Report on Brexit and competition law

Maya Lester QC

The Brexit Competition Law Working Group has just published its conclusions and recommendations, link here. In summary, the report states that:

1. The interests of the UK economy, and those of businesses and consumers within it, will be best served by continuity of UK competition law and policy, so far as is possible following Brexit.

2. Brexit does not give cause for radical reform of the principal UK competition statutes, nor of the role of the competition authorities. But primary legislation will require amendment. In particular, the report recommends that the duty in section 60 of the Competition Act for the UK authorities and courts to act consistently with EU becomes simply a duty to ‘have regard to’ that jurisprudence. It recommends repeal of section 10 the the Competition Act so that future EU block exemptions from the competition rules are not automatically imported into the UK; they would instead become a matter for the UK to decide. To preserve continuity of the ability of private parties to bring actions for damages in the UK for breaches of EU (as well as UK) competition law, the report recommends retaining sections 47 and 58 of the Act.

3. For mergers and market investigations it recommends retaining the existing statutory criteria, notably the ‘substantial lessening of competition’ test for mergers, and not to vary the existing public interest criteria. For market investigation references, while the CMA should not have an unfettered discretion in its choice of legal instrument when investigating agreements that might be harmful to competition, the Working Group recommends against retaining a domestic analogue of the current EU provision that precludes remedies relating to agreements between firms that go further than the antitrust rules.

4. The report includes recommendations on the carrying forward of commitments from past antitrust and merger cases, and of leniency arrangements, and for mergers that ‘straddle’ the date of Brexit, and (in the longer run) parallel UK/EC investigations, both of mergers and antitrust issues. It also addresses the need for more resources for the CMA.

Leading EU lawyer and former Commission official looks at UK’s post-Brexit free trade options

Former EU Commission director, and leading lawyer and academic, Dr John Temple Lang, looks at the UK’s post-Brexit free trade options, including the Single Market, Customs Union, EEA, WTO, and bespoke agreements. His paper is attached below.


House of Lords inquiry into post-Brexit competition policy

Maya Lester QC

The EU Internal Market Sub-Committee of the House of Lords has just launched an inquiry into UK competition policy after Brexit. The closing date for written submission is Friday 15 September 2017. The Sub-Committee is asking for written evidence on particular questions by 15 September 2017. Link to the questions here and form to submit answers here. It will hold oral evidence session in October. The Sub-Committee is chaired by Lord Whitty and its members are listed here.

The inquiry will explore:
• Opportunities and challenges in re-shaping UK competition policy post-Brexit;
• The implications of Brexit for the application and enforcement of competition law in the UK;
• Whether UK authorities have the capacity and resources to cope with additional responsibilities and a greater caseload;
• Potential state aid obligations in any UK-EU free trade agreement;
• Future cooperation between the UK and the EU on investigations and enforcement actions.

Parliament debates post-Brexit sanctions

The House of Commons is debating the implications of sanctions policy today. Debate pack of background material and details are here, and live feed on Parliament TV here.  This follows a public consultation on the future legal framework for imposing and implementing sanctions and the announcement of new sanctions legislation in the Queen’s Speech. Tomorrow the EU External Affairs Sub-Committee of the House of Lords will hear evidence as part of its inquiry into UK sanctions policy after Brexit, including from Maya Lester QC. Details here and coverage here.

EU trade deals and the death of Investor-to-State Dispute Settlement

Aidan Robertson QC

The EU is about to sign a free trade agreement with Japan and it has released, in the last few days, a short FAQ document. Usually such agreements included investor-state dispute resolution mechanisms such as UNCITRAL, ICSID, and so on. The EU’s policy on this is made clear on page 6 of the recent FAQ:

“A new system – called the Investment Court System, with judges appointed by the two parties to the FTA and public oversight – is the EU’s agreed approach that it is pursuing from now on in its trade agreements. This is also the case with Japan. Anything less ambitious, including coming back to the old Investor-to-State Dispute Settlement, is not acceptable. For the EU ISDS is dead.”

Thus, even if the UK secures a trade deal with the EU, disputes will not (on the EU’s approach) go to UNCITRAL or ICSID or anywhere else but the Investment Court System that is outlined in the FAQ.