On 20 July 2021 the Secretary of State for Business, Energy and Industrial Strategy (BEIS) published a consultation, which proposes a number of potentially far-reaching changes to competition and consumer law and policy.
The proposed reforms set out in the consultation, Reforming Competition and Consumer Policy: Driving growth and delivering competitive markets that work for consumers (the Consultation), would change UK competition laws and introduce new consumer protection laws. The Government is also consulting on giving the Competition and Markets Authority (CMA) the ability to directly enforce consumer protection rules in a similar manner to competition law.
Organisations and individuals are invited to respond to BEIS on the Consultation by 1 October 2021.
Background
A number of recent reports, including the government-commissioned Penrose Report, and the 2019 letter from Lord Tyrie, then chair of the CMA, have concluded that there are areas where UK competition and consumer laws could be improved and strengthened. The Consultation sets out the government’s proposals to bring a number of these changes into effect through a package of reforms, which would amount to the most significant amendment of UK competition and consumer laws in almost 20 years.
The 146 page Consultation is packed with proposed legislative and policy changes across all areas of competition law, from merger control to market studies and cartel enforcement, as well as detailed proposals to change consumer law enforcement. Due to the scale of the Consultation, in this alert we will focus on what we consider are some of the most significant proposals.
Competition law reforms
The Consultation notes that the UK’s competition regime is well regarded internationally, but the government recognises that there are areas which could be improved to lead to swifter and more effective outcomes.
The headline proposed changes to the competition rules are:
Merger control
- Introducing a new, additional merger threshold to allow the CMA to review mergers that may be ‘killer acquisitions’ (the acquisition by a large incumbent of a smaller or potential rival to remove them from the market), which would be met if one of the parties to the transaction has a UK turnover of £100 million and a market share of 25 per cent or more.
- Increasing the level of the jurisdictional ‘turnover test’ from £70 million to £100 million to reflect inflation since that figure was first set.
- Removing the jurisdiction of the CMA to review mergers where the worldwide turnover of both of the merging parties is below £10 million.
Market inquiries
- Proposing a change from the current two-stage market study and market investigation regime to a new single-stage market inquiry with flexibility to tailor the length of the investigation to the complexity of the market under review.
- Proposing allowing the CMA to impose interim measures during market inquiries to permit it to temporarily stop particular conduct by businesses under review during the course of the inquiry.
- Permitting the CMA to accept binding commitments to resolve issues at any stage of its inquiry.