CMA’s role in antitrust if there’s no Brexit deal

Changes to current CMA enforcement cases in the event of a ‘no deal’ exit

Under the Competition SI, after the UK’s exit from the EU, the CMA will no longer have jurisdiction to apply Article 101 TFEU on anti-competitive agreements (including cartels) and Article 102 TFEU on abuse of dominance. However, the CMA’s jurisdiction to apply the equivalent UK national prohibitions in the Competition Act 1998 (respectively the Chapter I prohibition and the Chapter II prohibition) will be unchanged. The CMA will inform all affected parties if the scope of an investigation involving them is affected by this.

Under the Competition SI, section 60 of the Competition Act 1998, under which the CMA, sector regulators and the UK courts must interpret the UK competition prohibitions in a way that is consistent with the decisions and principles laid down by the Court of Justice of the European Union, will no longer apply including to cases already opened on or before 29 March 2019. Instead a new provision, section 60A, will apply to such cases.

Section 60A provides that competition regulators and UK courts continue to be bound by an obligation to ensure no inconsistency with the pre-exit EU competition case law when interpreting UK competition law, but that they may also depart from such pre-exit EU case law where it is considered appropriate in the light of particular circumstances.

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