UK Government confirms significant Competition law reform: but when will the bark be followed by bite?

Back in July 2021, the UK Government launched a wide-ranging consultation proposing far reaching reform of the UK competition and consumer law regimes. As part of this, substantial changes were proposed for UK merger control and market studies, for Competition Act investigations, as well as for overhauling the consumer law regime.

The Government has now considered the many consultation responses, and published the reforms that it intends to take forward. Simultaneously, specific proposals to govern the digital technology sphere, including enhanced scrutiny of mergers involving 'Big Tech', have been consulted upon – the Government's response is expected shortly.

The reforms aim to take forward a number of recommendations made in recent years, most recently in the report commissioned from Conservative MP John Penrose (published in February 2021). This followed earlier proposals by the then-CMA Chair, Lord Tyrie, in February 2019 (proposing, amongst other matters, mandatory filing for certain categories of mergers). Whilst the UK’s competition law system is internationally well regarded, the Government concedes that the evidence on the Competition and Market Authority's (CMA's) current performance, at least in Competition Act cases, is mixed.

In this briefing, we discuss the merger, markets and competition law reforms. We will comment separately on the intended overhaul of the consumer law regime

It is worth noting at the outset that many of the reforms will require legislation to implement. The Government report does not, however, commit to any particular time-scale, promising only to identify the appropriate legislative vehicles "as Parliamentary time and priorities allow". The Government has already come under some criticism for its 'digital markets' proposals not yet having been tabled in Parliament, when the EU has already reached provisional agreement on its Digital Markets Act.

Competition practitioners therefore keenly await the Queen's speech next month for an indication of whether these reforms are indeed seen as a priority for the forthcoming legislative agenda.

Jurisdictional tests

The Government will retain the UK's current voluntary, and non-suspensory, notification regime (despite earlier calls, e.g. from Lord Tyrie, for some kind of mandatory notification system post-Brexit). The UK Government's view is that the current system works well for the most part and strikes the right balance between the protection of consumers and the regulatory burden on business.

However the jurisdictional tests will be revised as follows, in order to "target the mergers most likely to cause harm and ensure the regime remains proportionate".

A key change will therefore be that mergers involving one significant market player (most likely the acquiror, but it may be either party) with UK turnover of more than £350 million and a share of at least 33% of any plausible description of goods or services would be caught, regardless of the size of the target or the extent of any overlap. Although the voluntary nature of the regime is retained, and the thresholds have been increased from those consulted upon, large businesses and financial/private equity investors will need to give increased consideration as to whether their deals may be called in for investigation by the CMA.

The Government also states that this new threshold will complement reforms to follow its consultation on 'digital markets' which, as set out above, the Government is expected to conclude on shortly. 'Big Tech' therefore needs to watch this space a little longer to determine exactly how they may be impacted by the totality of CMA merger control reform.

Measures designed to increase speed and efficiency

In the mergers sphere, the Penrose report referred to unnecessary delays and inefficiencies, caused by the fact that, even where the CMA and the parties agree on what needs to change, they are prevented from reaching an agreement on remedies before the end of a Phase 1 or Phase 2 investigation. Penrose therefore recommended that the CMA should be permitted to accept legally-binding commitments at any stage, including at any stage of a Phase 1 or 2 merger review. Penrose also referred to the fact that there may be scope for an updated 'fast track' route for some mergers, going beyond the current arrangements.

Allowing the CMA to agree binding commitments earlier during Phase 2

The Government has therefore decided to introduce a more flexible Phase 2 commitments process, allowing the CMA to accept binding commitments at any stage of the Phase 2 process. However, this will only apply to mergers reviewed on competition grounds, and would exclude public interest interventions in media mergers (PIIN).

A new ‘fast track’ merger route

An enhanced 'fast track' procedure will give the CMA discretion to automatically refer a merger straight to Phase 2 where the merging parties have requested this. In these cases, the CMA will be able to make a Phase 2 reference without the need to consult on the reference or issue a reasoned decision. Importantly, merging parties will not need to accept that the merger may create a substantial lessening of competition (in contrast to the little-used current fast track system, where such an admission is required). Appropriate safeguards will, however, be introduced to prevent potential PIIN cases from being ‘fast tracked’ and thereby escaping proper scrutiny of the public interest issues they may raise.

In welcome news, the Government's final position differs from that consulted upon, in that there will not be a set cut-off point. Parties will be able to request a ‘fast track’ referral at any stage of pre- notification and the Phase 1 investigation.

The CMA is expected to provide further guidance on how and when it expects this new fast track procedure to be used in practice.

Given that much of the CMA's evidence gathering is often undertaken during Phase 1, a 'fast track' request may lead to an extension of up to 11 weeks (as opposed to 8 weeks during an ordinary Phase 2 investigation that was preceded by a Phase 1 investigation) to allow for evidence gathering. However, if the reference is requested early, this would be shorter overall than the current statutory timescale for Phase 1 investigations (40 working days, or approximately 8 weeks) even accounting for the existing fast-track procedure.

The positions reached on Phase 2 commitments and 'fast track' routes may help parties in complex transactions seeking to align their processes with parallel EU merger investigations, and remedies discussions across the globe.

CMA Panel decision making

The Government has decided against narrowing the Panel's role to making final decisions on theories of harm and remedies only: stating that it agrees with the importance of the checks and balances provided by an independent Panel.

However, the consultation also looked at whether there could be beneficial changes to the make-up of the Panel, e.g. to make a smaller Panel (consisting of full time members, rather than a larger group of part time members). Whilst it is not introducing any changes now, the Government will work with the CMA to consider potential non-legislative changes to the Panel recruitment process and their terms of engagement.

Importantly for business, there does not appear to be any planned watering down of the "fresh pair of eyes" approach. However, any incremental changes to the constitution of Panels over time should be carefully monitored to ensure that parties' rights of defence are clearly respected in Phase 2 merger investigations.

Other proposals dropped

The consultation sought views on a raft of other proposals, including the possibility of restricting the scope of a Phase 2 investigation by requiring the CMA to consider only those issues that have been identified at Phase 1. However, due to concerns over unintended consequences (e.g. the need for more time-consuming Phase 1 scrutiny of deals) the Government has decided not to proceed with this reform. Proposals to give the CMA greater flexibility to extend the statutory timetable (unilaterally or with the agreement of the merging parties) have also been dropped.

Two-stage system retained

The Government had proposed to overhaul the current two stage process (consisting of a primary market study stage, followed by a more in-depth market investigation) with either a single-stage market inquiry tool, or the ability to impose certain remedies at the end of a market study (rather than needing to proceed to a market investigation first).

However, given the perceived downsides of each option (e.g. less flexibility in 'smaller' cases, and the potential loss of procedural safeguards around remedies), the current system will be retained. This means that the CMA's power to impose binding remedies will remain reserved to in-depth market investigations (although see below re: the position where remedies are offered).

...with certain amendments

Nevertheless, some changes will be made in order to:

• Enable the CMA to accept (as opposed to impose) binding undertakings from businesses at any stage in market studies and market investigations.
  
  
• Provide the CMA with greater flexibility to define the scope of market investigations in order to target investigations more easily.
  
  
• Remove the requirement to consult on a market investigation reference within the first 6 months of a market study.
  
  
• Permit the CMA to require 'implementation trialling' of consumer facing remedies to determine their final format. Businesses should also have the opportunity to comment on the proposed design of the trial, as they would any other remedy the CMA may impose.
  
  
• Permit the CMA to adopt an improved remedy for a period of up to 10 years following the finding of an adverse effect on competition (without requiring a fresh market investigation) where the CMA believes that a remedy is not achieving its intended effects. However, this will be subject to a 2 year cooling-off period starting at the end of a remedy review (in which the CMA may not, of its own volition, conduct a further review of the same remedy). As with any proposed remedy, the CMA would be required to consult affected businesses before reaching a final decision on whether to revise the remedy (and all remedies decisions are appealable to the UK Competition Appeal Tribunal).

Given the nature of market inquiry cases (covering entire industries, with the potential for over-enforcement), Government does not intend to give the CMA the power to impose interim measures.

Whilst many of these aspects will be welcome, there remains some uncertainty about how the ability to amend remedies will work in practice. Where there are clear market developments that make an amendment non-controversial, this change will no doubt improve the system to both the benefit of parties and the CMA. However, it remains to be seen whether the CMA will seek to use the system in order to avoid a full scale analysis of the market in question.

Jurisdiction: 'effects' doctrine for anti-competitive agreements

Currently, both the Chapter I and Chapter II prohibitions require two jurisdictional tests to be met before anti-competitive agreements or conduct are subject to UK competition law. First, an effect on trade within the UK is required. Second, the agreement must have been, or intended to be, implemented in the UK (for the Chapter I prohibition) or the business carrying out the conduct must have a dominant position within the UK or any part of it (for the Chapter II prohibition). By contrast, both the US and EU competition regulators can look at conduct occurring outside of their jurisdictions, but which nonetheless has an impact on their markets and consumers (a so-called "effects" doctrine).

Recognising that, with increased globalisation, agreements implemented outside of the UK may harm competition within the UK, the Government has decided to bring the UK jurisdictional test, at least for anti-competitive agreements (i.e. the Chapter I prohibition), in line with other international regulators.

However, the Government does not see an as-compelling reason to update the jurisdictional test for the Chapter II prohibition (abuse of dominance), and has therefore decided to leave it un-changed.

Stronger evidence gathering powers

The Government has decided to adopt a raft of measures to strengthen the CMA's (and concurrent regulators') powers to investigate. A significant change for business, and in particular for in-house lawyers dealing with document retention policies during competition investigations, is the introduction of a new duty to preserve evidence, underpinned by civil penalties.

• Document preservation. Businesses are currently only required to preserve evidence in a civil Competition Act investigation if that evidence falls within the scope of an information gathering notice or other investigative measure (such as a dawn raid). However, the Government has decided (in line with equivalent provisions governing criminal cartels) to introduce a general duty to preserve evidence where the person: (i) knows there is an ongoing investigation; or (ii) suspects that an investigation is likely to be carried out. Civil, but not criminal, penalties for breaches of this obligation will be introduced.
  
  
• Interview powers. The CMA's powers to compel interviews as part of Competition Act investigations will be broadened to align with existing Enterprise Act powers (i.e. where the CMA can require an interview from an individual regardless of their connection to a particular business under investigation).
  
  
• Domestic inspections. Powers to ‘seize-and-sift’ evidence when inspecting domestic premises under warrant (as is currently the case for inspecting business premises under warrant) will be introduced. The change has been brought about by increasingly flexible working patterns post-pandemic.
  
  
• Access to file and confidentiality rings. The Government will proceed with legislative changes to support a more standardised approach to the use of confidentiality rings, and introduce civil penalties for breaches of confidentiality ring terms.
  
  
• Documents stored remotely. This point was not initially consulted upon. However, the Government intends to strengthen the CMA’s powers to obtain electronic information stored remotely (for example in the cloud) when conducting an investigation under warrant. Presumably this is aimed at clarifying any ambiguity over the location in which remote/cloud documents are deemed to be stored, and hence which powers under the Competition Act 1998 apply.
  
  
• Algorithms. Also not forming part of the original consultation, the government is considering strengthening the CMA’s powers to test and verify whether the use of algorithms by companies complies with competition law. No further details have yet been given, and so potentially affected businesses await guidance.

Stronger enforcement powers

• Increase in level of administrative penalties.
  • The Government will increase the potential level of penalties on businesses for failure to comply with an investigative measure (e.g. failing to comply with an information request) with fixed penalties of up to 1% of a business’ annual turnover, as well as the power to impose an additional daily penalty of up to 5% of daily turnover while non-compliance continues.
  • The same civil penalties as above will also apply to businesses where they (i) supply 'false and misleading' information (although seemingly only in response to an investigative measure, and not where provided voluntarily); or (ii) conceal, falsify or destroy evidence.
  • Where a natural person (e.g. a company director) conceals, falsifies, or destroys evidence, or provides false or misleading information, the CMA will be able to impose fixed penalties of up £30,000, as well as the power to impose an additional daily penalty of up to £15,000 while non-compliance continues. (These are the same thresholds that currently apply to breaches of competition investigative measures by businesses).
• Increase in scope of penalties. Powers will be introduced to impose civil penalties on companies that fail to comply with the CMA’s directions, orders, undertakings, commitments or interim measures – in line with interim enforcement orders in merger investigations. The penalties will be capped at 5% of annual turnover, with an additional daily penalty of up to 5% of daily turnover while the non-compliance continues. These penalties, and their level, will be appealable.

These changes are very much in line with the recent momentum of the CMA in imposing administrative penalties as a matter of course where it does not consider parties to have fully complied with a measure, and bring the UK position (in terms of level of penalty) more in line with the EU.

Strengthening the CMA's interim measures powers

The CMA has powers to impose ‘interim measures’ in Competition Act investigations, which allow it to take action against certain conduct before concluding an investigation where it considers it necessary to act to prevent significant damage to a person, a category of persons or to protect the public interest. These measures can, in certain cases, have a profound impact (even if only temporarily) on the way in which businesses can operate. However, the use of such measures has been very limited in the UK up to now.

The Government has now decided to change both the appeal mechanism against interim measures decisions, and requirements to give the relevant party(ies) access to file – presumably in the hope that their use will increase.

• Appeals: The Government intends to amend the framework so that appeals against interim measures decisions are determined according to judicial review principles (rather than full merits appeals). This is because:
  • In the Government's words, "speed matters in interim measures"; and
  • The CAT’s assessment of whether interim measures are necessary should not be given greater weight than the assessment of the regulator/the CMA given: (i) it is not necessary to come to a definitive view on the competition law prohibitions in order to apply interim measures; and (ii) rather, a decision on whether to apply interim measures involves a significant degree of technical judgement, e.g. balancing the likely harms of the conduct in question against the costs to businesses to determine whether interim measures are necessary and proportionate.
    
    
• Access to file: In line with its previous proposals, the Government has decided to amend the rules governing how the CMA provides access to its case file when taking interim measures decisions. Whilst the Government is not explicit about the exact way it will do this, it does say (in line with the consultation) that "it is entirely appropriate for the CMA to provide an affected party with the reasons for its decision without needing to necessarily provide access to all of the underlying documentation and other evidence". This is due to the time consuming nature of the access to file stage and the view that, if the interim measures powers are too burdensome to use, then their purpose is undermined.

Whilst, in many cases, a party may be able to fully understand an interim measures decision without full access to file (and may indeed have much of the evidence in its own possession), it will be important for rights of defence purposes that the CMA fully considers requests in individual cases for underlying evidence where needed.

Revising immunity for Chapter II conduct of minor significance

A business that infringes the Chapter I prohibition, except for price-fixing agreements, currently has immunity from financial penalties when the parties to the agreement have a combined turnover of £20 million or less (referred to as a ‘small agreement’). A business that infringes the Chapter II prohibition currently has immunity from a financial penalty where its turnover is £50 million or less (referred to as ‘conduct of minor significance’).

The Government will reduce the turnover threshold for immunity from penalties for conduct of minor significance from £50m to £20m, in order to align the two immunity thresholds.

Decision making in Competition Act cases

The Government intends to remove the current requirements in the CMA Rules on the decision makers in Competition Act investigations (currently there needs to be at least two fresh decision makers with no prior involvement in the case). Instead, Government supports the CMA having more autonomy to determine the most effective internal decision-making processes for Competition Act investigations.

Whilst this may lead to internal efficiencies for the CMA, the intended change raises concerns as to whether/how proper decision making can be ensured across the board, and how it will adequately protect against risks of bias. Whilst the Government notes that appeals can be made (and decisions corrected) by the CAT, this seems an imperfect safeguard, without proper consideration being given by the CMA as to the appropriate decision makers in a given case. Watch this space for procedural challenges from parties, as and when this change is implemented.

Judicial scrutiny

Perhaps one of the most significant aspects of the consultation concerned the debate over the appropriate level of judicial scrutiny in appeals of Competition Act decisions. In recent years there have been calls in the Furman Review, the Penrose Report, and Lord Tyrie’s reform proposals for the standard of review in appeals against Competition Act investigations (currently 'on the merits' as opposed to judicial review) to be reconsidered. This was despite the Government concluding in a previous 2011 consultation that the standard of review for a Competition Act appeal should remain as a full 'on the merits' appeal: a view that was subsequently shared by the Competition Appeal Tribunal itself in a response to the Government in 2013.

The Government, with strong support from the majority of stakeholders, has decided to retain the 'on the merits' standard in appeals against Competition Act infringement decisions, and also decisions on non-compliance with CMA investigative measures and remedies. The Government is however considering whether any reform of the CAT's processes is needed, and a separate review of CAT's rules is underway.

International cooperation

The Government recognises that cooperation with the CMA's international counterparts is vital in order for the UK to realise its ambitions to take a leading role in global competition enforcement and policy.

The Government now plans to update legislation to ensure that UK competition (and consumer protection) authorities can share information more easily with international partners, while still ensuring that confidential business information is protected by both the UK and overseas authority. A simplified approach will be introduced for instances where an international cooperation arrangement is in place. In each case, the CMA (or concurrent regulators) will need to consider (in line with the domestic position) whether there are any public interest reasons why information should not be shared outside of the UK, and whether the legitimate interests of any individuals or businesses may be significantly harmed.

The Government will also permit the CMA (and concurrent regulators) to use their compulsory information gathering powers to obtain information on behalf of overseas authorities – in each case subject to Ministerial approval. The Secretary of State for BEIS will be able to provide general consent for the provision of assistance which is deemed to be in the UK’s interest (e.g. if requests are made in accordance with a specific international agreement or for a specific purpose). Again protections in respect of public interest and the protection of confidential information will be put in place.

Whilst these proposals will likely be equivalent to the pre-Brexit position on the sharing of information within the EEA, it will be important for parties to any type of competition investigation to be clear on where their information might be shared more widely around the globe.

Leniency applicants and whistle-blowers: status quo maintained

The Government consulted on a number of proposals to encourage businesses and individuals to come forward with details of suspected anti-competitive behaviour, including considering: (i) whether the increasing prevalence of private damages may be disincentivising leniency applications and, if so, how this might be addressed; and (ii) the merits of having an absolute prohibition on the disclosure of a whistle-blower’s identity unless the CMA relies on their evidence as part of its infringement decision.

However, the Government has decided not to introduce any reform at this stage because it believes: (i) there is mixed evidence on the extent to which leniency programmes are frustrated by the private damages regime – and more time is needed to assess the effects of the increased protections for leniency applicants introduced in 2017; and (ii) only limited evidence and feedback was received on the need to protect individual whistle-blowers' identities further than is currently the case. The Government will keep both points under review.

In our experience, however, potential damages actions are very much at the forefront of decisions over applying for leniency. This, coupled with the proposals for exemplary damages to be brought back, albeit only outside of collection actions (see below), in some cases further complicate the decision for business in assessing the cost-benefit of leniency.

Settlement and voluntary redress: status quo maintained

The Government had proposed to introduce an additional settlement procedure for Chapter II investigations which would allow the CMA and the business under investigation to enter into an 'Early Resolution Agreement'. (Importantly, under the proposals, this would not have required an admission of liability as is the case with settlement currently). However, the Government has decided not to implement such a change, on the basis that it is not clear that an increase in the number of cases potentially brought would represent more effective enforcement.

The Government has also been seeking ways to streamline the existing settlement processes (i.e. the process for agreeing commitments, and for settling a case early in exchange for a reduction in the level of the fine imposed). However, given the CMA updated its guidance on settlement procedures on 10 December 2021 (the CMA will now only agree to settlement if the business agrees that it will not subsequently appeal the infringement decision, including any financial penalty imposed) the Government considers that, rather than introducing further rules into primary legislation at this time, the changes the CMA has made should be given an opportunity to take effect.

In a similar vein, the Government will not introduce increased restrictions on the disclosure in private damages claims of documents prepared by a business as part of operating a voluntary redress scheme. It is not thought that protections (over and above the current protections for leniency statements and settlement submissions) would have a significant impact on the take-up of voluntary redress schemes.

Other UK competition law reforms

Private claims: exemplary damages and declaratory relief

A requirement of the EU Damages Directive was that damages for breach of competition law should result in full compensation, but not ‘overcompensation’. When the UK implemented the EU Damages Directive in 2017, awards of exemplary damages were therefore prohibited in competition law claims. However, in the post-Brexit landscape, the Government intends to give the courts and CAT the discretion to award exemplary damages in competition law claims – representing, it says, an additional deterrent for particularly egregious breaches of competition law. Exemplary damages will not however be permitted in collective proceedings; exemplary damages were prohibited in these cases before implementation of the EU Damages Directive.

The Government also proposes to permit the CAT to grant declaratory relief, i.e. a legally binding statement on the application of competition to the given set of facts.

Amending the Serious Organised Crime and Police Act 2005 (SOCPA) so that the CMA is a ‘specified prosecutor’ (and can use the SOCPA ‘assisting offender’ process).

The Government intends to designate the CMA as a specified prosecutor under SOCPA so that, in criminal cartel cases, a defendant who wishes to assist the prosecution but does not qualify for a ‘no action’ letter is provided with greater certainty regarding the applicable procedure and the benefit of the accompanying statutory safeguards. 

Government’s strategic steer to the CMA

The Government has traditionally provided the CMA with a high level ‘strategic steer’ issued by the Secretary of State for BEIS. These steers are issued once each Parliament and set out the Government’s expectations and priorities for the CMA’s role in competition policy. The steer is not binding, but the CMA takes it into account when assessing its priorities.

Government now intends to provide more regular strategic steers to the CMA (likely between one and two updates per parliament). Some parts may even be updated more regularly. Future steers will also provide "greater clarity" about the Government's expectations and priorities. Government will expect the CMA to be clear on how it is delivering against the priorities and expectations set by Government.

Whilst there is a limit as to how far this can impact the independence of the CMA, given that the steers would remain non-binding, there is a risk that the need for the CMA to report on its delivery, and the increased detail and frequency of updates, could in practice reduce the ability of the CMA to fully retain its operational independence.

Duty of expedition

Although not consulted upon, the Government intends to introduce a new statutory duty of expedition (which was previously advocated for by Lord Tyrie). This reflects the Government's desire for faster decision making.

Although timescales seem to be generally improving, given the still lengthy nature of Competition Act investigations in particular, we can expect this new duty to be raised in appeals – either in seeking reductions in penalties for lengthy cases, or arguing that rights of defence have been breached in terms of perceived 'short cuts' taken – although any likelihood of success is far from clear.

A new pro-competition strategy for the UK

The CMA published its first 'State of UK Competition' report in November 2020. The Government considers these types of reports to be valuable and notes that the CMA will prepare further reports in due course. However, in a nod to industry concerns over increased burden, the Government does not intend to give the CMA powers to gather evidence purely for the purposes of these reports.

As explained above, many of the reforms will require legislation to implement. The Government commits only to identify the appropriate legislative vehicles "as Parliamentary time and priorities allow". Unless priority is given to these changes in the upcoming Queen's speech, it may be mid-2023, or potentially longer, before the full suite of changes comes into force. Indeed, press reports have suggested that the complementary digital markets amendments will not come into force until at least 2023.

There are, however, certain changes that can be made without requiring legislation. We would expect these to be taken forward much sooner. Examples will likely include: (i) increased international assistance pursuant to cooperation agreements; and (ii) potential changes to the CMA Panel constitution and decision making processes across Phase 2 merger, markets and Competition Act cases.

As for the wider, legislative reforms, watch this space. The Queen's speech will be delivered on Tuesday 10th May 2022.