Competition/antitrust

In a nutshell

On 1 April 2014, the Competition and Markets Authority (CMA) was established as the UK government’s main competition regulatory body, taking over many of the former functions of the Office of Fair Trading and the Competition Commission. The CMA works closely with industry-specific regulatory bodies, such as Ofcom for the media and telecoms industry. With a higher budget and greater resources available than ever before, the CMA was created in order to strengthen business competition in the UK and crack down on anti-competitive activities. 

It is the job of the UK regulatory authorities to ensure that markets function effectively on the basis of fair and open competition. Following Brexit, the rules in the UK and EU remain substantially similar, since out of all areas of law in the UK, competition law has been most closely intertwined with the law of the EU. While most competition rules are enshrined into domestic law, the changing relationship between domestic and European competition authorities as Brexit takes effect is likely to cause much head-scratching among businesspeople, Eurocrats and lawyers alike. Allen & Overy’s article on antitrust and Brexit suggests that companies operating in both the UK and the EU are “subject to parallel regimes, with the CMA having the ability to review (potentially identical) transactions and behaviour alongside the European Commission.” 

Competition authorities have extensive investigative powers – including the ability to carry out dawn raids – and can impose hefty fines. The CMA continues to become more proactive and litigation-minded, while the European Commission – the regulator dealing with matters affecting EU countries – readily doles out big fines where necessary. 

Competition

What lawyers do

  • Negotiate clearance for acquisitions, mergers and joint ventures.
  • Advise on the structure of commercial or co-operation agreements to ensure they can withstand a competition challenge.
  • Deal with investigations into the way a client conducts business.
  • Bring or defend claims in the Competition Appeal Tribunal (CAT).
  • Advise on cross-border trade or anti-dumping measures (preventing companies exporting products at a lower price than normally charged in the home market).
  • Regulators investigate companies, bring prosecutions and advise on the application of new laws and regulations.

Realities of the job

  • You won’t get much independence; junior lawyers work under the close supervision of experienced partners. In the early days, the job involves a great deal of research into particular markets and how the authorities have approached different types of agreements in the past.
  • You need to be interested in economics and politics.
  • The work demands serious academic brainpower twinned with commercial acumen.
  • As a popular area of practice it’s hard to break into. Work experience with a regulator or at the European Commission in Brussels will enhance your prospects.
  • Advocacy is a relatively small part of the job, though you could end up appearing in the High Court or the CAT.
  • Working an at international law firm you will travel abroad and may even work in an overseas office for a while, perhaps in Brussels. Fluency in another language can be useful. There is also a trend for lawyers to switch between private practice and working for the regulators.

Current issues

October 2023 

  • The Covid-19 pandemic saw the European Commission adopt a ‘temporary framework’ to enable member states to utilise the “full flexibility foreseen under State aid rules” to best mitigate the economic fallout from the pandemic. Domestically, the British government relaxed certain competition laws in relation to essential products. Laws regarding the sharing of stock level data, distribution depots, delivery vans, and staff pooling between supermarkets were relaxed to allow retailers to collaborate in their Covid response. The Commission has since announced it will begin to phase out this framework. Member states have been given until 31 December 2022 to provide specific investment measures, and until 31 December 2023 to provide solvency support measures.  

  • In its annual plan for 2022/23, the CMA addresses the cost of living crisis, claiming that it will crack down on “unfair practices” that will ultimately affect “the lowest income households and vulnerable customers.”  

  • In May 2021, the CMA issued an open letter to the package travel sector, reminding companies of their legal requirement to clearly disclose refund options. In February 2022, in response to a request from the CMA, the High Court declared that Teletext Holidays and Alpharooms.com had failed to comply with instructions set out by the Package Travel and Linked Travel Arrangements Regulations 2018. This is part of the CMA’s efforts to restore confidence in holidaymakers seeking to book package holidays following mass cancellations as a result of Covid-19 restrictions.

  • In December 2020, the US Federal Trade Commission dealt a hefty blow to Facebook through its request that the company sells WhatsApp and Instagram and the FTC is asking the Court to require the company seek prior approval for further acquisitions. It argues that Facebook’s policy of acquiring rival companies has strangled competition across the globe, with the company having a monopoly over social networking. The case is still pending, following Facebook’s unsuccessful attempt to have the motion dismissed. Fact discovery ended in May 2022, with fact discovery looking to close in January of 2024. 

  • The CMA, after its in-depth investigation launched in 2021, forced Facebook to sell Giphy, the popular and integrated gif service. The £290 million deal raised a number of concerns, and the CMA has recommended it sells the company in its entirety. This is the first instance we’ve seen of a regulating body stepping in to undo a Big Tech deal. Despite the social media giant accusing the CMA of being “inconsistent” and “irrational,” the firm sold Giphy to Shutterstock in early 2023 at a loss of over £210 million.

  • Away from specific cases, the CMA’s annual impact assessments continue to highlight its new powers, such as new responsibilities to investigate more global cartel, antitrust and merger cases. It has also set up the Digital Markets Unit and established the Office for the Internal Market. The latest impact assessment calculated that for every £1 the CMA spent on operating costs, it resulted in £22.50 average benefit to customers across the last three years. 

  • The Digital Markets Unit now holds responsibility for enforcing the UK’s new digital regulatory regime, with the aim of promoting “greater competition and innovation” in digital markets and protect “consumers and business from unfair practices” online. 

  • The UK formally left the EU when the Transition Period ended on 31 December 2020. The Trade and Cooperation Agreement (TCA) that came into effect in May 2021 defines both trading relationships and competition arrangements.  One big takeaway is that the UK no longer has to interpret competition law consistently with European Court case law; however, it is required to ensure consistency with it and decisions reached before 1 January 2021 by the Commission unless it is considered “appropriate” not to in specific circumstances. 

  • By assessing all mergers within a 40-day limit, the CMA is tightening its grip on merger control. Increased efficiency means it now clears more cases in phase one without the need for the more intensive second phase, and a number of related legal challenges have developed into case law.  

  • Globally, Big Data and its monopolisation by tech giants continues to be an area of concern. The current heads of the European Commission have tech giants firmly in their sights, with regulations being sought to curtail the influence of these behemoths. Primary concerns are the use of data collection; the power that algorithms have on global markets, particularly concerning pricing decisions, and the potential for their abuse; and the growing global trend of “killer acquisitions,” whereby tech giants swallow up smaller start-ups, acquiring their technology and effectively removing competitors. 

  • The CMA’s preliminary investigation into music streaming services estimated that Spotify holds around 50% of the market, with Spotify, Amazon, Google and Apple collectively commanding 95-100% of the market’s revenue. So far, the authority sees no cause for concern, noting that the aforementioned platforms’ shares of the market were not causing harm to consumers or excess profits. The final report was released in late 2022. 

  • 2022 continued the trend of prosecution in the financial services sector. Following the fallout from the 2008 financial crash and LIBOR scandal, antitrust authorities are now seeking to remedy what they see as “historic under-enforcement” in the sector. As such, a new statutory provision enables the UK’s Financial Conduct Authority (FCA) to exercise existing competition law enforcement powers with a focus on financial services. In its first formal decision under these new competition enforcement powers, the FCA in 2019 found that three asset management firms had breached competition law by disclosing strategic information prior to one IPO and one placing.

  • Sony PlayStation has allegedly breached UK competition law and is being sued for up to £5 billion. The video game giant has been accused of overcharging millions of its customers via its PlayStation Store. The claim, if successful, could mean that all UK customers who purchased digital games or add-on content through the store since August 2016 would be eligible for compensation. This is just one claim in a string of US-style class actions that the Competition Appeal Tribunal has recently been dealing with.  

  • Originally blocked by the CMAin its proposed $68.7 billion acquisition of Activision Blizzard, Microsoft has submitted new documents for the authority to take into consideration. The CMA originally argued it would heavily restrict competition in cloud gaming but since then the deal has been approved by the EU’s competition regulator. Microsoft now argues that the additional conditions imposed by the competition regulator should now be considered in the CMA’s ruling.