“A global competition authority” – The future role of the CMA?

4 June 2021

As individuals, businesses and government departments alike begin to plan their recovery from the disruption caused by the pandemic, the Competition and Markets Authority (“CMA”) is examining its role in respect of pandemic and post-pandemic market abuse.
 

The biggest indicators of the CMA’s direction are contained within its Annual Plan 2021/22.

Protecting consumers and driving recovery during and after COVID-19

Last year’s Annual Report on Concurrency recognised the challenges that the pandemic would bring. The focus for the CMA was to ensure that swift enforcement could continue and a ‘COVID-19 Taskforce’ was established to allow for quick interventions where businesses were suspected of exploiting the exceptional circumstances.

This year’s Annual Plan focuses on the role of the CMA in assisting the UK’s economic recovery. The CMA states that its work will focus on continuing to prohibit and deter price-fixing, abuse of market power and anti-competitive mergers, alongside putting forward measures to encourage competition and helping the government to design and implement policy that promotes competition.

The CMA has also highlighted that the pandemic means there is likely to be an increasing number of vulnerable consumers. Much of the travel industry, in particular, has been in the spotlight for failure to respect consumers’ refund rights.

Post-Brexit

It is no surprise that Brexit features as a key theme in the CMA’s Annual Plan. As of 1 January 2021, the European Commission no longer has the power to investigate matters and conduct dawn raids in the UK, or request the CMA to do the same (unless the Commission initiated an investigation before the end of the transition period).

The Plan states that the CMA is ready to tackle complex cases “with a global dimension”, having committed sufficient resources to ensure they can fulfil this “expanded role”.

This represents a significant leap in the CMA’s responsibilities. ‘Going global’ will require increased co-operation with a multitude of international competition authorities (the CMA has recently signed five ‘statements of collective intent’ with authorities in Australia, New Zealand, Canada and the United States in that regard). This reflects a growing trend amongst all UK enforcement agencies for an increase in cross-border investigations.

Digital markets

Digital markets have accelerated during the pandemic. In its Annual Plan the CMA recognises that such markets have “huge potential for value creation”, but warns that it remains “vigilant to the risk of harm to consumers”.

On 27 November 2020, the CMA announced a dedicated Digital Markets Unit (“DMU”) to enforce a new code to govern the behaviour of platforms that currently dominate the market. In addition to the usual anti-competitive behaviour investigations and merger assessments, the CMA’s work will likely expand to include data protection rights, as they seek to ensure that consumers are treated fairly by having more choice and control over the mass of personal data held by online companies.

In January 2021, the CMA’s Data, Technology and Analytics (DaTA) Unit published a paper on how algorithms can reduce competition and harm consumers, setting out the direct harms to consumers, techniques to investigate those harms and the role of regulators in addressing them. It accompanies the launch of the CMA’s ‘analysing algorithms programme’ and intention to “work with other regulators and industry to set standards and determine how algorithms should be audited”.

Supporting transition to a low carbon economy

The Annual Plan also examines the UK’s commitment to a legally binding target of net zero emissions by 2050.

The aim of the CMA is to ensure that businesses do not “shy away” from sustainability initiatives due to unfounded fears of breaching competition law, in addition to supporting them in remaining competitive whilst adapting to climate change. Projects for 2021 include a market study into electric vehicle charging in the UK, which will consider how to develop a competitive sector whilst also attracting private investment.

Criminal cartel investigations

Many of the themes in the Annual Plan demonstrate that the CMA plans to increase co-operation with other enforcement agencies on a national and international scale.

On 21 October 2020 the CMA signed a Memorandum of Understanding with the SFO. The MOU affirms the agencies’ agreement to co-operate and the basis on which they will do so.

Practitioners await with interest some indication of the practical impact of this MOU for criminal cartel investigations. Some commentators have suggested that it is an indication that the CMA could take a step back in relation to criminal investigations as the SFO is tasked as a specialist agency for dealing with complex criminal matters. The MOU gives the CMA discretion to refer cases to the SFO where appropriate. However, primary responsibility for undertaking all initial criminal enquiries remains with the CMA and the SFO is obliged to pass information it obtains about possible criminal cartel activity to the CMA in the first instance.

The CMA has found it difficult to prosecute criminal cartel cases. The last such case was in 2015 which resulted in one conviction but two acquittals after the jury were not satisfied that the required element of ‘dishonesty’ had been proved. The CMA has instead preferred out-of-court enforcement tools, such as directors’ disqualification orders. It is expected that the CMA’s focus will continue to be on civil investigations, but it will be interesting to see how the roles of the CMA and SFO develop with the MOU allowing for a balance of such matters between them.

Further Information

Kingsley Napley provides specialist advice for individuals and businesses subject to criminal and civil investigations relating to breaches of competition law. 

For further information on the issues raised in this blog post, please contact a member of our criminal team

 

About the authors

Áine Kervick is a Associate in our Criminal Litigation team. She has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests and INTERPOL Red Notices. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations and has written a number of articles on the subject.

Alfie Cranmer is a trainee solicitor in our Regulatory team. He has historically managed a plethora of sensitive cases, deciding and advising on the defence strategy on cases ranging from death by dangerous driving and child sex offences to domestic assaults and drink driving.

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility