The Institutional Framework of Competition Law Flashcards
What are the Sourcse of UK Competition law?
- Domestic primary and secondary legislation.
- EU primary and secondary legislation.
P. 1.
What are the two most important Domestic Primary Legislations?
- The Competition Act 1998 (CA).
- The Enterprise Act 2002 (EA).
To what extent does European Competition Law still apply to the UK following Brexit?
- It remains binding domestically as ‘retained EU law’ and will so continue so until overturned or repealed.
- That said, despite its origin, it is formally recognized as English law, not European law.
P. 2.
For example, Chapters 1 and 2 of CA 1998 must be applied consistently with the equivalent provisions under retained EU law. See §60 thereof.
How should European Competition Law be interpreted following Brexit?
In accordance any retained caselaw and general principles, having regard to the limits of European competences immediately before Brexit’s completion.
P. 60; The European Union (Withdrawal) Act 2018.
Since much of the UK’s competition regime is modelled after Europe’s, the interpretation thereof will likely provide a highly persuasive, albeit informal, analogy to the interpretation of the English regime.
What are the Four Main Pillars of UK Competition Law?
- Intervention in anti-competitive M&A.
- Intervention in markets to remedy anti-competitive features.
- Prohibition on abuse of dominance (‘Chapter 1 Prohibition’).
- Prohibition on anti-competitive agreements (‘Chapter 2 Prohibition’).
The Chapters refer to the Competition Act 1998.
P. 2.
Who is the Chief Competition Regulator?
The Competition and Markets Authority (CMA).
P. 3.
It was established by §25(1) of the Enterprise and Regulatory Reform Act (ERRA) 2013.
What is the CMA’s Statutory Mandate?
To promote competition, both within and outside the UK, for the benefit of consumers.
P. 12; §25(3) – ERRA 2013.
Generally, what are the CMA’s Powers?
It can:
* Review mergers.
* Seek director disqualification orders.
* Bring civil and criminal prosecutions.
* Enforce the Chapter 1 and 2 Prohibitions.
* Carry out market studies and binding investigations.
Among a range of other sector-specific powers.
P. 3.
These powers must be exercised in accordance with the CMA Rules,° which outline standard operating procedures and guarantee minimum rights of defence for parties under investigation.
° Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014 (SI 2014/458)
What are the CMA’s Prioritization Principles?
The standards it uses to decide which cases to undertake, namely:
* Risk: How likely is an intervention to succeed?
* Impact: How likely is an intervention to improve consumer welfare?
* Costliness: Would an intervention be an efficient use of the CMA’s time and resources?
* Strategic Significance: Would an intervention align with the CMA’s strategy and objectives?
P. 18.
Naturally, this does not apply to cases the CMA must undertake as a matter of law, such as super-complaints. See §11 – EA 2002.
Who are the Concurrent Sectoral Competition Regulators?
- Civil Aviation Authority (CAA).
- Office of Rail and Road (ORR).
- Financial Conduct Authority (FCA).
- Payment Systems Regulator (PSR).
- Office of Communications (Ofcom).
- Water Services Regulation Authority (WSRA).
- Office of Gas and Electricity Markets (Ofgen).
- Northern Ireland Authority for Utility Regulation (NIAUR).
P. 29-30.
These bodies’ competition powers, to varying degrees, are more limited than the CMA’s, effectively acting as collaborative satellites. See The Competition Act 1998 (Concurrency) Regulations 2014 (SI 2014/536) (The ‘Concurrency Regulations’).
Nevertheless, their powers are real, and they are statutorily required to consider using them. See Sch. 14 – ERRA 2013.
What is the Main Judicial Venue for Competition cases?
The Competition Appeal Tribunal (CAT).
P. 7.
What is the CAT’s jurisdiction?
To review the decisions of competition authorities, whether by way of judicial review or merits appeal.
P. 7
Do Civil Courts hear Competition Cases?
Yes. Civil courts can:
* Issue director disqualification orders.
* Issue warrants to regulators for Dawn Raids.
* Hear standalone cases concerning the Chapter 1 or 2 Prohibitions.°
* Hear claims for judicial review that are not subject to a statutory right of review by the CAT.
P. 57-58.
° R.30.8 – Civil Procedure Rules (CPR).
Do Criminal Courts hear Competition Cases?
Yes. Criminal courts can:
* Issue director disqualification orders.
* Prosecute individuals under the criminal cartel offence.°
P. 58.
° §188 – EA 2002.
How can the Secretary of State, on the Government’s behalf, intervene in a Merger or Acquisition?
By referring it to the CMA for investigation, to whom’s decision the Secretary will be bound.
P. 47; §45-§46 – EA 2002.
That said, the Secretary may issue an ‘adverse public interest finding’, allowing the use of enforcement powers to remedy, mitigate or prevent any adverse effect on public interest from a transaction. See Schs. 7-8 – EA 2002.
Elsewise, it can somewhat influence CMA and CAT administration and secondary competition legislation.
