The CMA has published its Annual Report on the UK’s concurrency arrangements, which came into effect in their current form in 2014. Eight sectoral regulators have competition law powers in the UK, in addition to the CMA as the primary competition authority.
These regulators have powers in their sectors to (i) apply provisions of the Competition Act 1998 relating to anti-competitive agreements and abuses of dominance, and (ii) conduct market studies and make market investigation references to the CMA. The CMA can also apply competition powers in the regulated sectors “concurrently” and so the regime imposes obligations on the sectoral regulators and CMA to consult on allocation of cases and other matters.
The reforms introduced in 2014 sought to encourage greater use of competition law powers (as opposed to ex ante regulatory powers) in the regulated sectors, and requires the CMA to report annually on how those powers have been used. The 2023 Annual Report, which considers 1 April 2022 to 31 March 2023 (the Reporting Period), reveals the following observations.
- The number of Competition Act 1998 cases remains consistent. There were seven cases ongoing at the start of the Reporting Period, and a further five launched during the Reporting Period. This is consistent with previous years. The CMA and sectoral regulators also reported a total of 12 ongoing investigations in the regulated sectors each year since 2018/2019.
- The majority of concurrent Competition Act 1998 cases are being conducted by the CMA. Of these 12 Competition Act 1998 cases, eight are being carried out (or were carried out) by the CMA, two by the FCA, one by Ofcom and one by the ORR.
- Use of information gathering powers has increased. The CMA and sectoral regulators used formal information gathering powers and/or conducted dawn raids in almost all open cases during the Reporting Period (11 out of 12). This suggests an increase in activity compared with the previous two periods, during which investigation powers were used in five cases (2021/2022) and three cases (2020/2021) respectively, possibly reflecting the impact of the COVID-19 pandemic.
- Digital markets remain a priority for enforcement. Of the 12 Competition Act 1998 cases, six concerned digital markets, involving Amazon, Apple, Google or Meta.
- The use of market studies and market investigation powers is growing. For the first time, the FCA and Ofcom used their powers under the Enterprise Act 2002 to conduct market studies and make two market investigations. Ofcom launched a market study into the supply of cloud infrastructure services in October 2022. The FCA launched a market study into the supply of wholesale data (including benchmarks for asset classes, credit ratings data) in March 2023. Both are ongoing. Previously, the FCA has used sectoral powers (rather than competition law powers in the Enterprise Act 2002) to conduct market studies.
- Sectoral regulators continue to rely on regulatory powers to promote competition. Sectoral regulators are required to consider whether the use of ex post competition law enforcement would be more appropriate before turning to sector-specific regulatory powers. In these cases, they are required to explain why. This is referred to as the Duty of Primacy. Six regulators decided to use sector-specific regulatory powers rather than competition law on a total of 16 occasions over the Reporting Period.
- Interagency cooperation continues. Although few figures are provided, the report describes the CMA and sectoral regulators exchanging“key information and comments…including emerging thinking and draft decisions”, engaging in “constructive discussions”regarding the allocation of concurrent cases and assisting each other with casework (including mergers, which fall outside the scope of the formal concurrency arrangements).
- The cost of living crisis and environmental sustainability are areas of focus. The annual report refers to continued efforts in these areas, given that goods and services supplied in regulated sectors account for a material portion of household budgets, and that the UK is seeking to transition to a net-zero economy. The report does not provide more specific detail on this work.
Taken as a whole, the Annual Report shows that some sectoral regulators continue to apply competition powers and that overall activity levels generally remain higher than they were before the 2014 reforms. That said, several regulators have rarely used their powers and the CMA is currently the most active authority in the regulated sectors. Looking ahead, the CMA has referred to the 10th anniversary of the concurrency regime next year as an opportunity to review “more broadly” the UK’s concurrency arrangements. In particular, it will consider “the extent to which the overall objectives of the concurrency regime, and the promotion of competition in the regulated sectors, have been achieved.” The details of this review are yet to be announced.
 The Civil Aviation Authority; Office of Communications (Ofcom); Gas and Electricity Markets Authority; Financial Conduct Authority (FCA); Payment Systems Regulator; Office of Rail and Road (ORR); Water Services Regulation Authority; and Northern Ireland Authority for Utility Regulation. There is no longer a regulator in the healthcare services sector with concurrent competition law powers.