Brexit: Competition and Regulatory

The UK left the EU on 31 January 2020. A transition period, during which EU laws continue to apply in the UK, is due to end on 31 December 2020. The UK/EU Withdrawal Agreement sets out transitional arrangements and negotiations for the future UK/EU relationship are ongoing.

EU competition law continues to apply in the UK during the transition period and so for now it is 'business as usual'. However, from the end of the transition period, the UK will have its own standalone competition regime, led by the Competition and Markets Authority (CMA).

It is therefore increasingly important for businesses to understand the implications of the 'handover' of responsibility from the European Commission to the CMA and how this may impact their business. Issues businesses will need to consider include:

  • Antitrust investigations – impact on ongoing investigations, strategic implications for potential leniency applications and how best to avoid the risk of parallel investigations.
  • State aid – status of approvals and considerations around the UK's future framework (particularly for businesses operating in Northern Ireland).
  • Damages claims – impact of the end of the transition period on the ability to bring damages claims in the UK courts.
  • Merger control – which authority(ies) will have jurisdiction to review a transaction and how this should be catered for in deal documentation.

Beyond the end of the transition period, the level of divergence between the EU and UK competition regimes and the impact this will have on business is unknown. In the short term, however, we are likely to see an increase in parallel investigations, particularly as the CMA gears itself up to "take on a more active role in global cases from January 2021".

As regards the regulatory landscape more generally, depending on the outcome of the Brexit negotiations, the "one stop shop" for regulatory approvals – whereby either an EU regulator or mutually approved national regulators can grant relevant approvals – will cease at the end of the transition period.  Businesses will need to prepare for the impact that this may have on their ability to serve their customers.  In addition, industries that rely on international co-operation beyond regulatory standards – such as the travel sector and its reliance on internationally negotiated travel rights – will need to follow negotiations with a particularly sharp focus.

Businesses can legitimately engage with industry bodies about the impact of Brexit on their industry. However, businesses will need to take care to ensure that these discussions do not stray onto the wrong side of competition rules.

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