As the charts below show, enforcement by concurrent competition agencies has increased substantially since the ERRA came into force.[1] From 2015 to 2019, sectoral regulators launched 13 new investigations, issued three infringement decisions, and settled two cases with commitments.[2] The growth of complaints (averaging 17 per year in the past two years) may signal confidence among stakeholders in the ability and willingness of sectoral regulators to take action. Only two sectoral regulators – the Northern Ireland Authority for Utility Regulation and NHS Improvement – are yet to open CA98 investigations.
The combined enforcement activity of the nine sectoral regulators, though, is still significantly outpaced by the CMA. In 2017/18, the CMA opened 10 new CA98 proceedings and issued seven infringement or commitment decisions.[3] It is not, however, solely the quantity of cases that matters. Recent actions by concurrent enforcers raise important points of principle and could have a significant legal and commercial impact.
In August 2018, Ofcom imposed a £50 million fine on Royal Mail for abusive discrimination – the second largest fine in UK competition proceedings to date, after the CMA’s (annulled) decision in Pfizer/Flynn. This case raises difficult legal questions, including whether conduct that is threatened but not implemented can give rise to an abuse, and the extent to which competition agencies have to assess pricing practices under the as efficient competitor test. How these questions are answered before the CAT will affect the development of UK competition law in general, not only in the postal sector.
In February 2019, the FCA imposed its first fine for competition violations on three asset managers. This case applied the principles of information exchange to bidding intentions in upcoming IPOs and placings. Aside from developing the law, the FCA viewed this decision as important to maintain the “credibility of the book-building process as a way to raise capital for companies,” particularly since “over £31 billion was raised on just the London Stock Exchange (LSE) markets in new investment between 2015 and 2018.” The FCA also provided a reasoned ‘no grounds for action’ decision in respect of certain information exchanges that were not liable to distort competition, thereby providing useful guidance for companies and their advisors.[4]
The Future
Concurrent enforcement has the advantage of bringing together the competition experience of the CMA with the specialist knowledge of the sectoral regulators. It has been strengthened by the UK Competition Network (UKCN), which helps the CMA and sectoral regulators to share expertise, coordinate investigations, and manage resources, including arranging inter-agency secondments. Since 2015, the CMA has published an annual concurrency report to monitor progress.
In its response to BEIS’ consultation, the CMA pointed to the increased volume of new cases launched by sectoral regulators since the ERRA came into force, arguing that regulators are not “defaulting to their regulatory powers where competition enforcement powers could be used.”[5] The CMA also noted a “step change” in its cooperation with sector regulators since the ERRA reforms. Aside from enforcement proceedings, sectoral regulators collaborate with the CMA in merger and market investigations (including energy and retail banking), as well as carrying out their own market studies.
Looking ahead, concurrent antitrust enforcement may become even more prominent following the UK’s withdrawal from the EU, particularly for cases that might otherwise be investigated exclusively by the European Commission.[6] BEIS is due to release the results of its consultation later this year.
[1] Based on data from the CMA’s annual concurrency reports. ‘Interventions’ include infringement decisions and commitment decisions.
[2] In addition, the CMA issued two infringement decision in the regulated sectors, including prohibiting restrictive agreements for parking arrangements at Heathrow airport (with assistance from the CAA) in 2018, and issuing an infringement decision in relation to conduct in the ophthalmology sector in 2015.
[3] This includes two commitment decisions and five infringement decisions: CMA Annual Report and Accounts 2017/18 (year ending 31 March 2018).
[4] See https://www.fca.org.uk/news/press-releases/fca-issues-its-first-decision-under-competition-law; and Case CMP/01-2016/CA98, Anti-competitive conduct in the asset management sector, FCA decision of 21 February 2019, paragraph 5.83 and Part 15.
[5] Modernising consumer markets Green Paper: CMA response to Government consultation, 17 July 2018.
[6] Whish, The United Kingdom’s ‘enhanced concurrency regime’ Competition Law Journal, 2018, Vol. 17, No. 2.