The Brexit Competition Law Working Group (“BCLWG”), has published its conclusions and recommendations on the implications of Brexit for UK competition law and policy. The BCLWG was set up by a group of senior antitrust figures to foster public debate and inform government policy on the implications of Brexit for competition law. The report is available here.
Summary of the report
- Brexit does not give cause for radical reform of the principal UK competition statutes, nor of the role of the competition authorities.
- However, primary legislation will require amendment. In particular, the report recommends that the duty in section 60 of the Competition Act for the UK authorities and courts to act consistently with EU be amended to become a duty to ‘have regard to’ that jurisprudence. It also recommends repeal of section 10 of the Competition Act so that future EU block exemptions from the competition rules (e.g. EU Vertical Block Exemption) are not automatically imported into the UK; they would instead become a matter for the UK to decide.
- To preserve continuity of the ability of private parties to bring actions for damages in the UK for breaches of EU (as well as UK) competition law, the report recommends retaining sections 47 and 58 of the Act.
- For mergers the report recommends retaining the existing statutory criteria. In particular it does not support a change to the substantive assessment of mergers (the ‘substantial lessening of competition’ test). The report also does not consider that the current regime regarding the ability of the Government to intervene in mergers that raise public interest issues needs to be changed.
Brexit raises significant issues concerning transitional arrangements (both for antitrust and merger investigations); future cooperation between the UK and EU authorities; and the resources that the CMA will need to cope with its increased case load. In relation to transitional issues, the report makes a series of recommendations on the carrying forward of commitments from past antitrust and merger cases, and of leniency arrangements. Particularly difficult issues could arise in relation to mergers that ‘straddle’ the date of Brexit, and (in the longer run) parallel UK/EC investigations, both of mergers and antitrust issues.