As negotiations between the European Union (EU) and UK enter their final stages, the outcome of Brexit rests on a knife’s edge. The expiry of the transition period on 31 December 2020 (“Transition Period”) is fast approaching and, with that, the risk that the UK will leave with a so-called “Australia-style” relationship, that is to say, a trading relationship based on standard WTO rules.
What is certain, regardless of the negotiations, is that companies will have to navigate a competition landscape that has the UK as a standalone regime in all respects — even if with a heavy EU influence. Dealing with both the EU and UK competition authorities on the same merger or behavioural investigation will be routine, adding costs and complexity.
In the area of merger control, companies will need to factor in interactions with the UK’s Competition and Market Authorities (CMA) as well as the European Commission (“Commission”) on deals that would otherwise have just been dealt with by the Commission alone. The UK has already been seeking to take jurisdiction over EU deals due to Brexit. The CMA sent a successful, strong and reasoned request for it to have jurisdiction in relation to the Liberty Global (Virgin Media/Mobile)/Telefónica (O2) merger — then fast tracked it into Phase 2 in the UK. The two regimes have different timetables and different standards despite, on their face, having what was previously understood to be a similarly worded substantive test (contrast the draft CMA Merger Assessment Guidelines with the judgment of the court in relation to CK Telecoms UK Investments v. Commission). The CMA is developing a reputation for being increasingly interventionist (tougher on mergers) and the risk of a deal being cleared by the Commission but blocked by the CMA (similar to Sabre/Farelogix, which was cleared in the US but blocked by the CMA) is material.
In relation to the competition enforcement landscape, it is clear that the CMA has the ambition of being viewed as a top-tier authority for global issues and investigations. We will start to see the same issue or transactions giving rise to parallel investigations by the Commission and the CMA.
With regard to antitrust litigation, separate EU Member State and English litigation regimes already exist. However, various jurisdictional and related issues will no doubt arise. In relation to mergers, challenging a decision of the CMA is likely to be quicker — even if substantively more difficult — than a challenge, say, to the EU’s General Court in relation to a Commission merger decision. One can expect an uptick in challenges to UK merger decisions before the specialist appellate court, the Competition Appeal Tribunal.
The creation of the CMA as an enhanced force on the international competition scene will undoubtedly shape UK competition law and merger control enforcement, but is likely to have wider effects.
1. Merger control
From 1 January 2021 (de facto, anything not formally notified by 23 December 2020 to the EU Commission), mergers will no longer be subject to the EU Merger Regulation’s (EUMR) “one-stop shop” principle in relation to the UK. UK turnover will no longer be relevant for determining whether a merger satisfies the EUMR jurisdictional thresholds. The CMA has demonstrated its intention to strengthen enforcement in the area of merger control. This intention can be witnessed in a variety of ways, including through its increasing proactivity in asserting UK jurisdiction over transactions. Indeed, the CMA has blocked deals where other authorities have not been able to do so — for example, see Sabre’s proposed acquisition of Farelogix, blocked two days after the deal was cleared in the US.
In cases where a merger satisfies the UK and EU jurisdictional thresholds of the EUMR, the CMA and the Commission may conduct parallel assessments of the same merger. This will result in an additional burden for the businesses involved in a merger or acquisition, given the fact that the CMA is not a “light touch” authority when it considers there is a possible issue.
In its draft CMA 2021/2022 Annual Plan (“Annual Plan”), the CMA has stated that it is expecting a significant increase in its workload from January 2021 as it acquires jurisdiction over cases that were previously subject to the Commission’s exclusive review. The CMA states:
We are ready to launch complex cartel and antitrust cases and merger investigations with a global dimension that would have previously been reserved to the European Commission. We have engaged in pre-notification discussions with parties from early autumn 2020. We already have experience of working with other competition authorities on cases with a potential impact on UK consumers. Recent examples include the investigation of the Atlantic Joint Business Agreement between American Airlines, members of International Consolidated Airlines Group and Finnair, as well as the Sabre/Farelogix airline booking merger which the CMA investigated alongside the US Department of Justice before blocking it. The CMA worked alongside other national competition authorities on the Prosafe/Floatel and McGraw Hill/Cengage mergers, both of which were abandoned.
Dual reviews by the Commission and CMA could have an impact on the deal timetable, as the UK review period is longer than that of the EU (for Phase 1: 40 working days for the CMA, compared to 25 working days under EU rules; and at Phase 2: 24 weeks for the CMA, compared to 90 working days (around 18 weeks) under EU rules (excluding extensions and stopping of the clock)). Even more important is the diverging approach to the substantive threshold for intervention not only at Phase 1 but, given recent judgments in the EU, more generally with respect to complex theories of harm.
Companies are going to have to get used to the often nuanced decision on whether, when and how to approach the CMA, given the scope for mischievous complainants to trigger a CMA investigation at a point when the merging parties can also be tied up by the UK’s worldwide freezing order — the initial enforcement order (IEO) — which is generally imposed on completed deals. A cold reading of the draft CMA Merger Assessment Guidelines will not give merging parties much confidence, given the amount of discretion these give to the CMA.
2. Antitrust investigations
From 1 January, the CMA (and the UK concurrent sectoral regulators) will only investigate suspected infringements of UK domestic competition law (i.e., the Chapter I and Chapter II prohibitions in the Competition Act 1998), and will not have the power to investigate infringements of EU competition law. The EU Commission will look at EU issues in relation to new investigations Of course, conduct in one jurisdiction can breach the competition rules in the other — as has always been the case.
The CMA has been making preparations to take on more complex cartel and enforcement cases post-Brexit, which previously fell within the remit of the Commission. In the 2020/21 Annual Plan, Andrea Coscelli, the CMA’s chief executive, expressed his determination to turn the CMA into a “robust champion for competition and for UK consumers”. The draft 2021/22 annual plan (above) also clearly states the CMA’s intention in this regard.
The risk that companies will face parallel scrutiny at the hands of both the Commission and the CMA is high. The CMA and concurrent sectoral regulators may well request information from companies where they consider that they may have jurisdiction to review UK elements of Commission proceedings, even where these have been formally initiated before the end of the Transition Period.
The leniency regimes of the Commission, the CMA and national competition authorities of Member States will remain separate. However, as there will likely be parallel proceedings — and ultimately fines — companies should bear in mind that a leniency application to the Commission alone, whether before or after the Transition Period, will not grant immunity from fines with regard to an investigation carried out in the UK. It will also not provide any protection for relevant employees and directors from prosecution under the UK’s criminal cartel offence and/or director disqualification proceedings in relation to cartel activity in the UK.
In light of the above, companies should consider the following:
- whether it will be necessary to make a leniency application to both the CMA and the Commission in all relevant cases (as with other active enforcement jurisdictions)
- if a leniency application has already been made to the Commission, whether the conduct that has been reported also concerns the UK market and, if so, carry out a risk-based analysis to inform the reporting strategy in the UK
3. Antitrust litigation
The UK courts reserve the right to depart from EU law and may well seize the opportunity post-Brexit on many occasions. From 1 January, a UK court or tribunal will not be bound by “any decisions made, on or after [the end of the Transition period] by the European Court” (European Union (Withdrawal) Act 2018, section 6), but it may have regard to them.
Nevertheless, after the end of the Transition Period, “Continued Competence Cases” (i.e., antitrust cases initiated by the Commission before the end of the Transition Period) will continue to be binding evidence of a breach of competition law under the Competition Act 1998. This means that we can still have follow-on damages cases for Commission matters initiated before 31 December 2020. This may potentially give rise to a long tail of litigation rather than a sharp cut-off in January 2021. In any event, the Commission decisions are going to be persuasive evidence of a breach and will be treated as such in the UK courts.
It will also be interesting to see how courts and Member States will view proceedings brought in the UK, as the UK will be a third country from 1 January 2021.
We expect that the UK (more specifically, England and Wales) will remain an attractive jurisdiction for litigation as a result of its numerous benefits, including the form of access, disclosure and litigation funding.