Future UK competition law enforcement explained

Key strategic aims

Ms Enser highlighted three key strategic aims which guide the CMA’s approach to competition enforcement:

• driving growth;
• deterring anti-competitive conduct;
• keeping markets contestable or open.

The CMA wants to receive complaints from businesses which are victims of anti-competitive conduct, impeding their efforts to break into new markets or to expand. The CMA is very conscious of the growth of private enforcement of competition law including claims for damages from victims of cartels and abuses of dominance. But many actions for damages have been follow-on claims, issued after an infringement decision by a competition authority on which claimants seek to rely. In addition, around one half of the CMA’s cases originate from leniency applicants, who, in return for immunity or a large reduction in fines (depending on the circumstances) approach the CMA explaining that they have been party to a cartel. The CMA may also receive information under its informant and whistleblower reward programme for cartels.

Current focus

Ms Enser discussed four areas of current focus for the CMA while noting that priorities can be changed by unexpected events:

• 1. Public procurement

The CMA has a strong track record in enforcement against illegal conduct that has an impact on the public purse, for example its enforcement work in the pharmaceutical sector. It has also actively engaged in work aimed at bid-rigging in public procurement. In recent years the CMA has worked closely with public procurers who can help uncover unlawful conduct.

• 2. Labour markets

The CMA is concerned if businesses collude to restrict competition between them in labour markets. The CMA is currently investigating suspected anti-competitive conduct on rates for workers in the television production and broadcasting sectors, and no poaching arrangements in the consumer fragrances industry.

• 3. Pricing algorithms

Pricing algorithms may result in prices that are higher than they should be to the detriment of customers. This could happen, for example, when the algorithm acts as a conduit for exchanges of strategic information or where price monitoring software is used to “police” an illegal arrangement. The CMA believes that if a pricing practice is illegal when implemented offline, it will probably also be illegal when implemented online and that businesses cannot avoid liability on the ground that their prices were determined by algorithms.

• 4. Exclusionary conduct by businesses with strong market positions

The CMA is keen to keep markets open so that customers can benefit from enhanced competitive rivalry and businesses can compete on a level playing field, for example the CMA’s current work on electric vehicle charging infrastructure, including related advertising.

Next steps

The CMA recognises that competition is key to economic growth, the new government’s top priority, and has made driving productive and sustainable growth a key pillar of its strategy. Businesses which face a barrier should consider whether competition law could provide a remedy, either directly and/or via the CMA’s intervention. Also, businesses which want to collaborate with competitors for pro-competitive reasons should consider whether guidance from the CMA could assist their self-assessment, for example in the area of sustainability and climate change. And businesses which find that they are infringing competition law may wish to consider making a leniency application to obtain immunity from or a significant reduction in any penalties.