Brexit: competition and State aid Contents

Chapter 5: Future UK policy: antitrust and merger control

The advantages of maintaining consistency with the EU

121.The global nature of competition, particularly in relation to mergers and cartel cases, has resulted in a broadly consistent international approach to competition policy. Dr Coscelli identified a “strong push for convergence” and, consequently, he did not expect the UK would significantly change its competition policy post-Brexit.129 Oxera agreed that there was “little economic rationale for the aims of UK competition policy to differ substantially from those elsewhere in the world”.130

122.Ms Normand told us that having a strong competition policy was “foundational” for consumers,131 while Berwin Leighton Paisner LLP highlighted the particular importance of maintaining a “robust and politically neutral” enforcement regime, to provide continuity for businesses during and after the UK’s withdrawal from the EU.132 Vodafone agreed, arguing that—in the context of the significant uncertainty already created by Brexit—changes to the UK competition regime should be limited to those that were “strictly necessary” for the UK’s withdrawal from the EU.133

123.Dr Wardhaugh noted that, post-Brexit, EU competition rules would continue to apply to UK businesses operating in the EU and cross-border. He argued that divergence in the EU and UK regimes would “impose an additional layer of complexity”, incurring costs that would be passed on to consumers or could “thwart an otherwise optimal transaction”.134 The Law Society of Scotland also highlighted the issue of businesses potentially facing “conflicting duties” under differing UK and EU competition regimes.135

124.Thompson et al. were concerned that divergence from current principles risked the politicisation of competition law, and suggested the Government had already shown “some tendency towards increased political interference … in regulatory decisions by expert regulators”, particularly in the telecoms, energy and financial sectors.136

125.Dr Cole argued that maintaining consistency with EU competition law was desirable because it was “superior to the existing alternatives”, such as US antitrust law which, he said, was applied in a “very narrow way”, and required standards of proof of anti-competitive conduct which were “incredibly difficult to achieve”.137

Opportunities for change

126.While there was general agreement that the UK should maintain the principles underpinning its competition policy, witnesses also saw some opportunities for the UK to improve its competition regime outside the EU. Professor Sir John Vickers, Warden of All Souls College Oxford, though, stressed that these should be “evolutionary changes, not revolutionary ones”:

“It would be a great mistake for anyone to take the great uncertainty and upheaval that Brexit will undoubtedly present as a reason to throw up in the air the fundamental principles and institutional framework for competition policy”.138

Antitrust

127.Prof Akman pointed out that the Single Market imperative (the objective of ensuring the coherence of the EU internal market) had been one of the driving forces behind CJEU decisions in competition cases. Post-Brexit, UK courts might decide to “go down a different route”, for example in assessing the acceptability of vertical restraints.139

128.Lord Currie of Marylebone, Chairman of the CMA, highlighted that, post-Brexit, the CMA would become a “decision-maker” on enforcement decisions that were previously taken by the Commission. This would give the UK the freedom not just to diverge from the EU, but to lead in taking a “more innovative approach”, which other countries might subsequently follow.140

129.Dr Coscelli indicated that the UK could “experiment with our national cases … trying to be faster and more effective as an enforcer”.141 Res Publica suggested that the UK could speed up competition enforcement processes by setting page limits for submissions and decisions, adjusting timescales, and making use of modern technology.142

Prosecutorial vs. administrative approaches to enforcement

130.Gowling WLG recommended a more ‘prosecutorial’ model of enforcement post-Brexit, where the CMA’s provisional findings in cases would be put to the CAT to decide whether there had been an infringement of antitrust law. They suggested that this approach could promote economy (removing the need for defendants to make written representations, as the CAT would hear cases directly) and transparency (as evidence could be heard in public under oath if necessary).143

131.Hogan Lovells, on the other hand, pointed out that the UK had voluntarily adopted the EU’s more administrative enforcement procedures, and that the Government had rejected moving to a prosecutorial model after its 2011 consultation on reforming the UK’s competition regime.144 The CLLS Competition Law Committee urged against such a change: “The adoption of adversarial civil processes or moves to a criminal law regime would be counterproductive and would protect UK consumers less well than maintenance of the present approach”.145

‘Effects-based’ analysis

132.Oxera explained that competition law distinguished between two types of assessment of anti-competitive conduct:

(a)form-based, where a type of conduct is known to be, in itself, detrimental to competition, and therefore, once that conduct is proved, there is no need to examine further its impact on the market and consumers; and,

(b)effects-based, where the impact of a type of conduct may be pro- or anti-competitive, and empirical analysis is needed to determine its effects in the specific case being considered.

Oxera told us that the Commission and CJEU had been criticised for taking an overly ‘form-based’ approach, and argued that Brexit gave the CMA the opportunity to adopt a more ‘effects-based’ focus. Oxera argued this could be “economically advantageous … when faced with increasingly complex competition issues such as those arising in digital markets”.146

Competition enforcement and the digital sector

133.Dr Coscelli suggested that, post-Brexit, the CMA could establish “more of an individual identity” in the area of non-cartel enforcement, such as in the global debate on how competition authorities should deal with dominant online platforms.147

134.Trustonic outlined recent Commission attempts to use EU competition law to restrain the dominance of, mostly US-based, technology firms, which had involved “landmark fines” and “protracted legal appeals”. While emphasising the importance of continued consistency with EU interpretations of law in this area, Trustonic argued that the UK should now aim to “become more nimble in its enforcement of antitrust rules”, by “showing a greater willingness to halt anticompetitive business practices, while collating a sufficient evidence base to move ahead with full enforcement proceedings”.They suggested this could be achieved by establishing a clear policy on, and making proactive use of, interim measures.148

135.We considered these issues in our 2016 report on Online platforms and the Digital Single Market, concluding that, in fast-moving digital markets, competitors falling foul of anti-competitive conduct could suffer irreversible harm before legal cases concluded. We recommended that the CMA should make greater use of interim measures, and that it should consider introducing time limits for the negotiation of commitments between competition authorities and dominant firms, in order to encourage firms to offer serious proposals (to address competition concerns) from the outset of an investigation.149

Merger control

Public interest criteria

136.The takeover of Cadbury by the US-based company Kraft was one of the most controversial foreign acquisitions of a UK firm in recent years. Despite assurances that the takeover would result in increased jobs and investment in Cadbury’s Somerdale factory, the closure of this factory was announced a week after the deal was agreed to widespread criticism from the public and the Panel on Takeovers and Mergers.150

137.In July 2016, during her campaign to become Leader of the Conservative Party, the Prime Minister criticised the Cadbury-Kraft takeover and the proposed acquisition of the UK-headquartered firm AstraZeneca by the US company Pzifer:

“A proper industrial strategy wouldn’t automatically stop the sale of British firms to foreign ones, but it should be capable of stepping in to defend a sector that is as important as pharmaceuticals is to Britain”.151

The Government subsequently announced its intention to review the public interest regime in the Enterprise Act 2002.152

138.Following this announcement, there was speculation that the Government would seek to broaden public interest merger criteria to limit foreign ownership in sectors of strategic importance to the UK economy post-Brexit. Several of our witnesses, however, suggested that this possibility was available irrespective of Brexit. The CLLS Competition Law Committee, for example, said that, within the EU, the UK already had “relatively broad scope” to review public interest considerations. Brexit only provided opportunities in relation to the “relatively small number of cases” under the jurisdiction of the EUMR, where a public interest consideration did not fall within pre-defined categories and would not be accepted as an additional “legitimate interest”.153

139.While noting the controversy surrounding recent, high-profile foreign takeovers of UK firms, witnesses to this inquiry were generally emphatic that amending the ‘lessening of competition’ test, or broadening the existing specified merger public interest criteria, would be unwelcome. Eversheds Sutherland (International) argued that this would “be a real step backwards” for UK competition policy, and could contravene “the fundamental purpose of competition law … to ensure a level playing-field and promote a competitive economy”.154 Dr Maria Ioannidou, Senior Lecturer in Competition Law at Queen Mary University of London, suggested that such action could make the UK “an unattractive place for international investors”, and COMBAR thought it would place a further regulatory burden on businesses on top of that resulting from the loss of the EUMR ‘one stop shop’.155 Hogan Lovells also noted that the UK had led the way in replacing its public interest-based merger control test with competition criteria, a system which they said was now “well entrenched in merger control systems around the world”.156

140.On the other hand, the CLLS Competition Law Committee acknowledged that Brexit would enable the Government to respond to unexpected public interest concerns without potentially having “its judgement questioned by a non-UK body”. CLES suggested that the UK could consider including “’green’ and ‘social’ economy” criteria in its public interest considerations.157 Baker McKenzie stressed that any new considerations would need to be clearly defined to avoid “uncertainty for businesses”, and should be subject to appropriate review, potentially necessitating “a new independent regulatory body”.158

Long term sustainability

141.Kate Bell, Head of the Economic and Social Affairs Department at the TUC, called for the “the introduction of a test for mergers and acquisitions relating to long-term company interest”, which could be “administered either by a new mergers and acquisitions commission or by the [CMA]”. However, she also emphasised that the TUC had been campaigning for such a test “long before Brexit was thought of”, and that it was needed because of the way the UK had chosen to act within the EU framework, rather than as a result of a failure of EU law itself.159

Turnover thresholds

142.As we noted in Chapter 2, Res Publica criticised current merger turnover thresholds as being “inappropriate for technology and online media markets”, allowing numerous tech sector mergers to be completed “’under the radar’”, and leading to increased concentration in the sector over time.160

143.In our report on Online platforms and the Digital Single Market we concluded that competition authorities should be vigilant to ensure that large online platforms acquiring less-established firms were not, in effect, buying up the competition. We also recommended that the Commission should amend the EUMR to include additional thresholds, such as including the price paid for the ‘target’ firm, or a version of the UK’s ‘share of supply’ test.161

National security and infrastructure investment review

144.During our inquiry, the Government published a Green Paper on its review of the national security implications of foreign ownership or control. The paper proposed that the turnover threshold and ‘share of supply’ test within the Enterprise Act 2002 should be amended for the military and dual-use sectors, and parts of the advanced technology sector. This would result in the Government being able to review, and potentially intervene in, a greater number of merger cases in these sectors. In the longer term, the paper also proposed that the Secretary of State should be allowed to intervene when they had reason to believe that the acquisition of a UK business posed national security risks, and that there should be a mandatory notification regime for foreign investment in specified sectors.162

145.The Government’s proposed reforms to merger control are ostensibly restricted to issues of national security, not wider public interest or competition reasons. Nonetheless, the paper recognises that the structure of the Enterprise Act 2002 is such that applying lowering jurisdictional thresholds would “allow the Government to intervene in smaller deals for media plurality or financial stability reasons”. The paper stresses, however, that “the UK is committed to free trade and investment”, and that security threats “should not be conflated with screening to control market access for protectionist reasons”.163

Future UK-EU cooperation on competition matters

146.The CLLS Competition Law Committee told us:

“Cooperation between national competition agencies and the Commission plays an important part in the efficient application of competition law in the European Union including the UK. Further cooperation is therefore essential to ensure a system which is effective in deterring, detecting and preventing unlawful behaviour”.164

147.Dr Chirita explained that, under Regulation (EC) 1/2003, the UK was able to cooperate with the NCAs of other Member States and the Commission on detecting anti-competitive conduct; sharing confidential information; facilitating cross-border access to evidence; avoiding dual notification of mergers; alignment of national leniency programmes; and mutual recognition of enforcement remedies and court rulings. Dr Chirita argued that continued cooperation in these areas would be important to maintain the “international standing and reputation” of the UK competition regime post-Brexit.165

148.Hausfeld & Co told us that not only would it always be in the UK’s interest to be informed of potential infringements of competition law, the Commission and other EU NCAs were also important sources of information in this regard. They believed that, without these information flows, “the quality of UK enforcement would very likely deteriorate”, and that information-gathering and monitoring activities would place a significant additional burden on the CMA and sector regulators.166

149.The CMA said that the EU would also have a strong interest in continuing to cooperate with the UK on competition matters, “for mutual support and to prevent duplication of enforcement efforts”.167 The Centre for Law, Economics and Society at University College London (CLES) agreed, pointing out that the size of the UK economy, and its interconnection with the economies of the EU 27, made it “very likely that many competition law infringements originating in the UK [would] have foreseeable, substantial, and direct effects” in the EU.168

Formal bilateral arrangements

150.Many witnesses urged the UK and EU to reach a formal cooperation agreement to facilitate future mutual assistance in competition enforcement after Brexit. Indeed, Ms Cardell told us it would be “critical” for an agreement to replicate, or deliver the equivalent of, current levels of cooperation.169

151.The CMA’s written evidence listed several areas where they considered a legal basis should be established for ongoing UK-EU cooperation:

The CMA was particularly concerned about the second point, arguing that it would be “very inefficient” if, in future, the UK and EU could not share confidential information when investigating the same, or overlapping, cases of anti-competitive conduct.170

152.While noting the benefits of continued close UK-EU cooperation in all aspects of competition enforcement, Eversheds Sutherland (International) agreed that the “secure, secret and timely” exchange of information would be the most important aspect of any competition cooperation agreement.171 Prof Vickers warned that, without a UK-EU agreement on sharing confidential information, public policy could be “greatly frustrated”, particularly in relation to international cartel cases which, he said, were “99% about evidence”.172

Precedents for EU competition cooperation agreements with third countries

153.The CLLS Competition Law Committee observed that the EU already had competition cooperation arrangements in place with a number of non-EU Member States (‘third countries’), ranging from memoranda of understanding and guidance to formal bilateral agreements.173 Dr Wardhaugh thought it likely that the EU might use these existing agreements as “templates (or ‘off the shelf’ solutions) for future agreements”.174

154.The EU currently has five bilateral cooperation agreements, with the US, Canada, Japan, South Korea and Switzerland. The first four of these are known as ‘first generation’ agreements: they contain various instruments of cooperation in the area of competition policy, but do not allow the competition authorities to exchange information and documents acquired in the course of their investigations, unless they have obtained express waivers from the source of the information. The agreement between the EU and Switzerland facilitates contact between the European Commission and the Swiss Competition Commission to discuss policy issues, and enforcement efforts and priorities. It is known as a ‘second generation’ agreement because it allows the two competition authorities to exchange evidence, subject to certain conditions.175

155.Dr Coscelli told us that the CMA had looked at these existing EU competition cooperation agreements, and highlighted that the EU-Switzerland agreement had “very interesting provisions about exchange of confidential information in antitrust cases”. He acknowledged, however, that it would have some “issues” compared to the UK’s current situation.176

156.CLES emphasised that “none of the existing international agreements [came] close to the degree of cooperation possible and practiced within the E[uropean] C[ompetition] N[etwork]”. They noted that, while the EU-Switzerland agreement was “far-reaching”, it did not provide for the sharing of information obtained under leniency programmes and settlement submissions, and placed restrictions on the use of confidential information.177 CLES concluded it would be “unrealistic” for the UK to believe it could reach an agreement with the EU that replicated current cooperation arrangements under Regulation (EC) 1/2003, even though this would be “highly desirable”.178

157.Eversheds Sutherland (International) also pointed out that, after Brexit, the UK would no longer benefit from existing bilateral cooperation agreements between the Commission and non-EU competition authorities.179 CLES called for the Government to re-establish cooperation arrangements with these countries after Brexit, prioritising the UK’s major trading partners and countries with “vigorous” antitrust enforcement regimes, such as the US, Canada, Japan, South Korea, Brazil and Chile.180

Informal cooperation

158.Prof Maher Dabbah noted that competition authorities did not necessarily need to be “bound by a formal process” in order to cooperate. He suggested that many competition authorities cooperated cross-border on a de facto basis as extensively as they did on a formal basis, with the key being the “will for cooperation”.181 The CLLS Competition Law Committee commented that informal cooperation commonly occurred where countries had strong economic and trade ties.182

159.Such informal cooperation would, however, have its limits. Prof Whish noted that informal cooperation would not overcome the “legal obstacles” which prevent authorities exchanging confidential information.183

The Government’s position

160.BEIS indicated that the Government would not seek to alter the essential underlying principles of UK competition policy after Brexit, confirming that the UK and the EU shared “a fundamental belief in rigorous and fair competition”, and that the UK intended to remain “a strong advocate of effective independent competition enforcement”.184

161.BEIS noted the benefits of international cooperation on competition enforcement, in particular, the importance of preserving the CMA’s ability to cooperate with the European Commission through the mutual sharing of confidential information, coordination on merger reviews, and cooperation on investigative and enforcement measures. The Government’s aim was to negotiate “a strong future cooperation agreement with the European Commission on all competition matters”. BEIS also said that the UK would be able to agree arrangements for bilateral cooperation with non-EU competition authorities “as necessary”.185

162.The Minister told us it would be “a good thing” for the CMA to continue to be able to share confidential information with its European partners after Brexit, but did not have a “particular shopping list” for the specific details of any UK-EU competition cooperation agreement. Ms James emphasised that the UK would be approaching negotiations with the EU “from a position of absolutely, integrated cooperation”, as part of the European Competition Network (ECN), but admitted that a competition cooperation agreement going beyond the levels of cooperation in any of the EU’s existing agreements with third countries would be “desirable”.186

163.We also asked the Minister what the implications would be of a ‘no deal’ scenario for any agreement to cooperate on competition matters. Ms James acknowledged that a “continued positive relationship” could facilitate some form of informal cooperation. She noted the “gateway” provided under UK law for the CMA to share confidential information with overseas authorities, but acknowledged the EU’s inability to reciprocate this information flow would be “the key issue with not getting a deal”.187

Conclusions

164.The UK has played a significant role in recent decades in pushing forward the broad alignment of global competition policy, based on improved economic efficiency that delivers economic growth and development, and long-term consumer welfare. We note that ongoing consistency with the EU’s approach to competition policy—at least in the short-term—could help to provide stability and predictability for UK businesses in the face of the significant changes Brexit will bring.

165.Nonetheless, Brexit does provide an opportunity for the UK to develop a more effective competition enforcement regime. With the repatriation of responsibility for enforcement decisions previously taken by the European Commission, the UK will have the freedom to take a more innovative and responsive approach to antitrust enforcement and merger control, including in relation to fast-moving digital markets and dominant online platforms.

166.In terms of the potential for the UK to review public interest criteria in merger control, the UK is already able to intervene on larger mergers within the jurisdiction of the EU Merger Regulation (EUMR) on public interest grounds that closely match those specified under UK law. Member States are also able to make interventions based on other “legitimate interests”, subject to approval by the Commission. We conclude that EU rules have not materially prevented the UK from amending its approach to merger control. Indeed, the current competition-based approach was pioneered by the UK.

167.We recognise that, post-Brexit, there may be pressure for wider public interest criteria to be considered—particularly in relation to foreign takeovers—as well as opposing pressures, for example to dilute merger controls to encourage more inward investment. On balance, we do not consider that Brexit should be seen as an opportunity to make significant changes to existing public interest criteria.

168.The extent of trade between the UK and the EU 27 makes it likely that future substantial antitrust and merger cases will have effects in both markets. It will therefore be in the mutual interests of the EU and the UK to continue to cooperate on competition matters post-Brexit. The best way to facilitate this cooperation would be for the UK and EU to negotiate a formal cooperation agreement, covering both antitrust and merger case investigations and enforcement actions. Any such agreement should enable reciprocal evidence-sharing (including of confidential information) which would not be possible under informal cooperation arrangements without express consent from the undertakings involved. We note that parties to mergers would be more likely to provide this consent to ensure that merger transactions can go ahead as quickly as possible.

169.The UK and the EU start from a position of extensive mutual assistance within the ECN. Nevertheless, we note that, if it is to achieve the CMA’s desire for the same, or equivalent, levels of current cooperation, the Government will need to negotiate the most comprehensive competition cooperation arrangement the EU has ever agreed with a third country. The UK will also need to re-establish competition cooperation arrangements with countries currently covered by existing EU bilateral agreements.


129 Q 4 (Dr Andrea Coscelli)

130 Written evidence from Oxera (CMP0012)

131 Q 45 (Caroline Normand)

132 Written evidence from Berwin Leighton Paisner LLP (CMP0025)

133 Written evidence from Vodafone Group plc (CMP0019)

134 Written evidence from Dr Bruce Wardhaugh (CMP0005)

135 Written evidence from the Law Society of Scotland (CMP0036)

136 Written evidence from Rhodri Thompson QC, Christopher Brown, Nicholas Gibson, and Anita Davies (CMP0020)

137 Written evidence from Dr Matthew Cole (CMP0040)

138 Q 21 (Prof Sir John Vickers)

139 Q 21 (Prof Pinar Akman)

Vertical restraints are restrictive agreements made between firms at different levels of trade or industry (e.g. between a supplier and a distributor) and concern the parties’ feasibility of buying, selling or reselling certain goods or services. European Economic & Marketing Consultants, ‘Vertical restraints’: http://www.ee-mc.com/expertise/agreements/vertical-restraints.html [accessed 6 December 2017]

140 Q 4 (Lord Currie)

141 Q 9 (Dr Andrea Coscelli)

142 Written evidence from Res Publica (CMP0030)

143 Written evidence from Gowling WLG (CMP0023)

144 Written evidence from Hogan Lovells (CMP0027)

145 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017)

146 Written evidence from Oxera (CMP0012)

147 Q 4 (Dr Andrea Coscelli)

148 Written evidence from Trustonic (CMP0022)

Interim measures refer to a requirement to amend allegedly anti-competitive conduct pending the outcome of an investigation e.g. the 2010 French Competition Authority’s interim measures decision ordering Google to modify its policy for its online advertising service AdWords. ‘Google AdWords lacks transparency: French regulator’, Reuters (30 June 2010): https://www.reuters.com/article/us-google-france-adword/google-adwords-lacks-transparency-french-regulator-idUSTRE65T1ZS20100630 [accessed 12 January 2018]

In the UK, the CMA may, before completing its assessment of an agreement or conduct, give interim measures directions when: it has a ‘reasonable suspicion’ that an infringement has occurred and is in the process of investigating the suspected infringement; and, it considers it necessary to act as a matter of urgency for the purpose either of preventing significant damage to a particular person or business, or, of protecting the public interest. Slaughter and May, An overview of the UK competition rules (June 2016): https://www.slaughterandmay.com/media/1515647/an-overview-of-the-uk-competition-rules.pdf [accessed 26 November 2017]

149 European Union Committee, Online Platforms and the Digital Single Market (10th Report, Session 2015–16, HL Paper 129), paras 199-201

150 ‘Kraft case showed limits to UK’s power to intervene’, Financial Times (19 February 2017): https://www.ft.com/content/e24ca166-f694-11e6-bd4e-68d53499ed71 [accessed 20 December 2017].

The Panel on Takeovers and Mergers is an independent body which issues and administers the City Code on Takeovers and Mergers and supervises and regulates takeovers and other matters in accordance with the Code. The Code is not concerned with the financial or commercial advantages or disadvantages of a takeover. These are matters for the company and its shareholders. Wider questions of public interest, such as competition policy, are the responsibility of Government and other bodies, such as the CMA and the European Commission. ‘The Takeover Panel’: http://www.thetakeoverpanel.org.uk/ [accessed 12 January 2018]

151 Theresa May MP, Speech ‘We can make Britain a country that works for everyone’, 11 July 2016: http://press.conservatives.com/post/147947450370/we-can-make-britain-a-country-that-works-for [accessed 4 December 2017]

152 Department for Business, Energy and Industrial Strategy, ‘Government confirms Hinkley Point C project following new agreement in principle with EDF’ (15 September 2016): https://www.gov.uk/government/news/government-confirms-hinkley-point-c-project-following-new-agreement-in-principle-with-edf [accessed 4 December 2017]

153 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017). See Chapter 2, footnote 29

154 Written evidence from Eversheds Sutherland (International) LLP (CMP0024)

155 Written evidence from Dr Maria Ioannidou (CMP0028) and the Commercial Bar Association (CMP0038)

156 Written evidence from Hogan Lovells (CMP0027)

157 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017) and the Centre for Law, Economics and Society at UCL (CMP0032)

158 Written evidence from Baker McKenzie LLP (CMP0026)

159 Q 39 (Kate Bell)

160 Written evidence from Res Publica (CMP0030)

161 European Union Committee, Online Platforms and the Digital Single Market (10th Report, Session 2015–16, HL Paper 129), paras 161–163

The ‘share of supply’ test gives the CMA the jurisdiction to investigate if, as a result of the merger, the combine enterprise will supply or acquire 25% or more of any goods or services in the United Kingdom or a substantial part of the United Kingdom. Jones Day, ‘Merger Control in the United Kingdom’ (23 June 2015): https://www.lexology.com/library/detail.aspx?g=470ba030-0469–43a5-a92c-0fc67738ff72 [accessed 23 November 2017]

162 Department for Business, Energy and Industrial Strategy, National Security and Infrastructure Investment Review (October 2017): https://beisgovuk.citizenspace.com/ccp/nsiireview/supporting_documents/2017%2010%2016%20NSII%20Green%20Paper%20final.pdf [accessed 4 December 2017]. In this paper, the Government defines the military sector as including arms, military and paramilitary equipment and ‘dual-use’ to include items which could have both military and civilian uses. The advance technology sector includes multi-purpose computing hardware and quantum-based technology. The Government proposes that these sectors be included in the mandatory notification regime along with parts of the civil nuclear, defence, energy, telecommunications, and transport sectors and (potentially) government and emergency services sectors.

163 Department for Business, Energy and Industrial Strategy, National Security and Infrastructure Investment Review (October 2017): https://beisgovuk.citizenspace.com/ccp/nsiireview/supporting_documents/2017%2010%2016%20NSII%20Green%20Paper%20final.pdf [accessed 4 December 2017]

164 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017)

165 Written evidence from Dr Anca Chirita (CMP0013)

166 Written evidence from Hausfeld & Co LLP (CMP0018)

167 Written evidence from the Competition and Markets Authority (CMP0002)

168 Written evidence from the Centre for Law Economics and Society at UCL (CMP0032)

169 Q 3 (Sarah Cardell)

170 Written evidence from the Competition and Markets Authority (CMP0002). The CMA explained that, without this legal basis, the EU would be prevented from sharing confidential information with the UK by professional secrecy provisions in EU law.

171 Written evidence from Eversheds Sutherland (International) LLP (CMP0024)

172 Q 26 (Prof Sir John Vickers)

173 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017). See also European Commission, ‘Bilateral relations on competition issues’, for an overview of all the third countries with which the EU engages in competition cooperation (17 October 2015): http://ec.europa.eu/competition/international/bilateral/index.html [accessed 27 November 2017]

174 Written evidence from Dr Bruce Wardhaugh (CMP0005)

175 European Commission, ‘Competition: Commission welcomes entry into force of Cooperation Agreement with Switzerland’ (28 November 2014): http:/europa.eu/rapid/press-release_IP-14-2245_en.htm [accessed 27 November 2017]

Article 17.2 of the recent EU-Canada Comprehensive Economic and Trade Agreement (CETA), which entered into force provisionally in September 2017, relates to competition policy between the two parties. It recognises the “importance of free and undistorted competition” in EU-Canada trade relations and commits both parties to “cooperate on matters relating to the proscription of anti-competitive business conduct” in accordance with the 1999 EU-Canada competition cooperation agreement. Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union [and its Member States] [accessed 20 December 2017]

176 Q 9 (Dr Andrea Coscelli)

177 For example, the EU-Swiss agreement specifies: “No information discussed or transmitted under this Agreement shall be used to impose sanctions on natural persons” whereas Article 12(3) of Regulation (EC) 1/2003 does permit information exchanged by the Commission and NCAs to be used in evidence to impose sanctions on natural persons under certain circumstances. See Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, (OJ L 1, 4 January 2003) and the Agreement between the European Union and the Swiss Confederation concerning cooperation on the application of their competition laws (OJ L347/3, 3 December 2014): http://ec.europa.eu/competition/international/bilateral/agreement_eu_ch_en.pdf [accessed 27 November 2017]

178 Written evidence from the Centre for Law Economics and Society at UCL (CMP0032)

179 Written evidence from Eversheds Sutherland (International) LLP (CMP0024)

180 Written evidence from the Centre for Law Economics and Society at UCL (CMP0032)

181 Q 26 (Prof Eyad Maher Dabbah)

182 Written evidence from the Competition Law Committee of the City of London Law Society (CMP0017)

183 Q 26 (Prof Richard Whish)

184 Written evidence from the Department for Business, Energy and Industrial Strategy (CMP0041)

185 Ibid.

186 Q 49 (Margot James MP)

187 Q 51 (Margot James MP). See also written evidence from the CMA (CMP0002) explaining that this ‘gateway’ is provided under section 243 of the Enterprise Act 2002 which allows the UK to consider disclosing information to an overseas public authority on a case-by-case basis.




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