Competition/antitrust

In a nutshell

It is the job of the UK and EU regulatory authorities to ensure that markets function effectively on the basis of fair and open competition. The rules in the UK and EU are substantially similar, but UK bodies concentrate on those rules that have their greatest effect domestically, while EU authorities deal with matters affecting multiple member states. Of all areas of law in the UK, competition law is – at present – most closely intertwined with 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.

On 1 April 2014, the Competition and Markets Authority (CMA) was established as the UK government’s main regulatory body, adopting many of the functions of the Office of Fair Trading (OFT) and the Competition Commission (CC). 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.

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, and the European Commission – the regulator dealing with matters also affecting other 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

  • Brexit is a big topic here. Merger control in the UK predates that on an EU level, so complete separation from the EU may not have a large direct impact on the UK merger regime. However, companies could lose their ability to request merger clearance under both jurisdictions simultaneously – separate submissions may have to be made to both UK and EU regulators, driving up costs for businesses.
  • There will probably be a need for the UK to establish its own domestic state aid authority post-Brexit, according to a report from the House of Lords’ EU Committee. The CMA is being considered for this role. In the transition period, it’s likely EU state aid rules will remain in place, however it isn’t clear whether new measures would have to be sent to the European Commission for approval during this time. Generally the EU restricts a government's ability to offer support to specific companies if it would give a company an advantage over its competitors. Recently the Treasury announced a deal with EU competition chief Margrethe Vestager, which involved RBS paying £835 million to competitors to avoid restrictions on state aid. Exceptions can also be made if the aid in question is shown to be important to general economic development.
  • The National Audit Office believes that the CMA has made large strides in tackling the failings of previous competition regulators and that enforcement is now more coherent than before, but that the regulator could still increase the volume of successful enforcement cases it brings and improve business awareness of competition law. After facing criticism for its action on cartels, the CMA launched a ‘stop cartels’ campaign and hotline. Following a five-year investigation, the European Union issued a €1.07 billion fine to Barclays, Citigroup, J.P. Morgan, MUFG and the Royal Bank of Scotland for manipulating the foreign exchange market. Traders formed two cartels to rig the market by swapping trading information on chatrooms between 2007 and 2013.
  • The CMA continues to focus on online goods and service providers and has been issuing open letters to advise businesses on online compliance matters and their rights when dealing with suppliers. In 2019, the EU Competition Commission launched a formal antitrust investigation into Amazon's business practice: the e-commerce giant is accused of collecting data about the retailers it hosts to gain an unfair advantage in the marketplace. Amazon recently reshaped its global business services agreement after the German Federal Cartel Office launched an investigation into third-party seller complaints about Amazon’s practices. Issues included withholding payment and blocking retailers’ accounts without explanation.
  • In 2018 the courts ruled that Visa and Mastercard’s fee schemes restricted competition in a long-running case fought by various retailers including Sainsbury’s, Asda, Morrisons and Argos. The Payment Systems Regulator has now launched a market inquiry into card payment services.
  • 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. The CMA is currently looking into monopoly concerns following the likely awarding of the East Midlands Trains franchise to Abellio, and investigating whether this will cause higher fare prices as Abellio will be the sole rail service provider between Norwich, Ely and Thetford.
  • The FCA has introduced new measures to improve competition in the investment platforms market, which comes after its study into the asset management industry. The study concluded that parts of the industry are under-performing and overcharging due to a lack of consumer knowledge and weak price competition. Recommendations included standardising and simplifying fee disclosures and making transaction costs transparent. Among other stipulations, the FCA’s final rules and guidance will require fund managers to make an annual assessment of value and to appoint a minimum of two independent directors to their board.
  • Pharmaceutical regulation is an area of competition law with potentially enormous effects on public wellbeing. In February 2019, the CMA issued a statement which provisionally found pharmaceutical companies Auden Mckenzie and Waymade guilty of engaging in anti-competitive practices by manipulating the price of life-saving drug hydrocortisone, which is used by people with Addison’s disease. Auden Mckenzie allegedly paid off Waymade to stop them entering the market; as a result, annual costs to the NHS rose from £1.7 million in 2011 to £3.7 million in 2015.

Historically, no area of law has been as intertwined with the EU and its institutions as competition law.