it did by fining AB InBev €200 million for hindering cheaper imports of its beer from the Netherlands into Belgium³⁰.

(iii) Economic and monetary union

The creation of the euro had an important influence on competition within the EU³¹. As explained in chapter 1, the competitive process depends, among other things, on consumers having adequate information to enable them to make rational choices³². Price comparisons are difficult when the same goods and services are sold in different, variable currencies; the problem is compounded by the cost of exchanging money. The euro brings a transparency to price information that fundamentally transforms the position, and has a considerable impact on the way in which business is conducted. The aim of the ‘Single Euro Payments Area’ is to harmonise the payments market across the EEA by using common procedures and standards for payments in euros³³; this makes cross-border electronic payments in euros as straightforward as domestic payments.

(iv) The modernisation of EU competition law

In the first half of the 1990s there was a growing realisation, including within the European Commission itself, that there was something unsatisfactory with the way in which the competition rules were applied in practice. An obvious problem was that Article 101, on restrictive agreements, and Article 102, on the abuse of dominance, were enforced with insufficient attention to economic principles. There followed the reform of the regime on vertical restraints, which involved a major repositioning of the law and economics of the subject and which appears to have worked well in practice³⁴. Similar reforms were effected in relation to horizontal cooperation agreements³⁵ and technology transfer agreements³⁶. The Commission also introduced significant changes into the substantive test and procedures for mergers having an EU dimension³⁷. Another policy initiative was the adoption p. 53↵of the Commission’s enforcement priorities in relation to the exclusionary conduct of dominant firms³⁸. Overarching everything was the adoption of Regulation 1/2003, which abolished the Commission’s ‘monopoly’ over decision-making under Article 101(3) and requires firms to make their own assessment of the compatibility of their conduct with EU law³⁹. That Regulation also gave powers to the competition authorities of the Member States to enforce Articles 101 and 102, a major change in the ‘architecture’ of EU competition law.

It seems that a significant further modernisation of the EU competition rules is now taking place. Governments worldwide face challenges of a seriousness rarely experienced other than in times of war. These include, among others, problems resulting from the economic crisis of the late 2000s, rapid changes in technology and the digitisation of markets, the stresses caused by globalisation, climate change and environmental degradation and the calamity of coronavirus. Competition authorities are themselves having to interrogate their competition laws and policies to meet these challenges. DG COMP has launched numerous initiatives that will evolve over the next few years, during the second term of Executive Vice-President Margrethe Vestager as Competition Commissioner. In June 2020 the Commission launched a consultation on the possibility of introducing a ‘New Competition Tool’ to address structural competition problems in markets that are not addressed by the existing competition rules; the Commission’s proposals for new rules for digital platforms announced on 15 December 2020 did not take this initiative forward⁴⁰. The frameworks for analysing horizontal⁴¹ and vertical⁴² agreements, and their associated block exemptions, are under review. The Notice on Market Definition, adopted in 1997, is in need of modernisation⁴³. A sectoral investigation of ‘The Internet of Things’ has been launched⁴⁴. These, and other, initiatives will be noted at appropriate points in this book.

(v) The coronavirus crisis

The coronavirus crisis of 2020 presented monumental challenges. The European Commission coordinated the EU’s response to the pandemic, which included support for the healthcare systems of Member States and a recovery package of €1,824.3 billion to help Member States to rebuild after the pandemic⁴⁵. The Commission and the national competition authorities of the Member States published a joint statement on the application of the antitrust rules during the current crisis⁴⁶. In April 2020 the Commission issued a ‘comfort letter’ to Medicines for Europe in relation to coordination in the pharmaceutical industry to increase production and improve supply of critical hospital medicines to treat COVID-19 patients⁴⁷; this was the first time the Commission had sent a comfort letter since Regulation 1/2003 entered into force in 2004. Derogations from the application of the competition rules were also granted for certain agricultural products⁴⁸.

(B)p. 54 Institutions

(i) Council of the European Union

The supreme legislative body of the European Union is the Council of the European Union, often referred to as the EU Council⁴⁹. The Council represents the Member States’ governments and negotiates and adopts EU laws and policies, often in conjunction with the European Parliament. The Council is not involved in competition policy on a regular basis. However, acting under powers conferred by Articles 103 and 352 TFEU, the Council has adopted several major pieces of legislation, including the EUMR⁵⁰ and, with the European Parliament, the EU Damages Directive⁵¹ and the ECN+ Directive⁵²; it has delegated important powers to the Commission through regulations to enforce the competition rules in the TFEU, in particular Regulation 1/2003⁵³; and it has given the Commission power to grant block exemptions in respect of certain agreements caught by Article 101(1) but which satisfy the criteria of Article 101(3)⁵⁴.

(ii) European Commission

The European Commission is required to promote the general interest of the EU and to ensure the application of the Treaties⁵⁵. The Commission consists of a College of 27 Commissioners, one for each Member State⁵⁶. The College of Commissioners is responsible for the strategic direction of the Commission and adopts most formal decisions of the Commission. The Commission has a central role in EU competition law and policy⁵⁷ and is responsible for fact-finding, taking action against infringements of Articles 101 and 102, imposing financial penalties, adopting block exemption regulations, conducting sectoral inquiries, investigating mergers and state aids and developing policy and legislative initiatives. The Commission is also active in the international arena, participating in the work of the OECD and the ICN and cooperating with competition authorities around the world⁵⁸. One of the Commissioners is responsible for competition matters; this is regarded as one of the most important portfolios within the Commission, and confers upon the incumbent a high public profile. Certain decisions can be taken by the Commissioner for Competition rather than by the College of Commissioners. There are two Hearing Officers⁵⁹, directly responsible to the Commissioner, who are responsible for safeguarding the exercise of procedural rights during Commission proceedings enforcing EU competition law⁶⁰.

The Commission is organised into departments, known as Directorates General or ‘DGs’, which are responsible for different EU policies. DG COMP is the Directorate of the Commission specifically responsible for competition policy. DG COMP’s website is an invaluable source of material. From the index page it is possible to navigate to a series of policy areas, including antitrust (that is to say Articles 101 and 102, though there is a specific area for cartels), mergers and state aid⁶¹. Within each policy area there is a ‘Latest p. 55↵news’ section, a section on the Commission’s handling of the coronavirus crisis, relevant legislation and details of current and decided cases; there is also useful statistical and practical information. The website leads to information about specific sectors such as agriculture and food, consumer goods, energy and the environment, financial services, information and communication technologies, the media, motor vehicles, pharmaceuticals, postal services, professional services, sports, telecommunications and transport. There is a ‘Competition and you’ section which seeks to create an awareness and interest in consumers in competition policy⁶². The website includes reports that have been commissioned by DG COMP, such as Competition Policy for the Digital Era, which discusses how competition law and policy might evolve in the digital age, and Ex Post Economic Evaluation of Competition Policy: The EU Experience, which evaluates whether the outcomes of Commission decisions matched what was hoped for⁶³. The website also has a page on the ‘Anonymous Whistleblower Tool’, which allows people to report cartels and other anti-competitive practices to the Commission anonymously⁶⁴.

There is information about the Commissioner for Competition Policy, the composition of DG COMP and the European Competition Network (‘the ECN’), which consists of the Commission and the national competition authorities of the Member States (‘the NCAs’), who are jointly responsible for the enforcement of Articles 101 and 102⁶⁵. The ECN’s website contains information on its work and that of its members⁶⁶. Press releases about competition matters can be accessed through the website and on Twitter; speeches of the Commissioner and officials of DG COMP, policy documents, the Competition Policy Briefs, the Competition Merger Briefs and the Competition State Aid Briefs are also available on DG COMP’s website. It is easy to follow the progress of public consultations through the website⁶⁷, and forthcoming Commission events of relevance to competition policy are announced there.

DG COMP publishes an Annual Management Plan in which it sets out its key objectives for the year ahead: the most recent one was published in November 2020⁶⁸. The Commission’s Annual Report on Competition Policy provides essential information on matters of both policy and enforcement, as well as a statistical review of DG COMP’s activities⁶⁹. DG COMP’s website also has links to other important sites, including those of the NCAs⁷⁰.

DG COMP has a Director General and three Deputy Directors General. There is also a Chief Competition Economist who reports directly to the Director General⁷¹. DG COMP is divided into nine units⁷². Directorate A is responsible for policy and strategy, including case support and policy for antitrust, merger and state aid matters, the ECN, international relations, private enforcement, consumer liaison and a Task Force on third-country subsidies⁷³. Directorates B to F are the operational units, each with responsibility for particular sectors, which conduct cases under Articles 101 and 102 and the EUMR, other p. 56↵than cartel cases, from start to finish; they also deal with state aid cases. Directorate G is exclusively concerned with cartels, the detection, punishment and deterrence of which is a priority of the Commission⁷⁴. Directorate H is responsible for general scrutiny and enforcement in relation to state aid. Directorate R is responsible for ‘horizontal management’, which includes the registry, finance and information technology. Formal decisions of the Commission must be vetted by the Legal Service of the Commission, with which DG COMP works closely. The Legal Service represents the Commission in proceedings before the EU Courts⁷⁵.

The Commission has issued guidance on the implications of Brexit for competition law enforcement⁷⁶.

(iii) General Court

The General Court came into being in September 1989⁷⁷ in order to improve the judicial protection of individual interests and to maintain the quality and effectiveness of judicial review in the EU legal order⁷⁸. The General Court consists of two judges from each Member State; their term of office is six years, and is renewable. Among the General Court’s tasks is the determination of appeals against Commission decisions in competition matters under Articles 101 and 102, under the state aid provisions and under the EUMR⁷⁹. The General Court reviews the legality of decisions according to the provisions of the Treaties⁸⁰. The Court of Justice has said that the General Court must review both the law and the facts in the light of the pleas raised by applicants, and the General Court has the power to assess the evidence, to annul a decision and to alter the amount of any fine that has been imposed⁸¹.

The website of the General Court (and of the Court of Justice) is an invaluable source of material where, for example, judgments of the Courts, opinions of the Advocates General and information about pending cases can be found along with statistics on judicial activity and an Annual Report on the work of the EU Courts⁸².

(iv) Court of Justice

The Court of Justice hears appeals from the General Court on points of law only⁸³. The Court of Justice has been strict about what is meant by an appeal on a point of law, and it will not get drawn into factual disputes unless there has been a clear distortion of the evidence⁸⁴. The Court also delivers ‘preliminary rulings’ on points of EU law that are p. 57↵referred to it by national courts or tribunals under Article 267 TFEU⁸⁵. The Court of Justice is assisted by an Advocate General, drawn from a panel of 11⁸⁶, who delivers an opinion on each case that comes before it, unless the Court decides that there is no new point of law. While not binding, the Advocate General’s opinion is frequently, though not always, followed by the Court of Justice. Anyone interested in competition law is strongly recommended to read the opinions of the Advocates General in competition cases, which are frequently of very high quality and contain a large amount of invaluable research material.

(v) Advisory Committee on Restrictive Practices and Dominant Positions

The Advisory Committee on Restrictive Practices and Dominant Positions consists of officials from the NCAs⁸⁷. They attend oral hearings, consider draft decisions of the Commission and comment on them⁸⁸; they also discuss draft legislation and the development of policy generally.

(vi) Advisory Committee on Concentrations

The Advisory Committee on Concentrations consists of officials from the NCAs; they attend oral hearings and must be consulted on draft decisions of the Commission under the EUMR⁸⁹.

(vii) National competition authorities

NCAs are obliged by Article 3(1) of Regulation 1/2003 to apply Articles 101 and 102 TFEU when agreements or conduct affect trade between Member States⁹⁰. NCAs work with the Commission within the ECN to allocate cases, exchange information and develop best practices⁹¹. Statistics are available on DG COMP’s website of competition law enforcement; for example, in 2019 the ECN was informed of 138 new investigations, of which 19 were Commission cases and 119 were being conducted by NCAs. The ECN+ Directive requires Member States to provide adequate resources and minimum enforcement and fining powers for NCAs in order to make them more effective enforcers⁹².

(viii) National courts

National courts have ‘an essential part to play’ in applying the competition rules⁹³. Articles 101 and 102 are directly applicable and produce direct effects: they give rise to rights and obligations on the part of individuals and national courts have a duty to safeguard them. The EU Damages Directive⁹⁴ sets out certain rules governing actions for damages for infringements of EU and national competition law⁹⁵.

p. 58↵The Commission’s website has a searchable database of some of the judgments given by national courts on the application of Articles 101 and 102, in the original language, arranged in a chronological order⁹⁶. An Association of European Competition Law Judges periodically brings together members of the judiciary of the Member States⁹⁷.

(ix) European Parliament

The European Parliament—in particular its Standing Committee on Economic and Monetary Matters—and the Economic and Social Committee (‘ECOSOC’) are consulted on matters of competition policy and may be influential, for example, in the legislative process⁹⁸ or in persuading the Commission to take action in relation to a particular issue.

(C) European Economic Area

On 21 October 1991 what is now the EU and its Member States, and the Member States of the European Free Trade Association (‘EFTA’), signed an Agreement to establish the European Economic Area⁹⁹; it consists of the Member States of the EU, Norway, Iceland and Liechtenstein. The referendum in Switzerland on joining the EEA led to a ‘no’ vote, so that that signatory country remains outside. The EEA Agreement entered into force in 1994. Article 1 provides that it aims to promote a continuous and balanced strengthening of trade and economic relations between the contracting parties with a view to creating a homogeneous EEA. The EEA Agreement includes rules on competition that follow closely the TFEU and the EUMR. Article 101 on anti-competitive agreements appears as Article 53 of the EEA Agreement; Article 102 on the abuse of a dominant position is mirrored in Article 54; the EUMR is reflected in Article 57; and Article 106 on public undertakings and Article 107 on state aids appear as Articles 59 and 61 of the EEA Agreement respectively. Most of the competition legislation enacted by the EU has been adopted by the EEA¹⁰⁰.

The EEA Agreement and its associated texts establish a ‘twin pillar’ approach to jurisdiction: there are two authorities responsible for competition policy, the European Commission and the EFTA Surveillance Authority (‘the ESA’)¹⁰¹, but any particular case will be investigated by only one of them. Article 108 of the EEA Agreement established the ESA; it mirrors the European Commission and is vested with similar powers. The ESA is subject to review by the EFTA Court of Justice¹⁰²; the EFTA Court also delivers non-binding ‘advisory opinions’ on points of EEA law¹⁰³. Article 55 of the EEA Agreement provides that the European Commission or the ESA shall ensure the application of Articles p. 59↵53 and 54; Article 56 of the Agreement deals with the attribution of jurisdiction between these two bodies in cases caught by these Articles¹⁰⁴; Article 57 provides for the division of competence in respect of mergers.

The EEA Agreement requires cooperation between the European Commission and the ESA, in order to develop and maintain uniform surveillance throughout the EEA and in order to promote a homogeneous implementation, application and interpretation of the provisions of the Agreement. Article 58 requires the authorities to cooperate, in accordance with specific provisions contained in Protocol 23 (dealing with restrictive practices and the abuse of market power) and Protocol 24 (dealing with mergers). Similarly, Article 106 of the EEA Agreement establishes a system for the exchange of information between the EFTA Court and the Court of Justice of the EU with a view to achieving a uniform interpretation of its terms.

(D) Modelling of domestic competition law on Articles 101 and 102

The Member States of the EU and the EEA have systems of competition law modelled upon Articles 101 and 102¹⁰⁵. The ECN has published a table showing the extent to which Member States have voluntarily aligned domestic laws with the provisions of Regulation 1/2003¹⁰⁶. An easy way of accessing the websites, and the national competition laws, of the NCAs is through a hyperlink provided by DG COMP¹⁰⁷.

It should be added that the EU competition rules have also influenced legislative developments in many non-EU countries in Europe; for example, the Stabilisation and Association Agreements with countries in the western Balkans contain competition provisions and form part of the accession process towards full membership of the EU¹⁰⁸. Separately, the ‘Union for the Mediterranean’ is an inter-governmental institution that brings together 43 countries on the Mediterranean coast from Algeria to Turkey and its Euro-Mediterranean Association Agreements contain provisions based on the EU competition rules¹⁰⁹.

3. UK Law

The promotion of competition is an important part of UK economic policy¹¹⁰. This commitment to competition has manifested itself in important changes in the competition law of the UK. The Competition Act 1998 and the Enterprise Act 2002 fundamentally changed both the substantive provisions and the institutional architecture of the domestic p. 60↵competition law of the UK; in the course of this reform a raft of old legislation¹¹¹ was swept away. Another key piece of legislation is the Enterprise and Regulatory Reform Act 2013 (‘the ERRA’), which created the Competition and Markets Authority (‘the CMA’) and abolished its predecessors, the Office of Fair Trading (‘the OFT’) and the Competition Commission (‘the CC’); their competition law functions were transferred to the CMA. Further changes were made to the private enforcement of domestic competition law by the Consumer Rights Act 2015¹¹².

On 31 January 2020 the UK withdrew from the EU, a consequence of which was that Articles 101 and 102 TFEU and the EUMR ceased to be directly applicable there with effect from 1 January 2021¹¹³.

(A) Competition Act 1998

The Competition Act 1998 received Royal Assent on 9 November 1998; the main provisions entered into force on 1 March 2000. The Act contains two prohibitions. The ‘Chapter I prohibition’ is modelled on Article 101(1) TFEU, and forbids agreements, decisions by associations of undertakings and concerted practices that have as their object or effect the restriction of competition¹¹⁴. The Chapter II prohibition in the Competition Act is modelled on Article 102 TFEU and forbids the abuse of a dominant position¹¹⁵. From 1 March 2000 to 31 December 2020 section 60 of the Competition Act required, so far as possible, domestic competition law should be applied consistently with the way that EU law would be applied to corresponding questions¹¹⁶. In practice section 60 worked well, and decision-makers in the UK were able to draw upon a body of jurisprudence developed in Luxembourg over 60 years. Section 60 was repealed as a result of Brexit with effect from 1 January 2021. It was replaced by section 60A, which provides that there should be no inconsistency with EU competition law prior to 31 December 2020 save where appropriate in the light of specified circumstances¹¹⁷. There is no obligation on UK authorities and courts to have regard to EU case-law that emerges after 1 January 2021.

The Competition Act gives the CMA wide powers to obtain information, to carry out on-the-spot investigations, to adopt decisions and to impose penalties for infringements of competition law¹¹⁸. In relation to certain sectors, such as electronic communications and energy, these powers of the CMA are shared concurrently with the relevant sectoral regulator, such as the Office of Communications and the Gas and Electricity Markets Authority.

(B) Enterprise Act 2002

The main provisions of the Enterprise Act 2002 entered into force on 20 June 2003. The Enterprise Act amended domestic competition law in a number of ways. First, the Act changed the institutional architecture of the domestic system, for example by creating p. 61↵the CAT and by reducing the powers of the Secretary of State to make decisions in competition cases¹¹⁹. Some of the institutional changes brought about by the Act, such as the creation of the OFT as a corporate entity, have been superseded by reforms introduced by the ERRA.

Secondly, the Act contained new provisions for the investigation of mergers and markets¹²⁰. Thirdly, the Enterprise Act supplemented and reinforced the Competition Act 1998 in various ways, in particular by introducing a criminal ‘cartel offence’ which, on indictment, can lead to the imprisonment of individuals for up to five years and/or a fine of an unlimited amount¹²¹; by providing for company director disqualification for up to 15 years for directors who knew or ought to have known of competition law infringements committed by their companies¹²²; and by facilitating actions for damages¹²³.

(C) Changes to domestic law as a result of Regulation 1/2003

The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004¹²⁴ effected further changes to competition law in the UK. In particular, the Amendment Regulations aligned domestic procedures with those in EU law, for example by abolishing the system of notification to the domestic competition authorities of agreements and/or conduct for guidance and/or a decision.

(D) Enterprise and Regulatory Reform Act 2013

The main competition provisions of the ERRA entered into force on 1 April 2014. The ERRA made further important alterations to the UK regime. First, it radically reformed the institutional architecture of the UK system: it abolished the OFT and the CC and created a new institution, the CMA. The CMA has a variety of functions under the Competition Act and the Enterprise Act, including those formerly exercised by the OFT and the CC. Secondly, the ERRA streamlined and strengthened the provisions on mergers and markets, in particular by formalising the system of market studies, by introducing new timescales for investigations and by enhancing the powers of the CMA to obtain information. Thirdly, the ERRA strengthened the concurrency regime. Lastly it amended the criminal cartel offence to make it easier to prosecute the offence and so increase its deterrent effect.

(E) Consumer Rights Act 2015

The competition provisions of the Consumer Rights Act 2015 entered into force on 1 October 2015. The Consumer Rights Act significantly amended the domestic system of private enforcement of competition law. First, it expanded the jurisdiction of the CAT so that it can hear both ‘standalone’ and ‘follow-on’ actions for damages: previously the CAT had jurisdiction only in follow-on cases¹²⁵. Secondly, it introduced a procedure for p. 62↵the CAT to allow a representative to bring collective proceedings on behalf of a defined class of claimants, either on an opt-in or an opt-out basis¹²⁶. Thirdly, it enabled the CAT to approve a collective settlement and the CMA or a sectoral regulator to approve voluntary redress schemes¹²⁷. Finally the Act provided power for the adoption of rules for a ‘fast-track procedure’ for claims made under section 47A of the Competition Act¹²⁸.

(F) Brexit

Following a referendum in June 2016, the UK left the EU on 31 January 2020, a phenomenon commonly referred to as ‘Brexit’. EU law continued to apply in the UK during a transition period from 1 February 2020 until 11.00 pm on 31 December 2020 (‘IP completion day’) in accordance with the provisions of the UK/EU Withdrawal Agreement¹²⁹ and the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal) Act 2020¹³⁰. The Competition (Amendment etc.) (EU Exit) Regulations 2019 (‘the Competition SI’)¹³¹ make a number of significant changes to UK law. First, they remove provisions empowering the CMA and concurrent regulators to investigate and enforce EU competition law¹³². Secondly, they amend the obligation to maintain consistency between EU jurisprudence and decisions adopted under domestic law; the duty is now subject to various limitations and, in particular, is limited to EU judgments and decisions made before 1 January 2021¹³³. Thirdly, they incorporate a number of EU block exemption regulations into UK law; however this will not automatically be so in the case of future block exemptions¹³⁴. Fourthly, decisions of the European Commission establishing that the conduct complained of was an infringement of EU competition law are no longer binding on the courts after IP completion day¹³⁵. Fifthly, EU state aid law will not be retained as part of domestic law after IP completion day; instead, the UK will follow World Trade Organisation rules on subsidies¹³⁶. A further consequence of Brexit is that one-stop merger control under the EU Merger Regulation ceased to apply from 1 January 2021; the CMA is now able to investigate mergers that are above the turnover thresholds in the EUMR¹³⁷. The CMA has published guidance on the implications of Brexit, most recently on 1 December 2020¹³⁸.

The EU, Euratom and the UK entered into a Trade and Cooperation Agreement on 29 December 2020¹³⁹. Title XI of the Agreement deals with a ‘level playing field for open and fair competition and sustainable development’¹⁴⁰. Chapter two of Title XI deals with competition policy, committing the parties to the maintenance of competition law and effective enforcement of it; provision is also made for cooperation in relation to developments of competition policy and enforcement activities.

p. 63↵Chapter three of Title XI deals with ‘subsidy control’ (as opposed to ‘state aid’). The provisions are complex, and as at 18 January 2021 it was not clear how they would be implemented in the UK. They require that the UK establish an independent authority to oversee the system and enable its courts or tribunals to review subsidy decisions. Provision must be made for the recovery of subsidies, and there will be an arbitration tribunal to decide on disputes between the parties. The Secretary of State set out plans for a new subsidy control system in the UK on 3 February 2021.

(G) Reform

In July 2019 the government published a review of Part 1 of the Competition Act as required by the ERRA¹⁴¹. It found that there had been progress in meeting the government’s aims of increasing, improving and speeding up decision-making. However, the government considered that further reforms may be necessary to ‘ensure that the end-to-end enforcement regime operates as effectively as possible to impose robust sanctions and achieve effective deterrence in a timely way’¹⁴². Among the main policy issues identified by the government in the course of its review were the need for higher penalties for non-compliance with Competition Act investigations and strengthening the powers to impose interim measures. As a separate matter, in September 2020 the Government asked John Penrose MP to prepare a report on UK competition policy to consider how the UK regime might be reformed in response to Brexit and the coronavirus crisis; his report was published on 16 February 2021¹⁴³. A Green Paper can be expected in due course¹⁴⁴.

In the meantime in March 2020 the government accepted the strategic recommendations of the Furman Review on competition in digital markets¹⁴⁵. A Digital Markets Taskforce, led by the CMA, was created to consider the design and implementation of a pro-competitive regulatory regime for digital platform markets¹⁴⁶; subsequently the government announced that it would establish a Digital Markets Unit within the CMA to take this workstream forward¹⁴⁷. On 8 December 2020 the CMA gave advice to the Government on the design and implementation of the future system¹⁴⁸.

(H) Institutions

A notable feature of UK competition law is the number of institutions involved¹⁴⁹. Competition law in the UK assigns roles to the Secretary of State, the Lord Chancellor, p. 64↵the CMA, the Serious Fraud Office (or, in Scotland, the Lord Advocate), the sectoral regulators, the CAT and the civil and criminal courts. The competition authorities are also subject to scrutiny by the National Audit Office¹⁵⁰, by the Parliamentary and Health Service Ombudsman and by parliamentary bodies, including the Treasury Committee, the Business, Energy and Industrial Strategy Committee and the Public Accounts Committee of the House of Commons.

(i) Secretary of State and the Department for Business, Energy and Industrial Strategy

The Secretary of State for Business, Energy and Industrial Strategy (‘BEIS’) has various functions under the Competition Act, the Enterprise Act and the ERRA. In the exercise of these functions he or she is assisted by the Parliamentary Under-Secretary of State for Small Business, Consumers and Labour Markets, whose portfolio includes competition law. Within BEIS there is a Consumer and Competition Directorate, which has a competition policy team¹⁵¹.

(a) Appointments

The Secretary of State for BEIS makes most of the senior appointments to the competition authorities, such as those of the Chairman, Chief Executive and other members of the CMA Board and the CMA Panel¹⁵²; the members of the CAT¹⁵³; the Registrar of the CAT¹⁵⁴; and the ‘appointed members’ of the Competition Service within the CAT¹⁵⁵. The Secretary of State can also designate bodies which represent consumers to make ‘super-complaints’ under section 11 of the Enterprise Act 2002¹⁵⁶.

(b) Amendment of legislation, the adoption of delegated legislation and the making or approval of guidance

The Secretary of State is given various powers to amend primary legislation, to adopt delegated legislation and to make or approve rules under the Competition Act, the Enterprise Act and the ERRA. For example, under the Competition Act the Secretary of State has power to amend (and has amended) Schedules 1 and 3¹⁵⁷; to adopt block exemptions from the Chapter I prohibition¹⁵⁸; to make provision for the determination of turnover for the purpose of setting the level of penalties¹⁵⁹; to approve the guidance of the CMA as to the appropriate amount of a penalty for infringements of the Chapter I and Chapter II prohibitions¹⁶⁰; to determine the criteria for conferring limited immunity on ‘small p. 65↵agreements’ and ‘conduct of minor significance’¹⁶¹; to make provision for the exclusion of vertical and land agreements from the Chapter I prohibition¹⁶²; to approve the procedural rules of the CMA¹⁶³; to make regulations on the concurrent application of the Competition Act by the CMA and the sectoral regulators¹⁶⁴; and to amend the list of appealable decisions in section 46 of the Act¹⁶⁵. The Secretary of State also has power under paragraph 7 of Schedule 3 to the Competition Act to order that the Chapter I and Chapter II prohibitions do not apply to particular agreements or conduct where there are ‘exceptional and compelling reasons of public policy’ for doing so; the Secretary of State exercised this power several times in 2020 in order to deal with possible market failure during the coronavirus crisis¹⁶⁶.

Under the Enterprise Act the Secretary of State has power to make rules or to amend primary legislation in relation to a variety of matters: these include the procedural rules of the CAT¹⁶⁷; the determination of turnover for the purpose of domestic merger control¹⁶⁸; the maximum penalties that the CMA can impose for procedural infringements¹⁶⁹; the payment of fees for merger investigations¹⁷⁰; for the alteration of the ‘share of supply’ test applicable to merger cases¹⁷¹; and for shortening the period within which Phase 2 merger inquiries should be completed¹⁷². The Act also enables the Secretary of State to extend the ‘super-complaint’ system to include sectoral regulators¹⁷³.

Under the ERRA the Secretary of State has power to amend the time limits for making merger references¹⁷⁴; to modify the time limits for making and completing market investigation references¹⁷⁵; to introduce time limits for investigations under the Competition Act¹⁷⁶; and to make a ‘sectoral regulator order’ removing the concurrent powers given to a regulator to enforce the Competition Act 1998 and/or to make a market investigation reference¹⁷⁷.

Under the European Union (Withdrawal) Act 2018 the Secretary of State has power to make regulations to correct deficiencies in domestic legislation arising from Brexit¹⁷⁸; the Competition SI was made under this provision¹⁷⁹.

(c)p. 66 Receipt of performance report

The Secretary of State receives an annual performance report from the CMA¹⁸⁰.

(d) Involvement in individual cases

The Secretary of State has little involvement in individual competition cases. The Enterprise Act confers upon the CMA the final decision-making role in relation to merger and market investigations¹⁸¹. The Secretary of State retains powers in relation to such investigations only in strictly limited circumstances¹⁸².

(ii) The Lord Chancellor

The Lord Chancellor is responsible for appointing the President of the CAT and the panel of Chairmen, pursuant to a recommendation from the Judicial Appointments Commission¹⁸³. He or she is also given power to make provision for civil courts in the UK to transfer to the CAT for its determination so much of any proceedings before the court as relates to any question relating to whether an infringement of the Chapter I and II prohibitions has been or is being committed¹⁸⁴. There is also provision to make rules for the receipt of cases by the civil courts that are transferred to them by the CAT¹⁸⁵.

(iii) The CMA

(a) Establishment of the CMA

The CMA is established by section 25 of the ERRA¹⁸⁶. The ERRA abolished the CMA’s predecessors, the OFT¹⁸⁷ and the CC¹⁸⁸; the competition law functions of those authorities were transferred to the CMA with effect from 1 April 2014¹⁸⁹. The CMA is a corporate body and a non-ministerial government department¹⁹⁰. The CMA has a statutory duty to promote competition, both within and outside the UK, for the benefit of consumers¹⁹¹. From time to time the government publishes a non-binding ‘strategic steer’ to the CMA, which is intended to support the CMA in achieving its objectives during each Parliament¹⁹².

(b) The CMA Board

The Board of the CMA consists of a (non-executive) Chairman and no fewer than four other members, appointed by the Secretary of State¹⁹³. The Secretary of State must also appoint a Chief Executive of the CMA, who may not be the same person as the Chairman or a member of the CMA Panel¹⁹⁴. On 18 January 2021 there were ten members of the Board, of whom four, including the Chief Executive, were executive members and six were non-executive (two of whom are CMA Panel members)¹⁹⁵. The CMA Board Rules of Procedure are available on its website, and minutes of its meetings will also be found p. 67↵there¹⁹⁶. The Board is responsible for the strategic direction, priorities, plans and performance of the CMA, including the adoption of the Annual Plan¹⁹⁷. It also makes the decision whether to publish a market study notice or make a market investigation reference¹⁹⁸; other operational decisions are delegated by the Board to the members of the Board, to the staff of the CMA and to Board committees and sub-committees¹⁹⁹.

Management of the CMA is taken forward through the Executive Committee and its sub-committee, the Operations Committee²⁰⁰. The Case and Policy Committee is responsible for ensuring that the CMA has appropriate policies and that case and project teams adhere to those policies²⁰¹. The EU Exit Committee is responsible for ensuring that the CMA is ready to fulfil its functions in a post-Brexit world²⁰².

(c) The CMA Panel

Members of the ‘CMA Panel’ may perform a variety of roles on behalf of the CMA. Some functions of the CMA must be performed by members of the CMA Panel: for example, all Phase 2 merger and market cases are decided by ‘groups’ of panel members²⁰³. CMA groups must act independently of the CMA Board²⁰⁴; they are also independent from Phase 1 decision-makers. Other functions may be performed by CMA Panel members; for example they may be appointed to be part of a ‘Case Decision Group’²⁰⁵, which decides cases under the Competition Act, or a ‘Case Management Panel’, which deals with criminal cartel cases. They may also carry out internal governance roles.

Members are appointed by the Secretary of State following an open competition, for a single period of up to eight years²⁰⁶. They are appointed for their diversity of background, individual experience and ability, not as representatives of particular organisations, interests or political parties. On 18 January 2021 there were 28 members of the CMA Panel²⁰⁷; there was a Chair of the CMA Panel²⁰⁸ and four Inquiry Chairs²⁰⁹. There is a Code of Conduct for CMA Panel members which sets out their responsibilities, independence and confidentiality obligations²¹⁰. There are rules of procedure for groups of panel members conducting mergers and markets inquiries²¹¹.

(d) The staff of the CMA

The Chief Executive of the CMA is responsible for the day-to-day running of the organisation. There are three further Executive Directors who sit on the Board of the CMA. There is a Procedural Officer responsible for reviewing decisions by the case team on certain procedural matters, chairing the oral hearing in Competition Act cases and reporting on p. 68↵the fairness of that hearing to the decision-makers²¹². The Legal Service, which is overseen by the General Counsel of the CMA, ensures that decision-makers are aware of significant legal risks before taking a decision²¹³. The office of the Chief Economic Adviser plays an important part in cases where in-depth economic analysis is called for²¹⁴. The General Counsel and Chief Economic Adviser attend Board meetings. The CMA is divided into three Directorates: Enforcement, Markets and Mergers and Corporate Services; each Directorate is headed by an Executive Director. There are specific enforcement teams for cartel and criminal investigations²¹⁵. The CMA also has a Data, Technology and Analytics unit, which supports the CMA with technical understanding of working with data and using algorithms²¹⁶. The total number of permanent staff of the CMA at 31 March 2020 was 791, including staff from a variety of professions, including policy, law, economics and data science²¹⁷. The CMA has offices in London and Edinburgh²¹⁸.

(e) The CMA’s strategy

The CMA’s Vision, values and strategy²¹⁹ says that its ‘mission’ is ‘to make markets work well in the interests of consumers, businesses and the economy’. The CMA has five strategic goals: to deliver effective enforcement, extend competition frontiers, refocus consumer protection, develop integrated performance and achieve professional excellence²²⁰. The CMA is required, following a public consultation, to publish an Annual Plan containing a statement of its main objectives and priorities for the year; both the Annual Plan and the consultation document must be laid before Parliament²²¹. On 23 March 2021 the CMA published its Annual Plan for 2021/22²²². In 2014 the CMA published its Strategic Assessment²²³, intended to help the CMA to identify markets or issues, such as the digital economy and regulated sectors²²⁴, that may become a strategic priority for the CMA. One such priority is the digital economy. In 2019 the CMA adopted a Digital Markets Strategy²²⁵ which sets out the CMA’s approach to enforcement of consumer and competition law in digital markets; this led to its market study on online platforms and digital advertising²²⁶.

(f) Performance framework

The CMA has agreed with the government a performance management framework²²⁷. This framework provides a degree of external accountability, so that the CMA can demonstrate that it provides value for money to the taxpayers that pay for it, and improves p. 69↵internal management, so that the CMA prioritises its work properly. The CMA has agreed to a performance target of delivering direct financial benefits to consumers worth more than at least ten times its relevant costs to the taxpayer (measured over a rolling three-year period)²²⁸.

The CMA has estimated that the direct financial benefit to consumers arising from its enforcement of competition and consumer law in the period from 2017 to 2020 was £4 billion²²⁹; this ratio—of 14.6:1—exceeded the performance target of 10:1.

(g) Annual Reports on performance and concurrency

The CMA must make an Annual Report on its activities and performance to the Secretary of State, containing an assessment of the extent to which the objectives and priorities set out in its Annual Plan have been met and a summary of significant decisions, investigations and other activities in the year²³⁰. The report must be laid before Parliament and published²³¹.

The CMA is also required to report annually on the use of concurrent powers in the regulated sectors²³². This Concurrency Report must include information about the activities of the CMA and the sectoral regulators in relation to the exercise of concurrent powers under the Competition Act and the Enterprise Act²³³.

(h) Functions of the CMA

The CMA plays a central role, and has a variety of functions, in relation to competition law and policy in the UK. The CMA’s Prioritisation Principles²³⁴ are used to decide which discretionary projects (for example market studies and market investigations) and cases the CMA will take on across its areas of responsibility. The general functions, as opposed to the enforcement functions, of the CMA include obtaining, compiling and keeping under review information relating to the exercise of its functions; making the public aware of ways in which competition may benefit consumers and the economy; providing information and advice to Ministers²³⁵; and making written recommendations to Ministers about the effect of proposed legislation on competition²³⁶. In February 2020 the Chancellor of the Exchequer and the Secretary of State for BEIS asked the CMA to report annually on the ‘state of competition’ in the UK: the CMA’s first report was published on 30 November 2020²³⁷. The CMA reported that it appeared that the level of competition in the UK economy has declined in the past two decades and identified a number of work streams for the future to facilitate a better understanding of this complex issue.

As far as public enforcement is concerned the CMA has considerable powers under the Competition Act 1998²³⁸. It plays the principal role in enforcing the Chapter I and Chapter II prohibitions, and has significant powers to obtain information, enter premises to conduct investigations, adopt interim measures and make final decisions and impose penalties²³⁹. Many of the decisions of the CMA under the Competition Act 1998 can be p. 70↵appealed on the merits to the CAT²⁴⁰. CMA decisions that cannot be appealed to the CAT may, nevertheless, be subject to judicial review by the Administrative Court. Separately, the CMA may bring criminal prosecutions of the ‘cartel offence’ under the Enterprise Act 2002²⁴¹; in practice the CMA cooperates with the Serious Fraud Office in criminal cases²⁴².

The CMA also conducts market studies, market investigations and merger inquiries under the Enterprise Act 2002²⁴³. Decisions under the Enterprise Act 2002 in relation to mergers and market investigations are subject to judicial review by the CAT²⁴⁴. The CMA has a duty to keep under review undertakings given as a result of investigations conducted under the monopoly and merger provisions of the now repealed Fair Trading Act 1973²⁴⁵. Separately, the CMA can be asked to conduct ‘efficiency audits’ of public sector bodies under the Competition Act 1980: this provision has not been used for many years²⁴⁶.

The CMA has specific responsibilities in relation to competition as a result of provisions in the following legislation:

●

the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

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the Financial Services and Markets Act 2000²⁴⁷

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the Transport Act 2000

●

the Transport (Scotland) Act 2001²⁴⁸

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the Legal Services Act 2007

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the Legal Services (Scotland) Act 2010

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the Groceries Code Adjudicator Act 2013

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the Financial Services (Banking Reform) Act 2013

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the Small Business, Enterprise and Employment Act 2015

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the Consumer Rights Act 2015 and

●

the Scotland Act 2016.

The United Kingdom Internal Market Act 2020 entered into force on 31 December 2020. It imposes a new function on the CMA in relation to the internal market for goods and services within the UK²⁴⁹. The CMA also has various regulatory functions in relation to utility companies²⁵⁰. The Regulatory Enforcement and Sanctions Act 2008 provides for p. 71↵the reduction and removal of regulatory burdens and requires the CMA to keep its regulatory functions under review.

It is important to appreciate that the CMA is not only a competition authority, but also has consumer protection responsibilities under the following legislation²⁵¹:

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the Consumer Protection (Distance Selling) Regulations 2000²⁵²

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Part 8 of the Enterprise Act 2002

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the Consumer Protection from Unfair Trading Regulations 2008²⁵³

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the Consumer Rights (Payment Surcharges) Regulations 2012²⁵⁴

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the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013²⁵⁵

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Schedule 3 to the Consumer Rights Act 2015.

The CMA has published guidance on how it uses its consumer protection powers, which are an important complement to its tools under competition law²⁵⁶. The CMA has stated that its strategic priorities for 2020/21 include the protection of consumers, in particular those in vulnerable circumstances, and addressing concerns in digital markets²⁵⁷. The CMA has estimated that its consumer work generated direct financial benefits to consumers of £70 million on average per year in the years from 2017 to 2020²⁵⁸.

The CMA also has a role in international competition policy: its statutory duty is to seek to ‘promote competition, both within and outside the UK, for the benefit of consumers’ (emphasis added)²⁵⁹. To that end, the CMA attends meetings on competition policy on behalf of the UK at the Organisation for Economic Co-operation and Development and the United Nations Conference on Trade and Development; it is also an active participant in the International Competition Network²⁶⁰.

A significant amount of the CMA’s energy goes into raising awareness of competition law on the part of lawyers, small and medium-sized businesses and local authorities; it may do this by sending warning and advisory letters²⁶¹ or by asking local lawyers to share the CMA’s competition law compliance materials with their clients²⁶². In February 2020 the CMA launched its ‘Cheating or Competing?’ campaign²⁶³, which reached around 29 million people across the UK and was broadcast on 47 national radio stations²⁶⁴.

p. 72↵In response to the coronavirus crisis the CMA established a COVID-19 Taskforce to monitor and respond to consumer and competition problems arising from the pandemic²⁶⁵. Separately, a Digital Markets Unit will be established within the CMA in April 2021 to take forward the work of establishing a pro-competition regime for digital markets; the CMA advised the Government on 8 December 2020 on the design and implementation of this regime²⁶⁶.

(i) Rules

Section 51 of and Schedule 9 to the Competition Act 1998 make provision for the adoption of procedural rules by the CMA, which require the approval of the Secretary of State²⁶⁷; the Competition Act 1998 (Competition and Markets Authority’s Rules) Order was adopted under this provision²⁶⁸.

(j) Publications, information, guidance etc

The CMA is required by sections 6 and 7 of the Enterprise Act 2002 to provide information to the public and to Ministers²⁶⁹. The CMA has published a statement setting out its approach to the transparency of its work and how it deals with requests for information under the Freedom of Information Act 2000²⁷⁰. The Competition Act requires the CMA to publish general advice and information as to how it will apply the law in practice²⁷¹. The CMA Board has adopted a number of guidelines that had been published by the OFT and by the CC²⁷²; the CMA has also published some guidelines of its own. The CMA’s website provides information on UK competition law and policy and includes, among other things, details of current and decided cases under the Competition and Enterprise Acts²⁷³, the guidelines on these Acts, Press Releases, the Annual Plan and the Annual Report of the CMA, consultations and speeches²⁷⁴. The National Archives’ website contains a wide variety of information, for example on cases decided before the CMA was created²⁷⁵.

(iv) Serious Fraud Office

Section 188 of the Enterprise Act 2002 establishes the criminal cartel offence for individuals responsible for ‘hard-core’ cartels²⁷⁶. Serious penalties—of up to five years in prison—can be imposed upon those found guilty of this offence. Prosecutions may be brought by or with the consent of the CMA²⁷⁷, or by the Serious Fraud Office²⁷⁸, working in close liaison with the CMA²⁷⁹. In Scotland the prosecution of the criminal offence is the responsibility of the Lord Advocate²⁸⁰.

(v)p. 73 Sectoral regulators

Various sectors in the UK are subject to specific regulatory control, in particular utilities such as telecommunications and water. Several of the sector-specific regulators share concurrent powers with the CMA to enforce the Chapter I and II prohibitions; they are also able to receive super-complaints²⁸¹ and to conduct market studies and to make market investigation references to the CMA. The concurrent regulators are:

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the Gas and Electricity Markets Authority (OFGEM)

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the Office of Communications (OFCOM)

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the Water Services Regulation Authority (OFWAT)

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the Office of Rail and Road (ORR)

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the Northern Ireland Authority for Utility Regulation (NIAUR)

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the Civil Aviation Authority (CAA)

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Monitor (now part of NHS Improvement)

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the Financial Conduct Authority (FCA)

●

the Payment Systems Regulator (PSR).

Each of the concurrent regulators, except for Monitor²⁸², has a duty to promote competition in the interests of consumers; they must also consider whether the use of their competition law powers is more appropriate before taking enforcement action under their sector-specific, regulatory powers²⁸³. These concurrent regulators and the CMA are members of the UK Competition Network (‘the UKCN’); Monitor attends the UKCN with observer status²⁸⁴. The ‘mission’ of the UKCN is to promote competition for the benefit of consumers and to prevent anti-competitive behaviour by using competition law powers and developing pro-competitive regulatory frameworks²⁸⁵. Arrangements are in place for coordination of the performance of the concurrent functions under the Act²⁸⁶; the UKCN website is a useful source of material²⁸⁷. Each of the concurrent regulators has agreed a Memorandum of Understanding with the CMA, which records the basis on which the authorities will cooperate and exchange information²⁸⁸. As noted above, an annual Concurrency Report is published by the CMA.

Appeals against ‘appealable decisions’ of the sectoral regulators under the Competition Act lie to the CAT²⁸⁹; references in relation to the licensing functions of the sectoral regulators²⁹⁰ and market investigations may be made to the CMA²⁹¹.

p. 74↵The ERRA gives the Secretary of State the power to remove, by order, from a sectoral regulator any of its concurrency functions, if he or she considers that it is appropriate to do so for the purpose of promoting competition for the benefit of consumers²⁹².

(vi) Competition Appeal Tribunal

(a) Establishment of the CAT

The CAT is established by section 12(1) of the Enterprise Act 2002²⁹³. It consists of a President²⁹⁴, a panel of Chairmen appointed by the Lord Chancellor following a recommendation from the Judicial Appointments Commission²⁹⁵ (judges of the High Court of England and Wales, the Court of Session in Scotland and the High Court in Northern Ireland have been appointed to this panel²⁹⁶) and a panel of ordinary members appointed by the Secretary of State²⁹⁷. Cases are heard by a Tribunal of three persons, chaired by the President or one person from the panel of Chairmen. Various matters can be dealt with either by the President or by one of the Chairmen sitting alone²⁹⁸. The CAT has a Registrar, also appointed by the Secretary of State²⁹⁹. Schedule 2 to the Enterprise Act contains provisions on such matters as eligibility for appointment as President or Chairman of the Tribunal. Section 14 of the Enterprise Act and Part I of Schedule 4 deal with the constitution of the Tribunal. Section 13 and Schedule 3 establish the Competition Service, the purpose of which is to fund and provide support services to the Tribunal³⁰⁰. The CAT’s website provides details of decided and pending cases, and all of its judgments will be found there³⁰¹. The CAT may sit outside London³⁰². The CAT publishes an Annual Review and Accounts³⁰³. On 18 January 2021 the CAT had a staff of nine, including the Registrar and four referendaires. The CAT has a User Group which meets from time to time to discuss its practical operation³⁰⁴.

(b) Functions of the CAT

The CAT, which is an independent judicial body, has four main functions in relation to competition matters³⁰⁵; it also has some functions in relation to regulatory matters³⁰⁶. The first function is to hear appeals on the merits from ‘appealable decisions’ of the CMA and the sectoral regulators under the Competition Act 1998³⁰⁷. Appeals on a point of law or as to the amount of a penalty lie from decisions of the CAT with permission to the Court of Appeal in England and Wales, to the Court of Session in Scotland and to the Court of p. 75↵Appeal of Northern Ireland in Northern Ireland³⁰⁸. A further appeal may be taken, with permission, to the UK Supreme Court.

The second function of the CAT is to hear any claim for damages or other sum of money brought by claimants who have suffered loss as a result of an infringement of UK competition law³⁰⁹. The CAT may also hear claims for an injunction in England and Wales or Northern Ireland³¹⁰. Claims may be brought on a ‘standalone’ basis, where the claimant must prove the infringement, or may ‘follow-on’ from a decision of the CMA or a sectoral regulator finding an infringement of competition law. The CAT may also authorise ‘collective proceedings’ brought by a representative on behalf of a defined class of claimants, either on an opt-in or an opt-out basis³¹¹. The CAT may also approve collective settlements³¹². Separately, the High Court may transfer a case to the CAT for it to determine whether there has been an infringement of the Chapter I and II prohibitions³¹³; it has done so on numerous occasions³¹⁴. The CAT has transferred one competition law claim to the High Court³¹⁵ but refused to do so on another occasion³¹⁶.

The CAT’s third function is to determine applications for review of decisions of the CMA, the Secretary of State or other Minister in relation to mergers³¹⁷ and market investigations³¹⁸.

The fourth function of the CAT is to hear appeals against penalties imposed by the CMA for failure to comply with notices requiring the attendance of witnesses or the production of documents during a market or merger investigation³¹⁹. Provision is made by section 41 of the ERRA for the CAT to grant warrants under the Competition Act and the Enterprise Act. This provision had not been activated as at 18 January 2021.

The Communications Act 2003 empowers the CAT to determine appeals against certain decisions taken by OFCOM or the Secretary of State (as the case may be)³²⁰. The CAT has also been given certain functions under the following legislation:

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the Mobile Roaming (European Communities) Regulations 2007³²¹

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Schedule 2A to the Electricity Act 1989 and Schedule 18 to the Energy Act 2004 in relation to determinations by OFGEM in respect of property schemes

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the Energy Act 2010³²²

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p. 76 the Authorisation of Frequency Use for the Provision of Mobile Satellite Services (European Union) Regulations 2010³²³

●

the Postal Services Act 2011³²⁴

●

the Civil Aviation Act 2012³²⁵

●

the Financial Services (Banking Reform) Act 2013³²⁶

●

the Payment Card Interchange Fee Regulations 2015³²⁷

●

the Communications (Access to Infrastructure) Regulations 2016³²⁸

●

the Payment Services Regulations 2017³²⁹.

(c) Rules

Section 15 of the Enterprise Act 2002 and Part 2 of Schedule 4 provide for the Secretary of State to make rules with respect to proceedings before the CAT. The Competition Appeal Tribunal Rules 2015³³⁰ entered into force on 1 October 2015. Following an Introduction in Part 1, Part 2 of the 2015 Rules deals with appeals to the CAT respectively under the Competition and Communications Acts³³¹; Part 3 is primarily concerned with applications for a review of decisions in mergers and market investigations³³². Part 4 of the Rules deals with claims for damages under section 47A of the Competition Act³³³, and provides for a ‘fast-track’ procedure for certain claims, for example where injunctive relief is sought³³⁴. Part 5 contains the rules on collective proceedings and collective settlements. Part 6 contains provisions on matters such as hearings, confidentiality, decisions of the CAT and appeals to the Court of Appeal³³⁵. Part 7 deals with the reference of price control matters to the CMA under the Communications Act 2003.

The CAT published a Guide to Proceedings on 1 October 2015 which provides guidance for parties and their legal representatives as to its procedures in relation to all cases which it is competent to entertain, and which has the status of a Practice Direction under Rule 115(3) of the 2015 Rules. The CAT has also published a Practice Direction relating to the disclosure and inspection of evidence in damages claims, which entered into force on 9 March 2017³³⁶ and is intended to align the practice of the CAT with the provisions of the EU Damages Directive³³⁷. The CAT published a Practice Direction (Covid 19 Filing and Hearing Arrangements) in response to the coronavirus crisis, which entered into force on 20 March 2020³³⁸.

(vii)p. 77 Civil courts

Actions may be brought in the High Court where there are infringements of the Chapter I and II prohibitions³³⁹; such actions are usually brought in the Chancery Division, but sometimes may be dealt with by the Commercial Court³⁴⁰; both are part of the ‘Business and Property Courts of England and Wales’. Where the CMA or the CAT has already found such an infringement its decisions are binding in proceedings before the High Court³⁴¹. Provision is made both for the transfer of ‘infringement issues’ from the High Court to the CAT³⁴² and for the transfer of all or part of competition law claims to and from the CAT³⁴³. The High Court has transferred infringements issues and numerous competition law claims to the CAT³⁴⁴.

Where a warrant is required to enter premises under section 28 or section 28A of the Competition Act 1998, this must be obtained from a judge of the High Court³⁴⁵.

(viii) Criminal courts

The Competition Act 1998 and the Enterprise Act 2002 create several criminal offences. Most notably, the Enterprise Act establishes the ‘cartel offence’, the commission of which could attract a prison sentence of up to five years as well as a fine³⁴⁶. The cartel offence is described in detail in chapter 10 ³⁴⁷. Under the Competition Act various criminal offences may be committed where investigations are obstructed, where documents are destroyed or falsified or where false or misleading information is provided³⁴⁸. There are also criminal offences under the Enterprise Act.

4. The Relationship Between EU Competition Law and National Competition Laws

(A) Introduction

All the Member States of the EU have systems of competition law, in large part modelled upon Articles 101 and 102. Some Member States require that domestic law should be interpreted consistently with the EU rules, thereby reinforcing the alignment of EU and domestic law. It follows that many cases will have the same outcome whether they are investigated under EU or under domestic law: for example, a horizontal price-fixing agreement would infringe Article 101(1), and would normally also be caught by any domestic system of competition law in the EU unless, for example, it occurred in a sector which was not subject to the domestic rules. Even though there is a high degree of convergence between EU and domestic competition law, the possibility remains that there could be different outcomes depending on which system of law is applied. In some cases domestic law may be more generous than EU law; in others it may be stricter.

p. 78↵EU law takes precedence over national law, so that where a clash occurs it is the former which must be applied³⁴⁹: in Walt Wilhelm v Bundeskartellamt³⁵⁰ the Court of Justice held that conflicts between the EU and national rules on cartels must be resolved by applying the principle that EU law takes precedence. However, the Walt Wilhelm judgment did not provide answers to all the situations that could arise: for example, could a Member State prohibit an agreement that benefited from an EU block exemption³⁵¹? These matters are now dealt with by Article 3 of Regulation 1/2003.

(B) Regulation 1/2003

Under Regulation 1/2003³⁵² the Commission shares the competence to apply Articles 101 and 102 with NCAs and national courts; of course, NCAs and national courts can also apply domestic competition law. Member States are required by Article 35 of the Regulation to designate the authorities responsible for the application of Articles 101 and 102³⁵³. Recitals 8 and 9 and Article 3 of the Regulation deal with the relationship between Articles 101 and 102 and national competition laws.

(i) Obligation to apply Articles 101 and 102

Recital 8 states that, in order to ensure the effective enforcement of EU competition law, it is necessary to oblige NCAs and national courts, where they apply national competition law to agreements or practices, to also apply Article 101 or 102 where those provisions are applicable. Article 3(1) therefore provides that, where NCAs or national courts apply national competition law to agreements, decisions by associations of undertakings or concerted practices that may affect trade between Member States, they shall also apply Article 101; similarly, they must apply Article 102 to any behaviour prohibited by that provision³⁵⁴. It is the concept of ‘trade between Member States’ that triggers the obligation to apply Articles 101 and 102, which is why the Commission published guidelines on it in 2004³⁵⁵.

In Toshiba v Úřad pro ochranu hospodářské soutěže³⁵⁶ the Court of Justice held that the combined effect of Articles 3(1) and 11(6) of Regulation 1/2003 is that the initiation by the Commission of proceedings relieves NCAs of their competence to apply Articles 101 and 102 TFEU and national competition laws. The power of the NCAs is restored once p. 79↵the proceeding initiated by the Commission has concluded³⁵⁷; thereafter the NCAs may apply national competition law, provided they comply with EU law, in particular Article 3 and Article 16(2) of Regulation 1/2003³⁵⁸.

In certain circumstances the use by sectoral regulators of their sector-specific regulatory powers might amount to the application of national competition law, with the consequence that the obligation to apply Articles 101 and 102 TFEU would arise in the event that the agreement or conduct affected trade between Member States³⁵⁹.

In its Report on the Functioning of Regulation 1/2003³⁶⁰ the Commission reported that Article 3(1) had led to a very significant increase in the application of Articles 101 and 102³⁶¹. There is no doubt that Article 3(1) has played an important part in making the EU competition rules (in the words of the Commission) the ‘law of the land’ in the EU³⁶². The ECN+ Directive aims to ensure that the NCAs have the guarantees of independence, resources, and enforcement and fining powers necessary to apply Articles 101 and 102 effectively, which inevitably has an impact on national competition law when it is applied in parallel by NCAs³⁶³.

(ii) Conflicts: Article 101

Recital 8 of Regulation 1/2003 states that it is necessary to create a ‘level playing field’ for agreements within the internal market. What this means is that, if an agreement is not prohibited under EU competition law, it should not be possible for an NCA or national court to apply stricter national competition law to it; this may be termed a ‘convergence rule’³⁶⁴. Article 3(2) therefore provides that the application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 101(1) or which fulfil the conditions of Article 101(3) or which are covered by a block exemption. There do not appear to have been major difficulties with the application of the convergence rule³⁶⁵.

(iii) Conflicts: Article 102

The position in relation to Article 102 is different, since Regulation 1/2003 does not demand convergence in relation to unilateral behaviour. Recital 8 of the Regulation states that Member States should not be precluded from adopting and applying on their territory stricter national competition laws which prohibit or impose sanctions on unilateral conduct. Article 3(2) therefore makes provision to this effect³⁶⁶. An example of a stricter p. 80↵national law on unilateral behaviour would be one that is intended to protect economically dependent undertakings: several Member States have laws to this effect³⁶⁷. In so far as regulatory controls on the unilateral behaviour of regulated undertakings could be regarded as national competition law, Article 3(2) would allow them to be applied to achieve a stricter outcome than under Article 102. If regulatory controls were intended to protect some other legitimate interest than the protection of competition they could be applied by virtue of Article 3(3).

In its Report on the functioning of Regulation 1/2003³⁶⁸ the Commission noted that the business and legal communities had criticised the divergence of legal standards on unilateral conduct across the Member States. The Commission considered that the exclusion of unilateral conduct from the scope of the convergence rule was a matter which warranted further reflection.

(iv) Protection of ‘other legitimate interests’

Recital 9 of Regulation 1/2003 states that its provisions should not preclude Member States from applying national legislation that protects legitimate interests other than the protection of competition on the market, provided that such legislation is compatible with the general principles and other provisions of EU law³⁶⁹. Article 3(3) therefore provides that the Regulation does not preclude the application of provisions of national law that ‘predominantly pursue an objective different from that pursued by Articles [101 and 102 TFEU]’. Recital 9 of the Regulation says that Articles 101 and 102 have as their objective ‘the protection of competition on the market’, which provides a benchmark against which to measure whether a national provision pursues an objective different from the EU competition rules. The recital specifically says that a Member State could apply legislation intended to combat unfair trading practices, for example a law that prevents the imposition on customers of terms and conditions that are unjustified, disproportionate or without consideration.

There may be situations in which it will be unclear whether a national provision is predominantly concerned with matters other than the protection of competition. Certain regulatory rules—for example, requiring the provision of a universal service or the protection of vulnerable consumers—clearly pursue objectives other than the protection of competition and so could be applied by virtue of Article 3(3). Consumer laws that provide protection against, for example, unfair contract terms, misleading advertising or sharp selling practices would also seem to pursue a predominantly different objective from Articles 101 and 102 TFEU³⁷⁰. However, a national rule that was dependent, for example, on a prior finding of significant market power would look more like a rule whose concern was the protection of competition³⁷¹. In that case the derogation provided by Article 3(3) would not be applicable, so that the position would be governed by Article 3(2): a stricter national rule in relation to agreements could not be applied, but a stricter rule on unilateral behaviour could be.

5.p. 81 The Institutional Structure of EU and UK Competition Law

Figures 2.1, 2.2 and 2.3 below set out the institutional architecture of EU and UK law.

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Fig. 2.1 Articles 101 and 102 TFEU; EU Merger Regulation

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Fig. 2.2 Competition Act 1998, Chapter I and II prohibitions

¹ The Competition Appeal Tribunal also hears actions for damages under sections 47A and 47B of the Competition Act 1998.

p. 82↵

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Fig. 2.3 Market investigations and merger inquiries

Notes

1 Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU], OJ [2003] L 1/1, available at www.ec.europa.eu.
2 The original name ‘European Economic Community’ of 1957 was replaced by ‘European Community’ by the Maastricht Treaty of 1992; the European Community, in turn, was subsumed into the ‘European Union’ by the Lisbon Treaty of 2009. References are now to EU, not to EC, competition law.
3 On 31 January 2020 the UK left the EU; on the UK’s departure from the EU see ‘Brexit’, pp 62–63 later in this chapter.
4 Article 2 TEU.
5 Article 3(1) TEU.
6 Article 3(3) TEU; see also Article 119(1) TFEU.
7 For comprehensive analysis of EU law in general see Chalmers, Davies and Monti European Union Law (Cambridge University Press, 4th ed, 2019); Craig and de Búrca EU Law: Texts, Cases, and Materials (Oxford University Press, 7th ed, 2020); Barnard and Peers European Union Law (Oxford University Press, 3rd ed, 2020); Costa and Peers (eds) Steiner and Woods EU Law (Oxford University Press, 14th ed, 2020).
8 On the supremacy of EU law see ‘Introduction’, pp 77–78 later in this chapter.
9 On public procurement see Arrowsmith The Law of Public and Utilities Procurement, Vol 1 (Sweet & Maxwell, 3rd ed, 2014); Bovis EU Public Procurement (Oxford University Press, 2nd ed, 2015); Sanchez-Graells Public Procurement and the EU Competition Rules (Hart, 2nd ed, 2015); Bovis Research Handbook on EU Public Procurement Law (Edward Elgar, 2016).
10 On the Euro see Stiglitz The Euro and its Threat to the Future of Europe (Penguin, 2017); see further ‘Economic and monetary union’, p 52 later in this chapter.
11 See European Green Deal, COM/2019/640 final; see speech by Commissioner Vestager of 2 March 2020 ‘Keeping the EU competitive in a green and digital world’, both available at www.ec.europa.eu.
12 See ‘Shaping Europe’s Digital Future’, 19 February 2020, available at www.ec.europa.eu.
13 On Article 101(1) see ch 3.
14 On Article 101(3) see ch 4.
15 On Article 102 see chs 5, 17, 18 and 19.
16 On Article 106 see ch 6, ‘Article 106’, pp 232–254.
17 Articles 107–109 are briefly discussed in ch 6, ‘Articles 107 to 109 TFEU—State Aids’, pp 256–257.
18 Council Regulation 139/2004 on the control of concentrations between undertakings, OJ [2004] L 24/1; on the EUMR see ch 21.
19 See the opinion of Advocate General Jacobs in Case 10/89 Hag II EU:C:1990:112, para 10, describing the Treaty as a ‘traité-cadre’.
20 See Article 51 TEU.
21 Case C-52/09 EU:C:2011:83.
22 Ibid, paras 20–22; see similarly Case T-691/14 Servier SAS v Commission EU:T:2018:922, para 238; Case T-399/16 CK Telecoms UK Investments Ltd v Commission EU:T:2020:217, para 92.
23 Case T-456/10 EU:T:2015:296, paras 211–212.
24 See eg Cases C-68/94 etc France v Commission EU:C:1998:148, paras 169–178; Case T-102/96 Gencor v Commission EU:T:1999:65, paras 148–158; Case C-194/14 P AC-Treuhand AG v Commission EU:C:2015:717, para 36; Case T-399/16 CK Telecoms UK Investments Ltd v Commission EU:T:2020:217, paras 91–96.
25 Case 6/72 Europemballage Corpn and Continental Can v Commission EU:C:1973:22, para 25.
26 Proposal for a Regulation establishing the Programme for single market, competitiveness of enterprises, including small and medium-sized enterprises, and European statistics, COM/2018/441 final.
27 ‘The values of competition policy’, speech of 13 October 2015, available at www.ec.europa.eu.
28 See eg Ancillary Sports Merchandise, Commission decision of 25 March 2019 (fine of €12.5 million on Nike); Character Merchandise, Commission decision of 9 July 2019 (fine of €6.2 million on Sanrio); and Film Merchandise, Commission decision of 30 January 2020 (fine of €14.3 million on NBCUniversal).
29 Commission decision of 20 January 2021.
30 Commission decision of 13 May 2019.
31 See eg the Commission’s XXVIIth Report on Competition Policy (1997), pp 7–8 and XXVIIIth Report on Competition Policy (1998), pp 24–25.
32 See ch 1, ‘The model of perfect competition is based on assumptions unlikely to be observed in practice’, p 10.
33 Regulation 260/2012, OJ [2012] L 94/22; see also Regulation 924/2009, OJ [2009] L 266/11, which requires banks to apply the same charges for domestic and cross-border electronic payment transactions in euros.
34 See ch 16 on vertical agreements.
35 See ch 15 on horizontal cooperation agreements.
36 See ch 19 on technology transfer agreements.
37 See ch 21 generally.
38 See ch 5, ‘The Commission’s Guidance on Article 102 Enforcement Priorities’, pp 212–215.
39 These changes are discussed at ‘Regulation 1/2003’, pp 78–80 later in this chapter; further in ch 4, ‘Regulation 1/2003’, pp 172–175; and in ch 7 generally.
40 See Commission Press Release IP/20/2347, 15 December 2020 and ch 23, ‘Digital platforms’, pp 1050–1055.
41 See ch 15 generally.
42 See ch 16 generally.
43 See ch 1, ‘Market definition’, pp 22–39.
44 See ch 7, ‘Article 17: investigations into sectors of the economy and into types of agreements’, p 281.
45 See www.ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response_en.
46 Joint statement by the European Competition Network on application of competition law during the corona virus crisis of 23 March 2020.
47 DG COMP letter of 8 April 2020; a second comfort letter was sent on 25 March 2021 to Ecorys and SPI in relation to the ‘Matchmaking Event—Towards COVID-19 vaccines upscale production’; see also Communication from the Commission Temporary Framework for assessing antitrust issues related to business cooperation in response to urgency situations stemming from the current COVID-19 outbreak OJ [2020] CI 116/7, paras 17–18.
48 See ch 23, ‘Council Regulations 1184/2006 and 1308/2013’, pp 1021–1024.
49 See Article 16 TEU and Articles 237–243 TFEU.
50 OJ [2004] L 24/1; on the EUMR see ch 21 generally.
51 OJ [2014] L 349/1; on the Damages Directive see ch 8, ‘The Damages Directive’, pp 315–319.
52 OJ [2019] L 11/3; on the ECN+ Directive see ch 7, ‘The ECN+ Directive’, p 305.
53 OJ [2003] L 1/1; on the Commission’s powers of enforcement see ch 7.
54 See ch 4, ‘Vires and block exemptions currently in force’, pp 176–178.
55 Article 17(1) TEU.
56 See further Costa and Peers (eds) Steiner and Woods EU Law (Oxford University Press, 14th ed, 2020), ch 2.
57 See Case C-344/98 Masterfoods Ltd v HB Ice Cream Ltd EU:C:2000:689, para 46.
58 On the international dimension of competition policy see ch 12.
59 See www.ec.europa.eu/competition/hearing_officers/hearing_officers.html.
60 Decision 2011/695/EU, OJ [2011] L 275/33; see Wils ‘The Role of the Hearing Officer in Competition Proceedings Before the European Commission’ (2012) 35 World Competition 431; see further ch 7, ‘The conduct of proceedings’, pp 298–299.
61 See www.ec.europa.eu/competition/index_en.html.
62 See www.ec.europa.eu/competition-policy/consumers/why-competition-policy-important-consumers_en.
63 See www.ec.europa.eu/competition/publications/index.html.
64 See www.ec.europa.eu/competition/cartels/whistleblower/index.html.
65 See ch 7, ‘Case allocation under Regulation 1/2003’, p 303.
66 See www.ec.europa.eu/competition/ecn/index_en.html.
67 See www.ec.europa.eu/competition/consultations/open.html.
68 See https://ec.europa.eu/info/system/files/management-plan-comp-2020_en.pdf.
69 This can be found at www.ec.europa.eu/competition/publications/annual_report/index.html.
70 See www.ec.europa.eu/competition/ecn/competition_authorities.html.
71 See www.ec.europa.eu/dgs/competition/economist/role_en.html.
72 See www.ec.europa.eu/dgs/competition/directory/organi_en.pdf.
73 See the Commission’s White Paper on levelling the playing field as regards foreign subsidies, COM(2020) 253 final, 17 June 2020.
74 Anti-cartel enforcement represents almost 48% of the Commission’s enforcement activity: Commission Communication Ten Years of Antitrust Enforcement under Regulation 1/2003, COM(2014) 453, para 11; on cartels see ch 13 generally.
75 For details of the Legal Service see www.ec.europa.eu/dgs/legal_service/index_en.htm.
76 See the Commission’s Notice to stakeholders: withdrawal of the United Kingdom and EU rules in the field of competition, 2 December 2020, available at www.ec.europa.eu.
77 Council Decision 88/591, OJ [1988] L 319/1.
78 Case T-399/16 CK Telecoms UK Investments Ltd v Commission EU:T:2020:217, para 72.
79 See Rules of Procedure of the General Court, OJ [2015] L 105/1.
80 See Article 261 (penalties); Article 263 (actions for annulment); Article 265 (failures to act); see Kerse and Khan EU Antitrust Procedure (Sweet & Maxwell, 6th ed, 2012), paras 8-064–8-177.
81 See eg Case C-386/10 P Chalkor v Commission EU:C:2011:815, para 67.
82 See www.curia.europa.eu.
83 See Rules of Procedure of the Court of Justice, OJ [2012] L 265/1; Arnull The European Union and its Court of Justice (Oxford EC Law Library, 2nd ed, 2006); Beck The Legal Reasoning of the Court of Justice of the EU (Hart, 2013); Bobek ‘The Court of Justice of the European Union’ in Arnull and Chalmers (eds) The Oxford Handbook of European Union Law (Oxford University Press, 2015).
84 See eg Case C-551/03 P General Motors BV v Commission EU:C:2006:229, paras 50–51.
85 On the Article 267 reference procedure see Kerse and Khan (ch 2 n 80 earlier), para 1.57; Hartley The Foundations of European Union Law (Oxford University Press, 8th ed, 2014), ch 9.
86 Council Decision 11009/13 of 18 June 2013.
87 Provision is made for this Committee by Article 14 of Regulation 1/2003; on this Committee see ch 7, ‘Article 14: Advisory Committee’, pp 280–281.
88 On consulting the Advisory Committee see Case T-66/01 Imperial Chemical Industries v Commission EU:T:2010:255, paras 163–171; Case T-691/14 Servier v Commission EU:T:2018:922, paras 142–167.
89 See EUMR, Article 19(3)–(7); on this Committee see ch 21, ‘Close and constant liaison with Member States’, pp 944–945.
90 See ‘Obligation to apply Articles 101 and 102’, pp 78–79.
91 On the ECN, see ‘European Commission’, pp 54–56.
92 See ch 7, ‘The ECN+ Directive’, p 305.
93 Regulation 1/2003, OJ [2003] L 1/1, recital 7; on the position of national courts see ch 8 generally.
94 Directive 2014/104, OJ [2014] L 349/1, recital 3.
95 On the EU Damages Directive see ch 8, ‘The Damages Directive’, pp 315–319.
96 See www.ec.europa.eu/competition/elojade/antitrust/nationalcourts/.
97 The website of the AECLJ is www.aeclj.com.
98 The European Parliament was the co-legislator, with the Council, of the Damages and ECN+ Directives.
99 OJ [1994] L 1/1; the EEA agreement entered into force on 1 January 1994; see Arnesen, Fredriksen, Graver and Mestad, Vedder Agreement on the European Economic Area: A Commentary (Hart, 2018); Blanco EU Competition Procedure (Oxford University Press, 3rd ed, 2013), ch 28; Broberg Broberg on the European Commission’s Jurisdiction to Scrutinise Mergers (Kluwer, 4th ed, 2013), ch 7; the Commission Staff Working Paper accompanying the Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003, SWD(2014) 230/2, paras 253–264.
100 EEA Agreement, Art 60 and Annex XIV; see also Protocol 4 to the EFTA Surveillance and Court Agreement, OJ [1994] L 344/3.
101 The website of the ESA is www.eftasurv.int.
102 The EFTA States signed an Agreement on the Establishment of a Surveillance Authority and a Court of Justice on 2 May 1992: it is reproduced in (1992) 15 Commercial Laws of Europe, Part 10; the Court of Justice delivered two Advisory Opinions on these arrangements: Opinion 1/91 EU:C:1991:490; and Opinion 1/92 EU:C:1992:189; the website of the EFTA Court is www.eftacourt.int.
103 EFTA Surveillance and Court Agreement, Article 34; see eg Case E-16/16 Fosen-Linjen I, judgment of 31 October 2017 and Case E-7/18 Fosen-Linjen II, judgment of 1 August 2019.
104 The division of competences between the European Commission and the ESA was considered in Cases T-67/00 etc JFE Engineering v Commission EU:T:2004:221, paras 482–493.
105 See Gerber Law and Competition in Twentieth Century Europe: Protecting Prometheus (Clarendon Press, 1998), ch X; Maher ‘Alignment of Competition Laws in the European Community’ (1996) 16 Oxford Yearbook of European Law 223; Ullrich ‘Harmonisation within the European Union’ (1996) 17 ECLR 178; Holmes and Davey (eds) A Practical Guide to National Competition Rules Across Europe (Kluwer, 2nd ed, 2007).
106 www.ec.europa.eu/competition/ecn/documents.html.
107 www.ec.europa.eu/competition/ecn/index_en.html.
108 It is possible in principle for agreements between the EU and third countries to have direct effect: see Case 104/81 Hauptzollamt Mainz v Kupferberg EU:C:1982:362 and Wyatt and Dashwood’s European Union Law (Hart, 6th ed, 2011), pp 953–955; however, there has yet to be a judgment on whether the competition rules in the Europe Agreements themselves have direct effect. On one occasion the Commission required amendments to Chanel’s distribution agreements to remove restrictions on exports to countries with which the EU had negotiated ‘Free Trade Agreements’, but this was done by agreement and without a reasoned decision on the part of the Commission: Chanel OJ [1994] C 334/11.
109 See www.eeas.europa.eu; Wulf and Maliszewska (eds) Economic Integration in the Euro-Mediterranean Region (CEPS, 2009), ch 5.5.
110 See the UK government’s Strategic Steer for the Competition and Markets Authority, July 2019, available at www.gov.uk/cma.
111 In particular the competition provisions in the Fair Trading Act 1973, the Restrictive Trade Practices Act 1976, the Resale Prices Act 1976 and the Competition Act 1980; note that s 11 of the Competition Act 1980, which provides for ‘efficiency audits’ of public-sector bodies, remains in force but has not been used for many years.
112 See the UK Government’s Strategic Steer for the Competition and Markets Authority, July 2019, available at www.gov.uk/cma.
113 See ‘Brexit’, pp 62–63 later in this chapter.
114 See ch 9, ‘The Chapter I Prohibition’, pp 353–383.
115 See ch 9, ‘The Chapter II Prohibition’, pp 383–393.
116 See ch 9, ‘Section 60A of the Competition Act’, pp 393–397.
117 On the exceptions to the duty of consistency under section 60A(2) see ch 9, ‘Exceptions to the duty of consistency’, pp 396–397.
118 On the enforcement powers under the Competition Act 1998 and concurrency see ch 10.
119 See further ch 22, ‘“Public interest cases”, “other special cases” and mergers in the water industry’, pp 1012–1018.
120 See further ch 22 (merger investigations) and ch 11 (market investigations); these provisions replaced the merger and monopoly provisions formerly contained in the Fair Trading Act 1973.
121 See ch 10, ‘Penalties’, pp 430–435.
122 See ch 10, ‘Grounds for disqualification’, p 458.
123 See ch 8, ‘Private actions in the UK courts’, pp 328–342.
124 SI 2004/1261; the Amendment Regulations entered into force on 1 May 2004.
125 See ch 8, ‘Damages claims may be brought in the High Court or the Competition Appeal Tribunal’, pp 330–332.
126 See ch 8, ‘Collective redress in the UK’, pp 334–338.
127 See Competition law redress: a guide to taking action for breaches of competition law, CMA55, May 2016, available at www.gov.uk/cma.
128 Consumers Rights Act 2015, Sch 8, para 31; see ch 8, ‘CAT proceedings’, pp 331–332.
129 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 24 January 2020, OJ [2019] C384I, available at www.ec.europa.eu.
130 The European Union (Withdrawal) Act 2018, ss 1A–1B, as inserted by the European Union (Withdrawal) Act 2020, s 1.
131 SI 2019/93; see also the Competition (Amendment etc.) (EU Exit) Regulations 2020, SI 2020/1343, which contain the implementing measures for the period that commences on 1 January 2021.
132 Ibid, reg 16.
133 See ch 9 ‘Section 60A of the Competition Act 1998’, pp 393–397.
134 SI 2019/93, reg 3.
135 See ch 8, ‘Section 58A Competition Act’, pp 332–333.
136 State Aid (Revocations and Amendments) (EU Exit) Regulations, SI 2020/1470.
137 See ch 21, ‘The benefits of one-stop merger control’, pp 888–890.
138 See Guidance on the functions of the CMA after the end of the Transition Period, 1 December 2020, CMA125, available at www.gov.uk/government/news/cma-publishes-eu-exit-guidance.
139 OJ [2020] L 444/14.
140 Ibid, Article 1.1.1.
141 Competition law review: post implementation review of statutory changes in the Enterprise and Regulatory Reform Act 2013, July 2019, available at www.gov.uk; prior to this review, in February 2019, Lord Tyrie, then the chairman of the CMA, wrote to the Secretary of State to propose legislative and institutional reform: see www.gov.uk/government/publications/letter-from-andrew-tyrie-to-the-secretary-of-state-for-business-energy-and-industrial-strategy.
142 See speech by Greg Clark MP of 18 July 2019 ‘Competition rules must continue to evolve’, available at www.gov.uk.
143 ‘Power to the people’, available at www.gov.uk.
144 See also the letter of 21 February 2019 from Lord Tyrie (ch 2 n 141 earlier).
145 Unlocking Digital Competition: Report of the Digital Competition Expert Panel, March 2019, available at www.gov.uk.
146 See www.gov.uk/cma-cases/digital-markets-taskforce.
147 See CMA Press Release of 27 November 2020, available at www.gov.uk/cma.
148 See www.gov.uk/government/news/cma-advises-government-on-new-regulatory-regime-for-tech-giants.
149 The institutional structure of UK competition law is set out in diagrammatic form later in the chapter: see Figs 2.2 and 2.3, p 82.
150 See most recently The UK competition regime, NAO, 3 February 2016, HC 737, available at www.nao.org.uk, on which see Whish ‘The National Audit Office’s Report on the UK Competition Regime: How Well is the Regime Performing?’ [2016] Comp Law 197.
151 The BEIS website is www.gov.uk/beis.
152 ERRA, Sch 4, paras 1(1) and 9(1).
153 Enterprise Act 2002, s 12(2)(c); note that the President and Chairmen of the Tribunal are appointed by the Lord Chancellor upon the recommendation of the Judicial Appointments Commission: ibid, s 12(2)(a) and (b).
154 Ibid, s 12(3).
155 Ibid, Sch 3, para 1(2).
156 Ibid, s 11(5); see further ch 11, ‘Super-complaints’, pp 474–477.
157 Competition Act 1998, s 3(2), s 19(2) (Sch 1, dealing with mergers and concentrations) and s 3(3), s 19(3) (Sch 3, dealing with general exclusions): see ch 9, ‘The Chapter I prohibition: excluded agreements’, pp 371–378 and ‘Exclusions’, p 392 respectively.
158 Competition Act 1998, ss 6–8: see ch 9, ‘Block exemptions’, p 382.
159 Competition Act 1998, s 36(8): see ch 10, ‘Maximum amount of a penalty’, p 431.
160 Competition Act 1998, s 38(4): see ch 10, ‘The guidance as to the appropriate amount of a penalty’, p 431.
161 Competition Act 1998, s 39 (small agreements) and s 40 (conduct of minor significance): see ch 10, ‘Immunity for small agreements and conduct of minor significance’, pp 434–435.
162 Competition Act 1998, s 50: see ch 9, ‘Section 50: land agreements’, p 378 and ch 16, ‘The exclusion of vertical agreements from the Chapter I prohibition until 30 April 2005’, p 710.
163 Competition Act 1998, s 51: see the Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014, SI 2014/458.
164 Competition Act 1998, s 54(4)–(5): see the Competition Act 1998 (Concurrency) Regulations 2014, SI 2014/536; see also Enterprise Act 2002, s 204, which creates a power for the Secretary of State to make regulations in relation to concurrency functions as to company director disqualification: for a discussion of the rules on concurrency see ch 10, ‘Concurrency’, pp 460–464.
165 See the Competition Act 1998 (Notification of Excluded Agreements and Appealable Decisions) Regulations 2000, SI 2000/263, reg 10.
166 See ch 9, ‘Public policy’, pp 376–377.
167 Enterprise Act 2002, s 15 and Sch 4, Part 2: see the Competition Appeal Tribunal Rules 2015, SI 2015/1648.
168 Ibid; see ch 22, ‘The turnover test’, pp 971–972.
169 Enterprise Act 2002, s 111(4); see ch 22, ‘Investigation powers and penalties’, pp 1002–1003.
170 Enterprise Act 2002, s 121; see ch 22, ‘Fees’, p 979.
171 Enterprise Act 2002, s 123; see ch 22, ‘The share of supply test’, pp 972–973.
172 Enterprise Act 2002, s 40(8).
173 Ibid, s 205; see ch 11, ‘Super-complaints’, pp 474–477.
174 Enterprise Act 2002, s 34ZC(6).
175 Ibid, s 131C and s 137(3).
176 Competition Act 1998, s 31F.
177 ERRA, s 52; the Secretary of State and the Scottish Ministers acting jointly have power to make a market investigation reference to the CMA: Scotland Act 2016, s 63.
178 European Union (Withdrawal) Act 2018, s 8, Sch 4, para 1(1) and Sch 7, para 21.
179 SI 2019/93.
180 ERRA, Sch 4, para 14(1); see ‘Annual Reports on performance and concurrency’, p 69, later in chapter.
181 See ch 22, ‘Determination of references by the CMA: Phase 2 investigations’, pp 979–982 (merger investigations) and ch 11, ‘Market investigation references’, pp 481–490 (market investigations).
182 Ibid, explaining Enterprise Act 2002, ss 42–68, s 132, ss 139–153 and Sch 7.
183 Enterprise Act 2002, s 12(2)(a) and (b) and Sch 2, para 1; the Judicial Appointments Commission’s website is www.judicialappointments.gov.uk.
184 Enterprise Act 2002, s 16(1)–(4); see the Section 16 Enterprise Act 2002 Regulations 2015, SI 2015/1643.
185 Ibid, s 16(5); see the Competition Appeal Tribunal Rules 2015, SI 2015/1648, r 71.
186 ERRA, s 25(1).
187 Ibid, s 26(2).
188 Ibid, s 26(1).
189 Ibid, s 27(1).
190 Ibid, s 25(1).
191 Ibid, s 25(3).
192 The government published strategic steers in October 2013, December 2015 and July 2019, available at www.gov.uk.
193 ERRA, Sch 4, para 1(3).
194 Ibid, Sch 4, para 9(1)–(2).
195 Ibid, Sch 4, para 27; details of the members of the CMA Board are available at www.gov.uk/cma.
196 See www.gov.uk/cma.
197 See ‘The CMA’s strategy’, p 68, later in chapter.
198 ERRA, Sch 4, paras 28 and 29(2).
199 The Case and Policy Committee also appoints the ‘Case Decision Groups’ that take final decisions under the Competition Act 1998: see Terms of Reference, July 2014, para 4(a).
200 The Portfolio and Resource Committee and the Remedies, Undertakings and Commitments Committee were disbanded in January 2015: CMA’s Annual Report and Accounts 2014–15, July 2015, fn 4.
201 ERRA, Sch 4, para 29(1).
202 It is a sub-committee of the Executive Committee.
203 See further ch 11, ‘The CMA Panel and market reference groups’, p 486 and ch 22, ‘Brief description of the system of merger control in the UK’, p 961.
204 ERRA, Sch 4, para 49(1).
205 See Guidance on the CMA’s investigation procedures in Competition Act 1998 cases, CMA8, November 2020, para 11.35.
206 ERRA, Sch 4, para 3(2).
207 Authorisation of staff of the CMA and the CMA Panel Chair and Deputy Chairs, 1 April 2014, available at www.gov.uk/cma.
208 ERRA, Sch 4, para 1(4).
209 Deputy Chairs are known as ‘Inquiry Chairs’ when they chair Phase 2 merger and market inquiries.
210 See www.gov.uk/cma.
211 ERRA, Sch 4, para 51(1): CMA Rules of Procedure for Merger, Market and Special Reference Groups, CMA17, March 2014 (corrected in November 2015).
212 The Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014, SI 2014/458, rr 6(5)–(6) and 8; see further www.gov.uk/procedural-officer-raising-procedural-issues-in-cma-cases.
213 See eg Competition Act 1998: Guidance on the CMA’s investigation procedures in Competition Act 1998 Cases, CMA8, November 2020, paras 9.4–9.5, 11.20 and 12.15.
214 Ibid.
215 An organisation chart of the structure of the CMA is available at www.gov.uk/cma.
216 The work of the DaTA unit is one of the priority areas of the CMA’s Digital Markets Strategy, 3 July 2019.
217 CMA’s Annual Reports and Accounts 2016/17, July 2017, p 107, available at www.gov.uk/cma.
218 The Edinburgh office was opened in May 2018 and around 10% of the CMA’s staff work there; see Whish ‘Competition Law in Scotland’ [2019] 18 Comp Law 133.
219 CMA13, January 2014, available at www.gov.uk/cma.
220 Ibid.
221 ERRA, Sch 4, paras 12–13.
222 CMA137, March 2021, available at www.gov.uk/government/consultations/cma-annual-plan-consultation-202021.
223 CMA35, November 2014, available at www.gov.uk/cma.
224 The markets identified in the Strategic Assessment have ‘strategic significance’ for the purposes the CMA’s Prioritisation Principles (see n 234, later in this chapter): ibid, para 5.39.
225 See www.gov.uk/government/publications/competition-and-markets-authoritys-digital-markets-strategy.
226 Final Report of 1 July 2020; see further ch 11, ‘Examples of recent market studies’, p 480.
227 Performance Management Framework, January 2014, available at www.gov.uk.
228 Ibid.
229 CMA Impact Assessment 2019/20, CMA121, July 2020, para 1.4.
230 ERRA, Sch 4, para 14(1)–(2).
231 Ibid, para 14(3).
232 Ibid, para 16(1).
233 Ibid, para 16(3); see www.gov.uk/government/collections/uk-competition-network-ukcn-documents.
234 CMA16, April 2014; see further ch 10, ‘Opening a formal investigation’, pp 411–412.
235 Enterprise Act 2002, ss 5–7.
236 Ibid, s 7, as amended by the Small Business, Enterprise and Employment Act 2015, s 37; the CMA has made recommendations on competition issues raised by, for example, the Energy Bill, the Bus Services Bill and the Higher Education Bill.
237 See www.gov.uk/government/publications/state-of-uk-competition-report-2020.
238 For guidance on the CMA’s functions during the Brexit transition period see UK Exit from the EU: Guidance on the functions of the CMA under the Withdrawal Agreement, CMA113, January 2020.
239 See ch 10 generally.
240 See ch 10, ‘Appeals’, pp 464–471.
241 On the cartel offence see ch 10, ‘The Cartel Offence’, pp 446–457 and ‘Company Director Disqualification’, pp 457–460.
242 See Memorandum of Understanding between the CMA and the SFO, April 2014, available at www.gov.uk/cma.
243 See ch 11 (market studies and market investigations) and ch 22 (merger inquiries).
244 See ch 11, ‘Review of decisions under Part 4 of the Enterprise Act’, pp 496–498 and ch 22, ‘Review of decisions under Part 3 of the Enterprise Act’, pp 1003–1005.
245 See further ch 11, ‘Orders and undertakings under the Fair Trading Act 1973’, p xxx and ch 22, ‘Enforcement functions of the CMA’, p 510.
246 On efficiency audits see Halsbury’s Laws of England, Vol 18 (LexisNexis, 5th ed reissue, 2009), para 10.
247 See ch 9, ‘Financial Services and Markets Act 2000’, pp 373–374.
248 See Transport (Scotland) Act 2001 (Conditions attached to PSV Operator’s Licence and Competition Test for Exercise of Bus Functions) Order 2001, SI 2001/2748.
249 United Kingdom Internal Market Act 2020, ss 30–45.
250 See the Gas Act 1986 and the Gas (Northern Ireland) Order 1996, SI 1992/231; the Electricity Act 1989 and the Electricity (Northern Ireland) Order 1992/231; the Water Industry Act 1991; the Water Services (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005, SI 2005/3172; the Water and Sewerage Services (Northern Ireland) Order 2006, SI 2006/3336; the Railways Act 1993; the Transport Act 2000; the Communications Act 2003; the Energy Act 2004; the Postal Services Act 2011; the Civil Aviation Act 2012; the Digital Economy Act 2017; and the Smart Meters Act 2018.
251 As a consequence of Brexit the Enterprise Act and the Consumer Rights Act were amended by the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018, SI 2018/1326 and the Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2019, SI 2013/3134, with effect from 1 January 2021.
252 SI 2000/2334, as amended by SI 2005/689.
253 SI 2008/1277, as amended by SI 2018/1326.
254 SI 2013/3110, as amended by SI 2018/1326.
255 SI 2013/3110, as amended by SI 2018/1326.
256 CMA58, August 2016; Annexe A summarises the consumer legislation relevant to the CMA; see also see UK exit from the EU: guidance on the functions of the CMA under the Withdrawal Agreement, CMA113, January 2020, section 5, both available at www.gov.uk/cma.
257 CMA Annual Plan 2020/21, CMA112, March 2020, available at www.gov.uk/cma.
258 CMA impact assessment 2019/20, CMA121, July 2020, para 3.8.
259 ERRA, s 25(3); on the CMA’s international role see the speech by Lord Currie of 30 June 2014, available at www.gov.uk/cma.
260 On the work of these international bodies see ch 12, ‘The International Competition Law Institutions’, pp 512–515.
261 A register of warning and advisory letters is available at www.gov.uk/cma.
262 See eg CMA Press Release, South East lawyers asked to help raise competition law awareness, 25 January 2017.
263 See www.cheatingorcompeting.campaign.gov.uk.
264 See CMA Annual Report and Accounts 2019/20, HC 567, July 2020, p 8.
265 See www.gov.uk/government/publications/covid-19-cma-taskforce.
266 See www.gov.uk/government/news/cma-advises-government-on-new-regulatory-regime-for-tech-giants.
267 Competition Act 1998, s 51(5).
268 SI 2014/458.
269 See Competition impact assessment: guidelines for policymakers, CMA50, September 2015.
270 Transparency and disclosure, CMA6, January 2014, as clarified by a CMA note on publishing market sensitive announcements, December 2016.
271 Competition Act 1998, s 52.
272 See www.gov.uk/cma.
273 See www.gov.uk/cma-cases; the Public Register of decisions under the Competition Act 1998 is available at www.gov.uk/government/publications/ca98-public-register.
274 See www.gov.uk/cma.
275 See www.nationalarchives.gov.uk.
276 See ch 10, ‘The cartel offence’, pp 446–457.
277 Enterprise Act 2002, s 190(2)(b).
278 See Memorandum of Understanding between the CMA and the SFO, 21 October 2021; the website of the SFO is www.sfo.gov.uk.
279 Enterprise Act 2002, s 190(1); see ch 10, ‘Prosecution and penalty’, pp 452–453.
280 See Memorandum of Understanding between the CMA and the Crown Office and Procurator Fiscal Service, July 2014, available at www.gov.uk/cma.
281 See Enterprise Act 2002, s 11; the Enterprise Act 2002 (Super-complaints to Regulators) Order 2003, SI 2003/1368; the Financial Services and Markets Act 2000, s 234C (FCA); and the Financial Services (Banking Reform) Act 2013, s 68 (PSR).
282 Health and Social Care Act 2012, s 62(3) imposes a duty to prevent anti-competitive behaviour in the provision of health care services.
283 ERRA, Sch 14.
284 Regulated industries: guidance on concurrent application of competition law to regulated industries, CMA10, March 2014, para 3.15.
285 Ibid, Annexe B, Statement of Intent of the UKCN, 3 December 2013.
286 On concurrency see ch 10, ‘Concurrency’, pp 460–464.
287 See www.gov.uk/government/groups/uk-competition-network.
288 The Memoranda were signed in 2016 and are available at www.gov.uk/cma; they may be amended from time to time: eg a new Memorandum was agreed between the CMA and the FCA in July 2019.
289 On the meaning of appealable decisions see ch 10, ‘Appealable decisions’, pp 464–467.
290 On licence modification references see ch 23, ‘Regulatory systems in the UK for utilities’, p 1037.
291 Enterprise Act 2002, Sch 9, Part 2.
292 ERRA, s 52; the concurrent regulators that may be the subject of a ‘sectoral regulator order’ are OFCOM, OFGEM, OFWAT, the ORR, the NIAUR and the CAA.
293 The Competition Act 1998 had established, within the former CC, appeal tribunals which could hear appeals under that Act; these tribunals have been abolished, and the CAT inherited their functions on 1 April 2003: see s 21 of and Sch 5 to the Enterprise Act.
294 Enterprise Act 2002, s 12(2)(a).
295 Ibid, s 12(2)(b).
296 Ibid, s 12(2)(aa), (ab) and (ac).
297 Ibid, s 12(2)(c).
298 Competition Appeal Tribunal Rules 2015, r 110.
299 Ibid, s 12(3).
300 Ibid, s 13(2).
301 The website of the CAT is www.catribunal.org.uk.
302 See the Competition Appeal Tribunal Rules 2015, r 18; the CAT has sat in Belfast in the BetterCare case; in Edinburgh in the Aberdeen Journals and Claymore cases; and in Cardiff in the Cardiff Bus case: for details of these cases see the CAT’s website.
303 Available at www.catribunal.org.uk.
304 The minutes of the last two User Group meetings are available at www.catribunal.org.uk.
305 See Bailey ‘The Early Case Law of the Competition Appeal Tribunal’ in Rodger (ed) Ten Years of UK Competition Law Reform (Dundee University Press, 2010), ch 2.
306 In 2013 the government published Streamlining Regulatory and Competition Appeals: Consultation on Options for Reform, but to date it has not published a response to this consultation.
307 On appealable decisions see ch 10, ‘Appealable decisions’, pp 464–467; it is also possible that an application for judicial review of the CMA and sectoral regulators may be brought before the Administrative Court: ch 10, ‘Appeals’, pp 464–471.
308 Competition Act 1998, s 49: see the Competition Appeal Tribunal Rules 2015, rr 107 and 108 and ch 10, ‘Appeals from the CAT to the Court of Appeal and from the Court of Appeal to the Supreme Court’, p 471.
309 On the CAT’s jurisdiction to hear damages actions see ch 8, ‘CAT proceedings’, pp 331–332; see also Rodger ‘Private Enforcement’ in MacCulloch, Rodger and Whelan (eds), The UK Competition Regime: A Twenty-Year Retrospective (Oxford University Press, 2021).
310 Competition Act 1998, s 47A(3)(c).
311 Ibid, s 47B and the Competition Appeal Tribunal Rules 2015, rr 77(1), 78 and 79; see ch 8, ‘Collective redress in the UK’, pp 334–337.
312 Competition Act 1998, s 49A and s 49B.
313 See the Section 16 Enterprise Act 2002 Regulations 2015, SI 2015/1643.
314 See eg Sainsbury’s Supermarkets Ltd v MasterCard Inc [2015] EWHC 3472 (Ch); Agents’ Mutual Ltd v Gascoigne Halman Ltd, order of 5 July 2016; Enterprise Rent-a-Car Ltd v DAF Trucks Ltd, order of 6 February 2020; CMA v Mr Pritesh Sonpal, order of 17 September 2020.
315 Case 1194/5/7/12 WH Newson Holding Limited v IMI plc, order of 24 July 2017.
316 Case 1342/5/7/20 Sportradar v Football DataCo [2020] CAT 25.
317 Enterprise Act 2002, s 120: see ch 22, ‘Review of decisions under Part 3 of the Enterprise Act’, pp 1003–1005.
318 Enterprise Act 2002, s 179: see ch 11, ‘Review of decisions under Part 4 of the Enterprise Act’, pp 496–498.
319 See further ch 11, ‘Powers of investigation and penalties’, p 495 and ch 22, ‘Investigation powers and penalties’, pp 1002–1003.
320 Communications Act 2003, ss 192 and 317(6); see Guide to Proceedings, October 2015, paras 2.29–2.38 and ‘Reform’, p 63 earlier in this chapter.
321 SI 2007/1933, as amended by Mobile Roaming (EU Exit) Regulations, SI 2019/587.
322 Energy Act 2010, ss 20–21.
323 SI 2010/672, as amended by Radio Spectrum (EU Exit) Regulations, SI 2018/1385.
324 Postal Services Act 2011, s 57.
325 Civil Aviation Act 2012, Schs 1, 3–5 and 13.
326 Financial Services (Banking Reform) Act 2013, ss 76 and 78.
327 SI 2015/1911, as amended by Interchange Fee (Amendment) (EU Exit) Regulations, SI 2019/284.
328 SI 2016/700.
329 SI 2017/752, as amended by Electronic Money, Payment Services and Payment Systems (Amendment and Transitional Provisions) (EU Exit) Regulations, SI 2018/1201.
330 SI 2015/1648.
331 On appeals under the Competition Act see ch 10, ‘Appeals’, pp 464–471.
332 See ch 22, ‘Review of decisions under Part 3 of the Enterprise Act’, pp 1003–1005 (mergers) and ch 11, ‘Review of decisions under Part 4 of the Enterprise Act’, pp 496–498 (market investigations).
333 See ch 8, ‘CAT proceedings’, pp 331–332.
334 See the Competition Appeal Tribunal Rules 2015, r 58, on which see Case 1250/5/7/16 Breasley Pillows Ltd v Vita Cellular Foams (UK) Ltd [2016] CAT 8.
335 See ‘Appeals from the CAT to the Court of Appeal and from the Court of Appeal to the Supreme Court’, p 471.
336 Available at www.catribunal.org.uk.
337 See Competition Act 1998, Sch 8A, inserted by the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017, SI 2017/385, on which see ch 8, ‘Implementation of the Damages Directive in the UK’, p 128.
338 Available at www.catribunal.org.uk; see also the Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020, SI 2020/801, which provides for the recording and broadcasting of CAT hearings.
339 On the enforcement of the Competition Act in the civil courts see ch 8 generally.
340 Practice Direction—Competition Law—Claims Relating to the Application of Articles [101 and 102 TFEU] and Chapters I and II of Part I of the Competition Act 1998, available at www.justice.gov.uk.
341 Competition Act 1998, s 58A; the ordinary courts are also bound by findings of fact made by the CMA in the course of its investigation, unless the court directs otherwise: Competition Act 1998, s 58.
342 See the Section 16 Enterprise Act 2002 Regulations 2015, SI 2015/1643; ‘infringement issues’ are listed in the Enterprise Act 2002, s 16(6).
343 Competition Appeal Tribunal Rules 2015, rr 71 and 72 and CPR Part 30, Practice Direction, paras 8.1–8.8.
344 See n 314 above.
345 Competition Act 1998, s 28(1) and s 59; in Scotland the relevant court is the Court of Session: ibid.
346 Enterprise Act 2002, s 190.
347 See ch 10, ‘The cartel offence’, pp 446–457.
348 Competition Act 1998, ss 42–44, ss 65L–65N and s 72: see ch 10, ‘Sanctions’, pp 419–420.
349 See Case 6/64 Costa v ENEL EU:C:1964:66; Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal EU:C:1978:49; Case C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) EU:C:1990:257; Case C-221/89 R v Secretary of State for Transport, ex p Factortame Ltd (No 3) EU:C:1991:320; note that NCAs must disapply national law that involves an infringement of EU competition law: Case C-198/01 Consorzio Industrie Fiammiferi EU:C:2003:430.
350 Case 14/68 EU:C:1969:4.
351 The Court of Justice declined to give an answer to this question in Case C-70/93 Bayerische Motoren Werke v ALD Auto-Leasing EU:C:1995:344 and Case C-266/93 Bundeskartellamt v Volkswagen and VAG Leasing EU:C:1995:345, since the agreements in those cases were not covered by the block exemption for motor car distribution in force at that time.
352 See ch 2 n 1 earlier. For further discussion of Article 3 of Regulation 1/2003 see Faull and Nikpay (eds) The EU Law of Competition (Oxford University Press, 3rd ed, 2014), paras 2.30–2.76.
353 Designated national authorities have the right to participate in judicial proceedings against a decision that they have taken under Article 101 or 102: Case C-439/08 VEBIC EU:C:2010:739.
354 On the temporal effect of this provision see Case C-17/10 Toshiba Corporation v Úřad pro ochranu hospodářské soutěže EU:C:2012:72; for discussion of the duty contained in Article 3(1) of Regulation 1/2003 see Wils ‘The Obligation of the Competition Authorities of the Member States to Apply EU Antitrust and the Facebook Decision of the Bundeskartellamt’ (2019) 3 Concurrences 58, available at www.ssrn.com.
355 Guidelines on the effect on trade concept contained in Articles [101 and 102 TFEU] OJ [2004] C 101/81; the Guidelines are discussed in ch 3, ‘The effect on trade between Member States’, pp 148–153.
356 Case C-17/10 EU:C:2012:72, paras 74–78.
357 Ibid, paras 79–91.
358 Article 16(2) prohibits NCAs from contradicting a previous decision of the Commission; on Article 16 of Regulation 1/2003 see ch 8, ‘Article 16: uniform application of EU competition law’, pp 322–323.
359 Ibid, paras 4.28–4.30.
360 COM(2009) 206 final; see also the Commission Staff Working Paper accompanying the Report on the Functioning of Regulation 1/2003, SEC(2009) 574 final, paras 139–181 which contains detailed analysis of the operation of Article 3 between 2004 and 2009; both documents are available at www.ec.europa.eu/competition/antitrust/legislation.html.
361 SEC(2009) 574 final, para 25.
362 See Commission Communication Ten years of antitrust enforcement under Regulation 1/2003: achievements and future perspectives, COM(2014) 453, para 23.
363 Directive (EU) 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJ [2019] L 11/3, recital 3; see further ch 7, ‘The ECN+ Directive’, p 305.
364 See Commission’s Guidelines on the application of Article [101(3) TFEU] OJ [2004] C 101/97, para 14.
365 See the Commission Staff Working Paper accompanying the Report on the Functioning of Regulation 1/2003, SEC(2009) 574 final, para 159.
366 For comment see Hildebrand ‘Article 3(2) In Fine: Time for Review’ Concurrences No 2–2015.
367 See the Commission Staff Working Paper accompanying the Report on the Functioning of Regulation 1/2003, SEC(2009) 574 final, paras 162–169 which provides examples of national rules concerning economic dependence and similar situations, available at www.ec.europa.eu.
368 COM(2009) 206 final, para 27; see also the Commission Staff Working Paper accompanying the Report on the Functioning of Regulation 1/2003, SEC(2009) 574 final, paras 160–179.
369 See, to similar effect, Article 21(4) of the EUMR, discussed in ch 21, ‘Article 21(4): legitimate interest clause’, pp 896–899.
370 See the Commission Staff Working Paper accompanying the Report on the Functioning of Regulation 1/2003, SEC(2009) 574 final, para 181.
371 See eg national laws implementing Articles 63–67 of the European Electronic Communications Code, OJ [2018] L 321/36.

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Competition Law (10th edn)

Contents

Competition Law (10th edn)

p. 492. Overview of EU and UK competition law

p. 492. Overview of EU and UK competition law

Abstract

Keywords

1. Introduction

2. EU Law

(A) The EU Treaties

(i) The competition chapter in the TFEU

(ii) The single market imperative

(iii) Economic and monetary union

(iv) The modernisation of EU competition law

(v) The coronavirus crisis

(B)p. 54 Institutions

(i) Council of the European Union

(ii) European Commission

(iii) General Court

(iv) Court of Justice

(v) Advisory Committee on Restrictive Practices and Dominant Positions

(vi) Advisory Committee on Concentrations

(vii) National competition authorities

(viii) National courts

(ix) European Parliament

(C) European Economic Area

(D) Modelling of domestic competition law on Articles 101 and 102

3. UK Law

(A) Competition Act 1998

(B) Enterprise Act 2002

(C) Changes to domestic law as a result of Regulation 1/2003

(D) Enterprise and Regulatory Reform Act 2013

(E) Consumer Rights Act 2015

(F) Brexit

(G) Reform

(H) Institutions

(i) Secretary of State and the Department for Business, Energy and Industrial Strategy

(a) Appointments

(b) Amendment of legislation, the adoption of delegated legislation and the making or approval of guidance

(c)p. 66 Receipt of performance report

(d) Involvement in individual cases

(ii) The Lord Chancellor

(iii) The CMA

(a) Establishment of the CMA

(b) The CMA Board

(c) The CMA Panel

(d) The staff of the CMA

(e) The CMA’s strategy

(f) Performance framework

(g) Annual Reports on performance and concurrency

(h) Functions of the CMA

(i) Rules

(j) Publications, information, guidance etc

(iv) Serious Fraud Office

(v)p. 73 Sectoral regulators

(vi) Competition Appeal Tribunal

(a) Establishment of the CAT

(b) Functions of the CAT

(c) Rules

(vii)p. 77 Civil courts

(viii) Criminal courts

4. The Relationship Between EU Competition Law and National Competition Laws

(A) Introduction

(B) Regulation 1/2003

(i) Obligation to apply Articles 101 and 102

(ii) Conflicts: Article 101

(iii) Conflicts: Article 102

(iv) Protection of ‘other legitimate interests’

5.p. 81 The Institutional Structure of EU and UK Competition Law

Notes

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