The Digital Markets, Competition and Consumers Bill (the “Bill’) was introduced in the House of Commons on 25 April 2023. It is expected to receive Royal Assent in early 2024 and to come into force by the end of that year.
The Bill is very substantial, comprising six parts, 317 Sections and 26 Schedules providing,
• A significant expansion of UK competition and merger law;
• A new competition regime for digital markets; and
• New enforcement powers for UK consumer protection laws.
The Bill is scheduled to complete its passage through Parliament by the Spring of 2024. However, with the General Election due to take place before November 2024, there is a risk that the legislation may not get on to the statute book this side of the Election.
Given the size of the Bill and its broad coverage, this Briefing Note will cover the proposed changes to UK competition and merger law. The new competition rules for the digital sector and the new enforcement powers for UK consumer protection will be covered in separate MW Briefing Notes.
2. UK COMPETITION AND MERGER LAW
The Competition and Markets Authority (“CMA”) is the regulatory authority primarily responsible for the enforcement of competition and merger law under the Competition Act 1998 (“CA98”) and the Enterprise Act 2002 (“EA02”) as amended by the Enterprise and Regulatory Reform Act 2013. Its responsibilities include:
• Carrying out investigations of perceived anti-competitive behaviour and issuing infringement decisions ordering appropriate remedial action and the imposition of fines and other penalties;
• Investigating acquisitions and mergers above defined thresholds and if appropriate issuing decisions prohibiting transactions or ordering behavioural or structural remedies; and
• Undertaking sectoral inquiries where there are competition concerns and subsidy reports with recommendations to Government as to measures to alleviate any perceived anti-competitive effects.
The Bill proposes amendments in the law to broaden the application of existing UK Competition Law and to enhance the CMA’s investigative and enforcement powers.
In relation to mergers, the Bill proposes some changes to the merger thresholds under which a merger will qualify for CMA scrutiny.
Currently, a qualifying merger situation will arise where:
a) the turnover of target exceeding £70 million (the “turnover test’), or
b) post merger, the merged enterprise will acquire a share of supply of the products or services concerned in excess of 25% or an accretion in an existing share of 25% (the “share of supply test’).
The Bill proposes an increase in the turnover test from £70 million to £100 million but makes no change in the share of supply test. However, the Bill proposes a new “acquirer focused” threshold for merger review where one party has,
a) A ‘significant market presence in the UK comprising a share of supply of goods or services of at least 33%; and
b) UK turnover of over £350 million.
In such cases, the merger will qualify for CMA review whether or not the parties are competing enterprises.
The Bill also proposes a new safe harbour for ’small mergers‘ defined as those where each party’s UK turnover is less than £10 million.
4. COMPETITION LAW INVESTIGATIONS
The Bill proposes a number of changes to CA98 broadening the CMA’s powers of intervention, its investigating powers and the penalties which it may impose. These include the following:
• The removal of the requirement that an agreement infringing the ‘Chapter I Prohibition’ must be implemented or intended to be implemented in the UK. Under the Bill, any agreement giving rise to actual or potential anti-competitive effects within the UK, will be caught by the Prohibition whether or not there is an intention to implement; [NOT CLEAR]
• The imposition of a formal duty on any person who knows or suspects that a CMA investigation is being or is likely to be carried out has a duty to preserve and not falsify, conceal or destroy any document relevant to the investigation.
• Additional powers to seize documents from domestic premises;
• Enhanced information gathering and enforcement powers eg increasing the fines for failing to comply with an information request or providing false or misleading information of up to 1% of turnover plus a daily fine of 5% of daily turnover to replace or supplement the current fixed penalties capped at £30,000 and daily penalties capped at £15,000; and
• The power to support international co-operation with other regulatory authorities by exchanging information and even exercising the CMA’s investigatory powers to obtain information on behalf of an authority of another country such powers however, being conditional on reciprocity.
The Bill also proposes that the Competition Appeal Tribunal (“CAT”) should have:
• The power to grant declaratory relief; and
• The power to grant exemplary damages in collective actions.
The Bill proposes a range of measures designed to allow the CMA to carry out market studies with greater flexibility and utility by allowing the CMA to accept undertakings under Part 4 EA02 at any stage and to impose on the CMA a duty to monitor undertakings and any orders made subsequent to the market study.