United Kingdom

On 11 November 2020, the Court of Appeal handed down its judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on-damage actions. The judgment concerns an appeal relating to a preliminary issue arising in seven claims for damages following on from the 2016 Commission Trucks settlement decision (the Settlement Decision). The Court of Appeal held that the five truck manufacturers could not deny facts they had admitted in settling with the Commission – facts that were subsequently recorded in the Settlement Decision.

On 6 November, the CMA published new draft guidance on jurisdiction and procedure in UK merger cases (Draft J&P Guidance) and on the CMA’s mergers intelligence function. On 17 November, it published new draft guidance on the substantive assessment of mergers in the UK (Draft Substantive Guidance). The draft sets of Guidance incorporate developments in the case law, reflect the evolution of the CMA’s policies and procedures, and take account of changes in the legal framework concerning public interest mergers. Together, they confirm the CMA’s expansive approach to asserting jurisdiction and reinforce a more interventionist and less formalistic approach to assessing mergers, especially in digital markets, that has been evident in the run-up to Brexit.

On 15 October 2020, the Competition and Markets Authority (CMA) revoked a £300,000 penalty it had imposed on JD Sports Fashion plc for breach of an interim enforcement order (IEO) issued in connection with JD Sports’ completed acquisition of Footasylum plc. The penalty was withdrawn “[i]n light of issues raised on appeal.” This is the first time that a CMA procedural fine has been revoked or overturned on appeal. On 19 and 20 October 2020, the Competition Appeal Tribunal (CAT) heard Facebook’s appeal against the CMA’s refusal to grant a derogation from an IEO issued in connection with Facebook’s completed acquisition of GIPHY, Inc. This article considers potential implications of these cases for future UK mergers.

On 2 September 2020, the US Department of Justice Antitrust Division (DoJ), the US Federal Trade Commission, the UK Competition and Markets Authority (CMA), the Australian Competition and Consumer Commission, the New Zealand Competition Commission, and the Canadian Competition Bureau signed a framework agreement to improve cooperation in competition investigations.

On 1 September 2020, JD Sports Fashion and Pentland Group Limited filed an appeal against a CMA decision of 29 July 2020 to impose a penalty of £300,000 on the parties for failing to comply with the requirements of the CMA’s initial enforcement order issued in the context of the completed acquisition by JD Sports of Footasylum plc.