Competition and consumer protection

The Competition and Markets Authority (CMA) has published its keenly awaited Green Agreements Guidance, explaining how collaborations between competitors to promote environmental sustainability will be treated under domestic competition laws prohibiting anticompetitive agreements.

In the spring, we highlighted this briefing, which explored the draft guidance and summarised the basic framework by which the CMA will approach these collaborations and the key differences to the approach of the European Commission. In the finalised guidance, the CMA preserves much of that original drafting and continues to express a determination to ensure that competition law does not prove a barrier to legitimate green collaborations between competing firms. For example, it continues to demonstrate a more permissive approach to agreements that combat or mitigate climate change than the European Commission.

In addition, the CMA introduces some new, welcome clarifications. Of particular interest to investors and asset managers, the guidance acknowledges that agreements between shareholders to vote in support of corporate policies that pursue green goals (or against policies that do not) will be unlikely to infringe competition law.

For more detail on the CMA's core guidance and the changes from the draft, please read our latest briefing.

The Digital Markets, Competition and Consumers Bill is currently awaiting its final Commons stages before being considered by the House of Lords – and is not expected to become law until 2024. However, it is a far-reaching piece of legislation, which will make important changes in the following areas:

• Digital markets, where the Bill will give the Competition and Markets Authority (CMA) new powers to regulate "Big Tech". See our briefings for more detail on the new regime for scrutiny of Big Tech and what recent CMA activity tells us about the rationale for the new legislation.
  
  
• Competition law and merger control, where the Bill will make a series of changes designed to strengthen the UK's existing regimes in these areas.
  
  
• Consumer protection, where the Bill will introduce a significantly tougher enforcement regime, enabling the CMA to impose fines of up to 10% of worldwide turnover. See our briefing for more detail.

In addition to the major reforms to the UK's consumer protection regime underway as part of the Digital Markets, Competition and Consumers Bill (see above), the Government is consulting on the following:

• additional measures to tackle hidden fees, drip pricing and fake reviews, which have particular relevance for online businesses;
  
  
• whether online platforms such as Amazon or eBay should have to do more to tackle rogue traders using their marketplaces;
  
  
• possible extensions to consumers' rights to claim damages for unfair practices; and
  
  
• a range of other measures which are also relevant to bricks and mortar retailers, including rules on unit pricing and price promotions.

For more detail, see our briefing.

The long-awaited Public Procurement Bill received Royal Assent on 27 October 2023. The new regime will replace the UK's existing EU-derived procurement regimes and, in some cases, will bring about material changes to the status quo.

Key objective and framework

Through the new Public Procurement Act 2023, the UK Government aims to achieve a simpler, more effective public procurement system. It establishes a single framework for the award of public contracts, utilities contracts, concession contracts, and defence and security contracts by contracting authorities (to replace the four sets of existing EU-derived Regulations) – albeit differences in approach remain depending on the type of contract in question.

National security

In a major change to the existing regimes, the Act introduces new protections against national security risks in public contracts. A National Security Unit for Procurement will be established with powers to investigate suppliers who may pose a risk to national security, and to assess whether such suppliers should be barred from participating in public procurement contracts related to defence and national security (such suppliers would retain the ability to bid for non-sensitive contracts). The list of mandatory grounds for exclusion will also be expanded to include, for example, being found liable for a competition law infringement.

SMEs – making it easier to do business

The Government also aims to make it easier for small and medium-sized enterprises (SMEs) to do business with the public sector. Contracting authorities will, once the regime comes into force, be required to assess the barriers that SMEs face throughout a procurement lifecycle, and to consider what can be done to overcome them.

What's next?

Watch this space for our upcoming briefing on the detail of the new Act. However, for now, the status quo is maintained. The new regime is not expected to come into force until at least October 2024, given the need for secondary legislation to be passed and the Government's promise of a six month "go live" notice.