Alignment or Divergence? An Analysis of UK and EU Competition Law Post-Brexit with a Particular Focus on Merger Control
| Date | 01 January 2023 |
| Author |
96
Alignment or Divergence? An Analysis of UK
and EU Competition Law Post-Brexit with a
Particular Focus on Merger Control
ELAINE DUNNE*
Introduction
As the Brexit transition period under the Withdrawal Agreement1 (the
“Agreement”) ended on 1 January 2021, the UK has now assumed its position as a
third country for the purpose of European Union (EU or “Union”) law.
is article seeks to explore the scope for divergence from EU competition law
and policy by the UK by virtue of its exit from the EU. Decisions adopted by
‘institutions, bodies, oces and agencies of the Union’ prior to the end of the
transition period will be ‘binding on and in the United Kingdom.’2 However, with
respect to proceedings instituted aer 31 December 2020, the EU acquis3 ceases
to apply. Pre-Brexit, there was clear alignment of UK and EU competition law and
policy as ‘the two sets of parallel EU and UK competition rules were inextricably
linked’;4 however, this ‘historical convergence of competition law … brought
about in the context of shared membership of the EU over the last ve decades
will be replaced by divergence.’5 Rodger and Stephan suggest that the impact
of Brexit upon competition law is likely to be ‘most starkly felt in the context of
merger control’6 as the key feature of the pre-Brexit position in relation to merger
control—the ‘one stop shop’ principle—is to be eroded.7
* BCL Graduate, University College Dublin. Trainee Solicitor DLA Piper LLP. I would like to
extend a sincere thanks to Associate Professor Dr Mary Catherine Lucey of the Sutherland School
of Law, University College Dublinfor her direction and g uidance. I would further like to thank
my family for their unwavering support – a particular thanks is due to my father for his time and
patience. All views are the author’s alone.
1 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from
the European Union and the European Atomic Energy Community [2019] OJ C 384I/1.
2 ibid art 95(1).
3 e EU acquis refers to the body of law that binds all EU member states. is includes the treaties,
secondary legislation adopted on the basis of the treaties, the jurisprudence of the CJEU and
international agreements concluded by the EU. See Eur-Lex Summaries, ‘Acquis’
europa.eu/EN/legal-content/glossary/acquis.html> accessed 1 August 2023.
4 Barry Rodger and Andreas Stephan, Brexit and Competition Law (Routledge Taylor & Francis
Group 2021) vi.
5 Vincent JG Power SC, ‘Competition’ in Christopher McCrudden (eds), e Law and Practice of the
Ireland – Northern Ireland Protocol (Cambridge University Press 2022) 223.
6 Rodger and Stephan (n 4) 60.
7 ibid; European Commission, Notice to Stakeholders: Withdrawal of the United Kingdom and EU
rules in the eld of competition (Brussels 2020) 5.
An Analysis of UK and EU Competition Law Post-Brexit 97
Part One of this paper considers the architecture of the pre-Brexit competition
law and policy framework and the relationship between UK and EU law. Part Two
explores the scope for potential divergence between the UK and EU’s competition
law and policy, triggered by the UK’s desire to restore its own sovereignty. Part
ree addresses the impact of Brexit in the context of merger control, in particular,
the erosion of the ‘one stop shop’ principle, as well as the potential challenges posed
to enforcement by parallel investigations. is Part suggests proposals for close
co-operation and alignment of procedures between the UK and EU, to ensure
that merger control operates to eectively protect UK and EU consumers. Part
Four considers the pre-Brexit enforcement position, the consequences of Brexit
for enforcement, and the need for future co-operative measures with respect to
competition law enforcement as a result of the exit of the Competition and Markets
Authority (CMA) from the European Competition Network (ECN). Part Four
concludes with a consideration of potential agreements that may be adopted to
promote cooperation and enforcement between the UK, the EU and National
Competition Authorities (NCAs). is article will convey, as Rodger and Stephan
suggest, that simply because ‘EU and UK rules were consistent with each other at
the point of Brexit, does not necessarily mean they will remain so over time’,8 as
competition law is not a legal discipline that ‘stands still for very long’.9 Ultimately,
the ‘historical convergence…brought about through shared EU membership will
now be replaced by divergence to a greater or lesser extent’ as the CMA seeks to
‘ex its muscles’ to assert its new jurisdiction.10
I. e Architecture of the Comp etition Law and Policy of the EU
and the UK prior to the UK’s Exit from the Union
e EU’s two most important competition law provisions are to be found in
Articles 101 and 102 of the Treaty on the Functioning of the European Union
(TFEU).
Article 101 TFEU generally prohibits ‘all agreements between undertakings …
which may aect trade between Member States and which have as their object or
eect the prevention restriction or distortion of competition within the internal
8 Rodger and Stephan (n 4) xii.
9 ibid xv. See for example: Antonio Capobianco andGaetano Lapenta, ‘e boundaries of public
interest in merger control: taking into account non-competition issues including industrial policy
and environmental protection’ in Ioannis Kokkoris andClaudia Lemus (eds) Research Handbook
on the Law and Economics of Competition Enforcement (Edward Elgar Publishing 2022) 339: ‘e
emergency of climate change, calls for more sustainable economic models, but also the rise of
protectionism and the Covid-19 pandemic have raised the question as to whether competition
policy should also be concerned about broader public interest goals and deal with two concerns in
particular, namely industrial policy and environmental protection.’
10 Power (n 5) 226.
98
market’.11 Any agreements found to have the object or eect of preventing
restricting or distorting competition within the internal market are automatically
rendered void by article 101(2). However, article 101(3), the exemption clause,
operates to permit an agreement between undertakings ‘which contributes to
improving the production or distribution of goods or to promoting technical or
economic progress, while allowing consumers a fair share of the resulting benet’,12
which does not ‘impose on the undertakings concerned restrictions which are not
indispensable to the attainment’ of the objectives set out in subsections (1) and
(2) and which does not give those undertakings the ‘possibility of eliminating
competition in respect of a substantial part of the products in question.’ Article
101(3) can be applied to individual cases or to categories of agreements or
concerted practices, commonly known as block exemptions.13
Article 102 TFEU prohibits the abuse by an undertaking of ‘a dominant position
within the internal market or a substantial part of it’. Dominance was dened
by the Court of Justice of the European Union (CJEU) in British Airways plc v
Commission as ‘a position of economic strength enjoyed by an undertaking which
enables it to prevent eective competition being maintained on the relevant
market by giving it the power to behave to an appreciable extent independently of
its competitors, of its customers and ultimately of its consumers.’14
sets out the rules applicable to mergers and acquisitions, referred to under the
EUMR as ‘concentrations’. Under article 3 of the EUMR:
A concentration shall be deemed to arise where a change of control on
a lasting basis results from: (a) the merger of two or more previously
independent under- takings or parts of undertakings, or (b) the acquisition,
by one or more persons already controlling at least one undertaking, or by
one or more undertakings, whether by purchase of securities or assets, by
contract or by any other means, of direct or indirect control of the whole or
parts of one or more other undertakings.16
Under the Merger Regulation, the Commission shall prohibit a concentration
which would signicantly impede eective competition (“SIEC”) in the internal
market or a substantial part of it as a result of the creation or strengthening of a
dominant position.17
11 Art 101(1) T FEU.
12 Art 101(3) T FEU.
13 Guidelines on the application of Article 81(3) of the Treaty [2004] OJ C 101/97.
14 Case T-219/99 British Airways plc v Commission of the European Communities [2003] ECR II-
5917.
15 [2004] O J L 24/1.
16 EUMR , art 3.
17 EUMR , art 1(3).
An Analysis of UK and EU Competition Law Post-Brexit 99
In order to fall within the scope of the EUMR, the transaction concerned must
be a concentration and must also be a transaction with a community dimension.
A concentration has a community dimension where the conditions set out in
article 1 of the EUMR are satised. e rst test involves satisfying two criteria
namely where ‘the combined aggregate worldwide turnover of all the undertakings
concerned is more that EUR 5 000 million; and the aggregate Community-wide
turnover of each of at least two of the undertakings concerned is more than EUR
250 million, unless each of the undertakings concerned achieves more than two-
third of its aggregate Community-wide turnover within one and the same Member
Stat e .’18
If a concentration does not meet these thresholds, then article 1(3) EUMR
provides a four part test for establishing a community dimension.19 Where a
concentration with a community dimension is established, the Commission has
exclusive competence to review such a concentration. is is known as the ‘one
stop shop’ principle. However, this competence is not absolute and is subject to
three principal exceptions. Under article 9 EUMR , if there is a ‘d istinct market’, the
Commission may refer the notied concentration to the relevant NCA. Moreover,
article 21(4) EUMR further limits the application of the EUMR, in particular,
article 21(4) permits the exclusion of the application of the EUMR where matters
of public security are concerned.
e ‘one stop shop’ means that where a concentration is cleared by the Commission,
the same transaction does not require separate approval from the EU member state
NCAs, thereby preventing parallel investigations, avoiding the risk of conicting
outcomes and improving ‘administrative eciency’.20 Importantly, EU competition
laws are applicable to an undertaking that is located outside the community
but trades within the community, thus, EU jurisdiction is established where
competition within the internal market is capable of being distorted.21
e competition law and policy of the EU has moulded competition law in the
UK with the passing of the Competition Act 1998 (the “1998 Act”) and the
Enterprise Act 2002 (the “2002 Act”). e supremacy of EU law, further enshrined
in section 60(1) of the 1998 Act, ensured substantial harmony between EU and
UK competition law, stipulating that ‘questions arising under this Part in relation
to competition within the United Kingdom are dealt with in a manner which is
consistent with the treatment of corresponding questions arising in EU law in
relation to competition within the European Union.’ e central UK competition
18 EUMR , art 1(2).
19 EUMR , art 1(3).
20 European Commission, ‘Commission Sta Working Document: Evaluation of procedural and
jurisdictional aspects of the EU Merger Control’ (26 March 2021) 69
competition/consultations/2021_merger_control/SWD_ndings_of_evaluation.pdf> accessed
2 August 2023.
21 Commission Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the
European Union to horizontal co-operation agreements [2011] OJ C 11/1.
100
enforcement agency is the CMA. e Modernisation Regulation22 permits the
sharing of powers of enforcement of Articles 101 and 102 TFEU between NCAs,
in this case, the CMA, and the Commission.
However, prior to Brexit, UK law in relation to merger control diered somewhat
to that of the EU.23 e test applied by the UK’s CMA involved consideration as to
whether the merger eected a ‘substantial lessening of competition’.24 is can be
contrasted with the SIEC test prescribed by the EUMR.25 Nonetheless, these are
‘very largely the same concepts’,26 resulting in a substantial degree of consistency and
alignment of results.27 Importantly, however, where EU jurisdiction was established,
this precluded the application of national competition laws.28 Evidently, by virtue
of the supremacy of EU law, pre-Brexit there existed clear alignment of UK and
EU competition law and policy as ‘the two sets of parallel EU and UK competition
rules were inextricably linked’29 by virtue of the proximity of the relationship; a
proximate relationship that no longer exists as a consequence of the triggering of
Article 50 of the Treaty on European Union (TEU).
II. e Scope for Divergence Triggered by the Desire to Restore
UK Sovereignty
e retention of section 60 of the 1998 Act, a provision which requires a consistent
interpretation of competition prohibitions by the UK with the EU, would not have
aligned with what was thought to be one of the most important eects of Brexit:
the ideology that the UK’s exit from the EU would enable the UK to take back
control of its laws. is became more apparent from the House of Lords’ European
Union Committee Report on Brexit: Competition and State Aid, in which it was
concluded that section 60 would ‘no longer be appropriate in its current form
aer the UK leaves the EU.’30 e result was section 6(4) of the European Union
(Withdrawal) Act 2018 and section 60A of the Competition Act 1998. Section
6(4) of the European Union (Withdrawal) Act 2018 expressly permits a UK court
to depart from previous CJEU decisions much like it can depart from its own prior
case law. Section 60A of the 1998 Act, while stipulating that, inter alia, the CMA
must have regard to relevant decisions of the EU, nonetheless provides that it (the
22 Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid
down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1.
23 Ro dger and Stephan (n 4) 3.
24 Enterprise Act 2002 (UK), Part 3, Chapter 1.
25 EUMR, art 1(3); Lars-Hendrik Röller And Miguel De La Mano, ‘e Impact of the New
Substantive Test in European Merger Control’ (2006) 2(1) European Competition Journal, 9.
26 Power (n 5) 224.
27 Ro dger and Stephan (n 4) 3.
28 ibid.
29 ibid vi.
30 European Union Select Committee, Brexit: Competition and State Aid (HL 2017-19 67) para 82.
An Analysis of UK and EU Competition Law Post-Brexit 101
CMA) is not required to ‘secure that there is no inconsistency.’ Section 60A(7) of
the 1998 Act, in conjunction with the guidance issued by HM Government to the
CMA, permits the UK to depart from EU principles and case law if they deem
it ‘appropriate to do so’ having considered ‘the particular circumstances under
consideration.’31
e retention of the provisions equivalent to Articles 101 and 102 TFEU for
the time being, at least, is a welcome recognition of the legal certainty that the
provisions provide for consumers and businesses.32 Research suggests that the ‘EU’s
outsized inuence in regulating global markets’33 has led to the promulgation of
competition laws across non-EU countries, that closely resemble those of the EU.34
Such is the inuence of EU competition law that the standard has been deemed
to be ‘very much an international standard, applying not only throughout the EU
but in jurisdictions as diverse as Japan, China and Brazil.’35 Competition law has a
‘peculiar feature among areas of economic regulation’ in that the same transaction
can be subject to review in several jurisdictions provided their market is ‘aected’.36
Consequently, the most interventionist standard or ‘ag gressive regulator’ prevails.37
Given that the EU ‘consists of a consumer market that is too large and important
to abandon … EU competition laws have oen become the de facto global
competition standards.’38
As one of the ‘two largest antitrust jurisdictions in the world’, the EU has asserted
‘worldwide jurisdiction over M&A transactions’.39 In her extensive works on ‘the
Brussels Eect’, Bradford opines that ‘the EU today promulgates regulations that
inuences…how business is conducted, not just in Europe but everywhere in the
31 Competition Act 1998 (UK), s 60A (7); Competition and Markets Authority, Guidance on the
functions of the CMA aer the end of the Transition Period (1 December 2020) 29.
32 Vodafone Group plc, ‘Written Evidence to the House of Lords EU Internal Market Subcommittee’
internal-market-subcommittee/brexit-competition/written/70195.html> accessed 2 August
2023.
33 Anu Bradford and others, ‘e Global Dominance of European Competition Law Over American
Antitrust Law’ (2019) Columbia Law School Scholarship Archive – Faculty Publications, 6
scholarship> accessed 2 August 2023.
34 ibid 31.
35 Brexit Working Party of City of London Law Society Competition Law Committee, ‘e
Implications of Brexit for UK Competition Law: Practical Issues and Priorities’ [4.3]
www.monckton.com/wp-content/uploads/2017/04/City-of-London-Law-Society-paper.pdf>
accessed 2 August 2023.
36 Anu Bradford, e Brussels Eect How the European Union Rules the World (OUP 2020) chs 4 &
11.
37 ibid.
38 ibid 12–13.
39 Laura McCaskill, ‘e EU Merger Regu lation: A One-Stop Shop or a Procedural Mineeld?’
(2013) accessed 2 August
2023.
102
wo rld .’ 40 Arguing that ‘competition law oers one of the most prominent examples
of the EU’s global regulatory hegemony’,41 Bradford suggests that the Brussels
Eect42 is likely attributable to the size of the EU, together with the EU’s ability
to ‘leverage its market access as a tool to attract regulatory adjustment’.43 As long as
EU consumers are aected, the EU has jurisdiction to investigate anti-competitive
conduct. Consequently, the EU standard has become the de facto globa l standard.
erefore, in the absence of any binding obligation to do so, the argument for the
maintenance of alignment of competition rules between the UK and the EU is
sustained by the reality that competition law is ‘highly inelastic’44 and transcends
borders.
Of course, the arguments against alignment from a UK perspective are likely to
include the supposition that Brexit opens the door for the UK to adopt its own
stance in the eld of competition law. e opportunity to act unilaterally and to
depart from EU law and jurisprudence will enable the UK courts and authorities
to act in a manner that is suitable for UK markets.45 Moreover, it has been argued
that the EUs ‘regulatory clout’ will be diminished post-Brexit with the approximate
een percent decrease in the EU’s market size.46 As well as the loss of market size
by virtue of Brexit, the ‘notable regulatory capacity’47 once supplied by the UK will
no longer be available. Consequently, the suggestion that the demise of the Brussels
Eect is forthcoming, emerges. It may be argued that post-Brexit, the UK is now
positioned to set its own rules and establish its own regulatory clout. e reality,
however, as illustrated by Bradford, is arguably the opposite. e promise to restore
the UK’s sovereignty aer breaking free from EU regulation, is circumscribed by
the fact that the EU is the number one destination for British exports in most areas
of production.48 erefore, in order to be permitted access to EU markets, the UK
will be required to conform to EU rules and so the ‘de facto Brussels Eect’ rema ins
ever prevalent and the ‘illusion of regulatory freedom’ is shattered.49
Bradford’s obser vations, in conjunction with the empirical research,50 further
supports this author’s contention that the UK should continue to pay particular
attention to EU competition law into the future despite s 60A and the absence
of any binding obligation to do so, as ‘the commonality of principles’ is of
40 Bradford (n 36) 4.
41 ibid ch 4.
42 e Brussels Eect refers to the way in which the rules and regulations from Brussels (ie the EU)
have been promulgated worldwide; see Anu Bradford, ‘Brussels Eect’ (2012) 107(1) North
Western University Law Review, 1.
43 Bradford (n 36) 43.
44 ibid 478.
45 Rodger and Stephan (n 4) 7.
46 Bradford (n 36) 882.
47 ibid.
48 ibid 884.
49 ibid.
50 Se e text to n 34–35, n 38 & n 40.
An Analysis of UK and EU Competition Law Post-Brexit 103
‘considerable assistance’51 in enabling businesses to understand their obligations,
thereby mitigating the regulatory burden, and potential legal uncertainty for
businesses operating across jurisdictions.52 In addition, this ‘commonality’
further enables ‘eective enforcement in a way that is of benet to consumers’,53
thereby promoting fair, open and dynamic markets. Ultimately, the incentives
for maintaining regulatory alignment are likely to be too enticing, since EU rules
will remain a ‘precondition’ if UK companies wish to continue trading and doing
business in the EU.54
III. Merger Control
Rodger and Stephan suggest that the impact of Brexit upon competition law is
likely to be ‘most starkly felt in the context of merger control.’55 e key feature
of the pre-Brexit position in relation to merger control, being the ‘one stop shop’
principle, is to be eroded.56 is principle operated such that subject to meeting
specied turnover thresholds, the ability to investigate a merger lay solely within
the jurisdiction of the EU by virtue of the EUMR. is guaranteed that the
merger was investigated solely by the Commission and was not, at the same time,
subject to a parallel investigation by the NCA. is ensured that there were no
divergent decisions and remedies. Subsequent to Brexit, however, the Trade and
Co-operation Agreement (TCA) simply provides that ‘each Part y shall maintain a
competition law which eectively addresses the following anticompetitive business
practices … mergers or acquisitions and … concentrations, between economic
actors which may have signicant anticompetitive eects’57 and thus, does not
provide for a harmonised EU-UK approach to merger control.
Instead, the position is that where a merger aects the UK and also has an EU
dimension, the merger will be investigated by both the CMA and the Commission
in parallel.58 Key dierences between the UK and EU regimes arise with respect
51 Competition Law Committee of the City of London Law Society, ‘Written Evidence to the
House of Lords EU Internal Market Subcommittee’ para 2.7
writtenevidence/committeeevidence.svc/evidencedocument/eu-internal-market-subcommittee/
brexit-competition/written/70151.html> accessed 4 November 2021.
52 ibid.
53 ibid.
54 Bradford (n 38) 885.
55 Ro dger and Stephan (n 4) 60.
56 European Commission, Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in
the Field of Competition (Brussels 2020) 5.
57 Trade and Cooperation Agreement between the European Union and the European Atomic
Energy Community, of the one part, and the United Kingdom of Great Britain and Northern
Ireland, of the other part [2021] OJ L 149/10, art 359 (Trade and Cooperation Agreement).
58 Practical Law Competition, ‘BCLWG issues paper on competition law options on Brexit’ (2016)
2 euters.com/w-004-1629?transitionType=Default&context
Data=(sc.Default)&rstPage=true> accessed 24 December 2021.
104
to notication requirements under each system. Under the EUMR, article 7
provides for a standstill obligation, and thus, no concentration which is subject
to investigation by the Commission, may be implemented until such time as
the concentration has been approved by the Commission. us, pre-Brexit, any
concentration with an EU and UK dimension was subject to ex ante approval and
consequently, was obliged to ‘standstill’ until approval was received.59 Under the
UK merger control regime, however, there is no such obligation. Notication of a
merger to the CMA is voluntary and thus may instead be subject to ex-post review.
erefore, in the UK, a deal can be closed, and a concentration may operate on the
market prior to receiving CMA clearance. Consequently, it may be that prior to
detection, a merged entity may operate on the market.
is divergence, post-Brexit, increases the risk of harmful anti-competitive practices
to UK consumers as those transactions which would have been subject to the ex-
ante EU system of approval may now also be under the jurisdiction of the CMA.
is concern has been alluded to by former CMA Chairperson Andrew Tyrie,
who suggests that consumers need ‘adequate protection’ from an ex-post review
system.60 Tyrie’s proposal for the implementation of a mandatory notication to
the CMA for concentrations over a certain specied threshold is a sound one. e
implementation of a mandatory notication requirement will ensure that large
mergers that are traditionally investigated by other competition authorities would
also be investigated at the same time by the CMA and parties would be prevented
from closing the transaction prior to the receipt of approval.61 Rodger and Stephan
suggest that a mandatory notication system would enable the CMA and the
Commission to begin their investigations at the same time, thereby aligning their
investigation timetables more closely.62 is coincides with the argument that
‘close cooperation between the two authorities will be important in creating more
consistency and alignment between assessment outcomes’.63
e proposal for the introduction of a mandatory notication system has been
rejected by the UK’s Brexit Competition Law Working Group (BCLWG). e
BCLWG adopt the view that the implementation of this proposal would not
be the best use of the CMA’s resources. e BCLWG take the view that it is
improbable that any ‘potentially problematic’ merger would go unnotied or fall
below the CMA’s ‘radar’.64 Further, it is noted that in any event, the CMA retain
59 EUMR , art 7(1).
60 Competition and Markets Authority, ‘Letter from Andrew Tyrie to the Secretary of State for
Business, Energy and Industrial Strategy’ (February 2019) 42
gov.uk/government/uploads/system/uploads/attachment_data/file/781151/Letter_from_
Andrew_Tyrie_to_the_Secretary_of_State_BEIS.pdf> accessed 2 August 2023.
61 ibid.
62 Ro dger and Stephan (n 4) 69.
63 ibid.
64 Brexit Competition Law Working Group, Conclusions and Recommendations (July 2017) 34.
An Analysis of UK and EU Competition Law Post-Brexit 105
the power to call in65 and review the merger, if necessary.66 However, failure to
implement this proposal will likely result in parties prioritising notication pre-
closing to the Commission and only notifying the CMA post-closing.67 e
absence of a mandatory notication requirement, together with the misalignment
in investigation timeframes that arises between a system of ex-ante and ex-post
review is likely to result in divergent investigation conclusions. By maintaining a
system of ex-post review, the UK runs the risk that the CMA will face diculties
in extracting ‘remedies appropriate for UK concerns’.68 Albeit that the CMA does
not appear to be circumspect in asserting its jurisdiction in the context of merger
control,69 it is suggested that ‘by strategically ling merger notications later in a
small economy than in large economies…a deal will already have passed review by
larger jurisdictions before an aected smaller jurisdiction has gathered facts on the
case and co-operated on the analysis with the larger jurisdiction’.70 erefore, it
may arguably be more dicult for the CMA to ‘go against the grain’ and adopt a
conclusion that is at odds with that of the Commission.
e diculties posed by the misalignment in timeframes for mergers subject to
parallel investigations is demonstrated by the GTCR/PR Newswire case.71 In this
case, GTCR, a US private equity rm, owned Cision, ‘a leading public relations
workow soware company’.72 GTCR agreed to acquire PR Newswire, ‘the third-
largest media contact database provider in the US through its Agility workow
soware suite.’73 e acquisition raised concerns due to the fact that Agility
soware was a direct competitor of Cision, and thus, the acquisition by GTCR of
PR Newswire would impact competition by enhancing Cision’s dominant position.
Scanlan notes that the US authority ‘had all but concluded its investigation when
65 In circumstances where a merger is not voluntarily notied to the CMA but it nonetheless comes
to the CMAs attention, whether through its merger intelligence or otherwise, the CMA may seek
further information by issuing the relevant parties with an inquiry letter. As necessary, the CMA
may call in the transaction for review and conduct a full merger investigation. See Competition
and Markets Authority, ‘Mergers: Guidance on the CMA’s jurisdiction and procedure’ (2022)
data/le/1044636/CMA2_guidance.pdf> accessed 2 August 2023.
66 Brexit Competition Law Working Group (n 64) 34.
67 Ronan Scanlan, ‘UK: Brexit - e need for a special approach to EU mergers’ (2018) Concurrences
7 national/uk-brexit-the-
need-for-a-special-approach-to-eu-mergers-86683-en> accessed 30 December 2021.
68 ibid.
69 Text to n 182 et seq.
70 Antonio Capobianco, John Davies and Sean F Ennis, ‘Implication of Globalisation for Competition
Policy: e Need for International Co-operation in Merger and Cartel Enforcement’ OECD
(20 June 2014) 39 int/88213/1/SSRN_id2450137.pdf>
accessed 20 April 2023.
71 Scanlan (n 67).
72 United States Department of Justice, ‘GTCR Agrees to Divest ird Largest Media Contact
Database Provider in the U.S. in Order to Proceed With Acquisition of PR Newswire’ (10 June
2016)
provider-us-order-proceed-acquisition> accessed 17 April 2023.
73 ibid.
106
the CMA launched its phase one investigation’.74 Albeit that in this case, the
divestiture agreed by the US authorities was deemed satisfactory by the CMA to
address UK concerns, this is not to be viewed as ‘a template for future UK and
EU cooperation’.75 In reality, where a transaction cleared by the EU is subsequently
investigated by the CMA, the likelihood that the CMA can extract remedies
appropriate to address the concerns of UK regulators is slim, when the ‘assets of the
merging party have already been irreversibly combined’.76
As alluded to, the UK merger control test is concerned with concentrations
that will substantially lessen competition, whereas the EUMR is concerned with
‘concentrations which may signicantly impede eective competition in the
internal market or in a substantial part of it.’77 Although as previously suggested, the
tests are for the most part, thought to be substantively aligned,78 there is still scope
for divergence as ‘this is not to suggest that outcomes will always be identical’.79
In circumstances where both the EU and the UK will investigate in parallel with
one another, ‘close co-operation between the CMA and the Commission’, in
particular, ‘joint investigations’ is important in these cases, to enable the CMA and
the Commission to aid each other and ‘to appreciate more fully the others views as
well as aiding their respective decision-making, thereby reducing the likelihood of
divergent outcomes.’80
In addition to the rst recommendation that the CMA impose a mandatory
notication requirement, secondly, it is suggested that the CMA aim to align
its timeframes for investigations with that of the Commission. e current
timeframe for a phase one investigation by the CMA is 40 days, whereas a phase
one investigation by the Commission provides for a period of almost half that of
the CMA, 25 days. Scanlan notes that ‘active alignment of these timetables could
reduce the risk of delay or divergence.’81 e case of Unilever/Sara Lee displays the
potential diculties that misalignment in timeframes might trigger due to the
inherent harmful eect that this might create for designing business portfolios
that are acceptable for trading in multiple jurisdictions. In Unilever/Sara Lee,
Unilever, whose primary business was trade in ‘the food, home care and personal
care categories’82 sought to acquire Sara Lee, a worldwide supplier of consumer
74 Scanlan (n 67).
75 ibid 7.
76 OECD, ‘Disentangling Consummated Mergers: Experiences and Challenges’ (2022) 32
challenges-2022.pdf> accessed 19 April 2023.
77 EUMR , recital 5.
78 Ro dger and Stephan (n 4) 3.
79 ibid.
80 Leig h M Davison, ‘Envisaging the Post-Brexit Landscape: An Articulation of the Likely Changes
to the EU–UK Competition Po licy Relationship’ (2018) 39 Liverpool Law Review 99–121, 119.
81 Scanlan (n 67) 2.
82 Case M.5658 Unilever/Sara Lee Body Care, Commission Decision of 17.11.2010 declaring a
concentration to be compatible with the internal market and the EEA Agreement, 2–3.
An Analysis of UK and EU Competition Law Post-Brexit 107
goods in a wide variety of sectors, including ‘the global body care business which
manufactures and supplies bath and shower products, deodorants’83 etc. e
EU Commission required the divestiture of Sara Lee’s ‘Sanex’ brand. e South
African Competition Commission (SACC) considered the commercial and
practical implications of requiring the divestiture of Sara Lee’s ‘Status’ brand. To
require the divestment of the ‘Status’ brand in circumstances where the EU had
required the divestment of the ‘Sanex’ brand would mean that South Africa would
likely be faced with a ‘double divestiture’ since it would be impractical for Sara Lee
to operate a brand in certain parts of the world.84 e SACC concluded that the
divestment of ‘Sanex’ was not sucient to address its concerns and so Unilever was
forced to sell both ‘Sanex’ and ‘Status’, as keeping both, to operate only in certain
parts of the world, was not commercially practicable.85
Scanlan oers the example of Teva/Actavis to display the potential issues that
misalignment might trigger.86 In this case, Teva, a global pharmaceutical company
proposed to acquire the generic pharmaceutical business of Allergen (formally
known as Actavis). Finding that the ‘transaction would combine two of the four
largest generic players globally’,87 the Commission accepted commitments that the
company would ‘sell a “divestment business” that covered Ireland and the UK’, to
alleviate the competition concerns triggered by the merger.88 In the post-Brexit
context, the Commission, under the EUMR, would only have been concerned
with the impact of the merger in Ireland and thus, would not be addressing UK
concerns.89 Consequently, a parallel investigation would likely be opened by the
CMA (subsequent to the closing of the deal), to address any UK concerns.
e importance of the alignment of timeframes is sustained by the reality that
‘remedies would only be feasible if notication is done at such time so as to
allow agencies to discuss at the main decision making moments in cases.’90 In this
instance, the misalignment in timing may have presented diculties for the CMA
in designing a suitable divestment scheme91 in the absence of at least the potential
opportunity for ‘meaningful discussion prior to important milestones in the case’.92
83 ibid.
84 John Ratli, Frédéric Louis and Cormac O’Daly, ‘International Merger Remedies’ in Ilene Knable
Gotts (ed), e Merger Control Review (Law Business Research Ltd 2018) 42.
85 ibid.
86 Scanlan (n 67) 3.
87 Case M.7746 Teva / Allergan Generics, Commission decision pursuant to Article 6(1)(b) in
conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the
Agreement on the European Economic Area.
88 Scanlan (n 67) 3.
89 ibid.
90 ibid 14.
91 ibid.
92 International Competition Network, ‘ICN Merger Working Group Interim Report on the
Status of the International Merger Enforcement Cooperation Proje ct’ 13 ttps://centrocedec.
les.wordpress.com/2015/07/icn-merger-working-group-interim-report-on-the-status-of-the-
international-merger-enforcement-cooperation-project2014.pdf> accessed 23 March 2022.
108
e argument for active alignment of timetables is reinforced by the experiences
of International Competition Network (ICN) members in the context of merger
control. e contributors at a teleseminar hosted by the ICN with respect to
‘practical aspects of international cooperation in merger cases’ suggested that ‘the
biggest limitation to cooperation tends to be unaligned timing of reviews’.93 e
divergence in timing of notications can result in authorities having to play ‘catch
u p’. 94 e case of Eurotunnel/SeaFrance is indicative.
In Eurotunnel, the predecessor to the CMA, the UK Competition Commission
(CC) prohibited Eurotunnel operating ferry services at the Port of Dover, thereby
eectively blocking a merger between Eurotunnel and SeaFrance. e merger
was approved by the French Competition Authority (FCC) ten days earlier. As
a consequence of the misalignment in timings, ‘the CC was unable to require
full divestiture because of the order of the FCC but instead ordered a partial
prohibition.’95
Moreover, the misalignment of timetables is alluded to by the BCLWG, in whose
report it is noted that this could potentially result in ‘the CMA expending excessive
resources on cases that are likely to be prohibited by the EC in any event’96 or vice
versa. It is well established that where ‘competition authorities independently
impose remedies with global implications, the most interventionist standard will
be the one that prevails’.97 e controversial case of GE/Honeywell is instructive.
e merger between GE and Honeywell was prohibited by the Commission on the
grounds that it ‘would have severely reduced competition in the aerospace industry
and resulted ultimately in higher prices for customers, particularly airlines’.98 e
merger was, however, approved by the US Department of Justice (DOJ). While the
Commission and the US DOJ worked in close co-operation, ‘each authority has to
perform its own assessment and the risk of dissenting views, although regrettable,
can never be totally excluded.’99 Subsequently, EU Commissioner Mario Monti
expressed a desire to strengthen bilateral co-operation relations between the EU
and the US in order to mitigate the risk of future divergence.100 e merger (or
rather non-merger, as the Commission’s decision derailed the merger entirely) is
demonstrative of the impact of unilateral investigations and remedy design.
93 ibid.
94 ibid.
95 Groupe Eurotunnel S.A. and SeaFrance S.A. merger inquiry, A report on the completed acquisition
by Groupe Eurotunnel S.A. of certain assets of former SeaFrance S .A., UK Competition Commission
(6 June 2013); Scanlan (n 67).
96 Brexit Competition Law Working Group (n 64) 33.
97 Antonio Capobianco, John Davies and Sean F Ennis, ‘Implication of Globalisation for Competition
Policy: e Need for International Co-operation in Merger and Cartel Enforcement’ OECD
(20 June 2014) 39 int/88213/1/SSRN_id2450137.pdf>
accessed 22 April 2023.
98 European Commission, ‘e Commission prohibits GE’s acquisition of Honeywell’ (3 July 2001)
99 ibid.
100 ibid.
An Analysis of UK and EU Competition Law Post-Brexit 109
Further recent examples include the concentration of Facebook/Kustomer in which
Facebook acquired Kustomer, an AI powered CRM platform. e transaction
was cleared by the CMA in phase one but was referred to phase two by the
Commission. Conversely, in Veolia/Suez the parties were successful in achieving
phase one remedies in the EU but not in the UK.101
In advocating for a special approach to EU mergers, Scanlan opines that the
CMA and the Commission should seek to ‘coordinate information gathering…
ensure alignment so far as possible in timing of key decision-making…anticipate
and manage potential divergence in the substantive assessment and remedies that
may dier between the UK and EU/EEA’.102 In addition to the introduction by
the CMA of a mandatory notication procedure and a cooperation agreement
on mergers between the EU and UK, this author agrees with Scanlan’s
recommendation that upon receipt of notication of a UK/EUMR merger, any
agreement between the UK and EU should provide that each authority is obliged
to make contact with the other no later than 10 days aer receipt of notication
of an anticipated merger from the parties.103 is will enable the CMA and the
Commission to ‘discuss whether the merger gave rise to distinct UK issues (which
would warrant a separate UK investigation in parallel with the Commission) or
genuine EEA-wide issues (that warranted a single Commission investigation, with
or without some UK input).’104 is close cooperation, in light of the dierent
merger control tests, would likely result in greater alignment of assessment ndings
and remedies, albeit that the ndings may not always be identical.105
Although Scanlan suggests that the ‘one stop shop’ principle might be preser ved by
oering parties a single point of contact in respect of a merger,106 this author does
not believe that this is a realistic prospect. While there is merit in the suggestion,
a more realistic option is to adopt the considerations pertaining to a cooperation
agreement,107 thereby providing a legal basis that will enable the two authorities
to co-ordinate investigations and to exchange information, such that either
authority does not have to undertake an investigation de novo, thereby improving
the eciency and eectiveness of any investigation. us, either part y could
take into account the ndings of another, ‘without completing its own in depth
investigation’.108
101 Competition and Markets Authority, ‘Completed acquisition by Veolia Environnement S.A. of a
minority shareholding in Suez S.A. and the anticipated public takeover bid by Ve olia Environnement
S.A. for the remaining share capital of Suez S.A. Decision on relevant merger situation and
substantial lessening of competition’ (18 January 2022) .uk/
media/61e6b1a9d3bf7f054c397c73/Full_text_decision.pdf> accessed 23 April 2023.
102 Scanlan (n 67) 5.
103 ibid 6.
104 ibid.
105 ibid.
106 ibid 7.
107 Text to n 193 et seq.
108 Brexit Competition Law Working Group (n 64) 33.
110
In addition, the UK’s desire to ‘take back control’109 may, as suggested110 by
commentators, result in a move, by the UK, towards more frequent public interest
interventions in merger control’.111 By virtue of section 42 of the 2002 Act, the
Secretary of State for Business and Trade can intervene in a merger transaction
where inter alia, the transaction raises potential concerns of public interest.112 By
contrast, under the EUMR, a member state is only permitted to intervene in a
transaction where the national interest consideration fell within one of the narrow,
specied categories to protect a ‘legitimate interest’.113 Commentators suggest that
the desire for greater scrutiny of mergers on public interest grounds has gained
momentum in the UK in particular.114 is is reected by the public debate sparked
by the acquisition of Cadbury by Kra115, as well as the proposed acquisition
of AstraZeneca by Pzer, aer which the UK Government, in announcing an
intention to review the public interest regime in the 2002 Act, spoke of the necessity
of being able to step in to ‘defend’ sectors important to Britain.116 Lyons, Reader
and Stephan, however, suggest that even in the absence of any reform to the public
interest regime of the 2002 Act, ‘there is evidence to suggest that public interest
interventions will become more prevalent post-Brexit.’117 e potential post-Brexit
landscape in this area is presented by Lyons, Reader and Stephan through the
example of the proposed acquisition of AstraZeneca by Pzer.118 As the transaction
would have been subject to EU jurisdiction, it has been suggested that a request
under article 21(4) of the EUMR would not have been granted by the Commission
and thus, if the transaction had occurre d post Brexit, it can by analogy, be suggested
that ‘the Secretary of State would have exercised their residual power under section
58(3) of the 2002 Act to propose a new public interest ground for ‘protection of
the UK science base’.119
In light of the likelihood of the increasing prevalence of public interest grounds in
the context of merger control post-Brexit, academics purport that there is merit
in the suggestion to repeal section 58(3) of the 2002 Act in order to prevent a
post-Brexit inux of public interest criteria, introduced on an ad-hoc basis in the
109 Bruce Lyons, David Reader and Andreas Stephan, ‘UK competition policy post-Brexit: taking
back control while resisting siren calls’ (2017) 5 Journal of Antitrust Enforcement 247, 348.
110 ibid.
111 ibid.
112 Competition Law Committee of the City of London Law Society, ‘Written Evidence to the
House of Lords Subcommittee on the EU Internal Market’ para 8.2
uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-internal-market-
subcommittee/brexit-competition/written/70151.html> accessed 2 August 2023.
113 Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings
(the EC Merger Regulation [2004] OJ L 24/1, art 21(4).
114 Lyons, Reader and Stephan (n 109) 353.
115 ibid.
116 European Union S elect Committee (n 30) para 137.
117 Lyons, Reader and Stephan (n 109) 357.
118 ibid.
119 ibid.
An Analysis of UK and EU Competition Law Post-Brexit 111
absence of sucient safeguards.120 On the contrary, however, the UK Government
has expressed a desire to extend its ability to intervene in mergers, in particular, on
grounds of national security.121 It is sugg ested that the proposals ‘amount to a wolf
in sheep’s clothing .’122 Fingleton suggests that ‘Melrose’s takeover of GKN in 2018
represents the most signicant shi since 2016 towards a new, more interventionist
regime.’123 Albeit that the matter raised national security concerns, ‘there was also
considerable concern with other issues such as employment, pensions, and long-
term investment’.124 While ultimately intervention was not on national security
grounds, the Secretary of State obtained commitments from Melrose which
included ‘operating as a UK business, headquartered and listed in the UK…
maintaining a UK workforce and respecting the existing employment rights of that
UK workforce, as well as closely engaging with their representatives. …continuing
to pay tax as a UK taxpayer’ and ‘making arrangements for current and future
pensioners which are to the satisfaction of trustees and the independent pensions
regulator.’125
Fingleton opines that these commitments demonstrate ‘the way in which the threat
of a national security intervention can be used to extract concessions unrelated to
national security’.126 It is suggested that Melrose/GKN highlights the increasing
possibility that the term ‘national security’ may lose the narrow meaning envisaged
by the draers of the 2002 Act.127 Ultimately, ‘expanding the scope and application
of the public interest exceptions is a slippery slope and, once the Secretary of State
blocks or permits one merger, it establishes an expectation that other interventions
are also justiable.’128
e argument for the repeal of section 58(3) of the 2002 Act is further strengthened
when one considers the EUMR’s arguably more corporation friendly regime. Under the
EUMR, ‘a Member State cannot intervene on other non-competition grounds unless
the EC assesses that the intervention would be compatible with the principles of Union
l a w ’. 129 Consequently, ‘the EC has rarely permitted interventions in EUMR cases by
Member States that go beyond those set out explicitly in Article 21’.130 It is submitted
120 ibid 358.
121 Department for Business, Energy & Industrial Strategy, National Security and Investment White
Paper: Government response to its consultation on proposed legislative reforms (CP 323, 2020).
122 John Fingleton, ‘Mergers and the public interest: a wolf in sheep’s clothing ’ (Fingleton Associates,
October 2018) 1
Mergers-and-the-public-interest-a-wolf-in-sheeps-clothing-Oct-2018.pdf> accessed 2 August
2023.
123 ibid 9.
124 ibid.
125 ibid.
126 ibid 10.
127 Rodger and Stephan (n 4) 71.
128 ibid 76.
129 Brexit Competition Law Working Group (n 64) 17.
130 ibid.
112
that the UK should consider whether merger control is the most pertinent area
in which ‘to enforce its strategy of protecting UK rms from unwanted foreign
investment’ and alternatively, whether this aim could be achieved by separate
reforms or policies.131 is argument is further sustained by the CMA who note that
intervention in mergers by the UK on public interest grounds should be approached
with caution, to avoid uncertainty in the decision making process, thereby potentially
impacting investment and trade in the UK.132 Furthermore, the OECD notes that
increased interventionist measures in mergers on the basis of public interest criteria
presents further diculties, namely diculties in designing appropriate remedies,
in addition to complex assessments of cross-border transactions.133 e BCLWG
rejected the idea of expanding the grounds permitting intervention on public interest
grounds, justifying its stance by citing reasons such as stunting economic growth
and the potential that such measures would ‘block pro-competitive mergers and…
permit anti-competitive mergers.’134 Moreover, public interest factors for mergers
have been described as a ‘step backwards in terms of competition policy in the UK’.135
It is clear that consideration of such non-competition factors would instead have a
negative impact upon competition. us, any decision of the Secretary of State to
exercise his/her residual power, or future legislative intervention in this area, should
be approached with caution. Ultimately, in order to mitigate the challenges posed
by increased intervention in mergers on public interest grounds, thereby creating
further divergence in merger control regimes, the UK should ‘consider adopting
checks and balances into their procedures to ensure that government intervention is
exercised under exceptional circumstances and in a transparent manner’.136 If any such
legislative intervention is pursued, it is important that principles of economics are
followed in relation to the policy features in order to mitigate the negative economic
consequences of such action’.137
A further eort by the UK to assert its ‘jurisdictional autonomy’138 is the
introduction of the National Security and Investment Act 2021 (the “2021
131 Lyons, Reader and Stephan (n 109) 357.
132 Competition and Markets Authority, ‘Submission from the Competition and Markets Authority
to the Business, Innovation and Skills Committee’s inquiry into the Government’s industrial
strategy’ (28 September 2016).
133 OECD, ‘Working Party No. 3 on Co-operation and Enforcement: Executive Summary of e
Roundtable on Public Interest Considerations in Merger Control’ (14 June 2016) 4.
134 Brexit Competition Law Working Group (n 64) 17–18.
135 Eversheds Sutherland (International) LLP, ‘Written Evidence to the House of Lords EU Internal
Markets Subcommittee’ para 9.1 ittenevidence/committee
evidence.svc/evidencedocument/eu-internal-market-subcommittee/brexit-competition/
written/70239.html> accessed 2 August 2023.
136 OECD (n 133).
137 Matthew Johnson, ‘e future of merger control: hard Brexit, dicult questions? (Oxera, 30
January 2017 < https://www.oxera .com/insights/agenda/articles/the-future-of-merger-control-
hard-brexit-dicult-questions/> accessed 2 August 2023.
138 Stephen Kon, ‘e Impact of Brexit on UK M&A’ (McFarlanes LLP, 27 January 2022) < https://
www.macfarlanes.com/what-we-think/in-depth/2022/the-impact-of-brexit-on-uk-m-a/>
accessed 2 August 2023.
An Analysis of UK and EU Competition Law Post-Brexit 113
Act”), which came into operation in January 2022. e 2021 Act requires inter
alia, mandatory notication of transactions within seventeen specied economic
sectors. Concerns have been raised by commentators in relation to the absence of
a denition for ‘national interest’ under the 2021 Act, as well as the broad powers
conferred on the Government and the consequent legal uncertainty for parties.139
e lack of denition as to what constitutes the ‘public interest’ for the purposes
of the 2021 Act gives rise challenges for the application of such legislation.140
It has been submitted that the Act will operate as another ‘irritant’ for M&A
transactions.141 Ultimately, in the absence of a bilateral agreement at present, it
is clear that both the CMA and Commission conduct investigations unilaterally,
each assessing territory specic concerns.
IV. Challenges to Eective Cooperation and Enforcement
e ECN operates to enable ‘eective…seamless cooperation’,142 with academics
suggesting that the most important feature of the ECN ‘is the possibility to both
exchange and use in evidence material gathered in another jurisdiction’.143 Although
the ability for to the UK to ‘set its own law was central to its vision’,144 the UK has
committed to ‘maintain the highest standards in the level playing eld areas’.145 e
most contentious aspect of the Brexit negotiations proved to be the level playing
eld, as the EU sought binding commitments from the UK in an eort to maintain
EU rules and standards due to the ‘geographical and economic proximity’146 while
the UK sought to regain the power to determine its own rules and obligations.147
Article 355 of the TCA establishes a commitment between the parties to prevent
‘distortions of trade or investment.’148 Moreover, article 359 obliges each party
to maintain a competition policy that will eectively address anticompetitive
practices.149
e scope for divergence in relation to substantive law and enforcement was
previously circumscribed by inter alia, the supremac y of EU law and s 60 of the
139 ibid.
140 OECD (n 133).
141 Kon (n 138).
142 Ariann a And rean gell i, ‘ EU Competition Law Put to the Brexit Test: What Impact Might the Exit of the
UK from the Union Have on the Enforcement of the Competition Rules?’ (2018) 11 (17) Yearbook of
Antitrust and Regulatory Studies 7, 22.
143 ibid.
144 Elena Ares and others, ‘e UK-EU Trade and Cooperation Agreement: Level Playing Field
(House of Commons Library, 20 May 2021) 4
documents/CBP-9190/CBP-9190.pdf> accessed 2 August 2023.
145 ibid.
146 ibid.
147 ibid.
148 Trade and Cooperation Agreement, art 355.
149 Trade and Cooperation Agreement, art 359.
114
1998 Act. In light of the repeal of s 60, and the cessation of the EU acquis in the UK ,
it is suggested by the City of London Law Society that ‘eective inter-agency co-
operation’150 between the European Commission and the C MA is vital post Brexit
given the ‘high volumes of trade’ and the corresponding reality that competition
matters transcend borders.151 Article 361(4) makes provision for the UK and EU
to ‘enter into a separation agreement on cooperation and coordination’ in order
that the European Commission, the EU27 competition authorities and the CMA
may exchange and utilise condential information.152
e EU has concluded various international a greements pertaining to cooperation
on competition matters and enforcement with various third countries.153 At the
time of writing,154 the Commission has adopted a Recommendation for a Council
Decision authorising the negotiation of an EU-UK Competition Cooperation
Agreement.155 e EC press release expressly notes that an ‘agreement may
include conditions for the exchange and use of condential information in the
context of antitrust and merger control matters’.156 Commentators suggest that
such an agreement is likely to be modelled upon the EU-Switzerland Agreement,
speculating that the EU and UK are likely to strive for a ‘Switzerland plus
agreement’.157 Any co-operation agreement between the EU and UK should be a
second generation co-operation agreement, adopting similar provisions to that of
the Swiss agreement, in particular the co-ordination of enforcement activities,158
and the discussion, exchange and transmission by either party, of information in
their possession,159 including information obtained from an investigative process,160
even in the absence of the consent of the parties, where the same transaction is
150 Brexit Working Party (n 35) para 2.10.
151 ibid.
152 Trade and Cooperation Agreement, art 361(4).
153 Agreement between the European Communities and the Government of Canada regarding the
application of their competition laws [1999] OJ L 175/50; Agreement between the European
Community and the Government of Japan concerning cooperation on anti-competitive activities
[2003] OJ L 183/12; Agreement between the EU and the Republic of Korea concerning
cooperation on anti-competitive activities [2009] OJ L 202/36; Agreement between the
European Union and the Swiss Confederation concerning cooperation on the application of their
competition laws [2014] OJ L 347/3.
154 April 2023.
155 European Commission, ‘Recommendation for a Council Decision authorising the opening of
negotiations on an agreement between the European Union and United Kingdom of Great
Britain and Northern Ireland on cooperation and exchange of information in competition
matters’ COM(2021) 228 nal (11 May 2021).
156 ibid.
157 James Bourke, ‘A missing piece of the puzzle : a Competition Law Cooperation Agreement
between the UK and EU’ (EU Relations Law, 24 February 2021) .com/
blog/a-missing-piece-of-the-puzzle-a-competition-law-cooperation-agreement-between-the-uk-
and-eu> accessed 2 August 2023.
158 Agreement between the European Un ion and the Swiss Confederation concerning cooperation on
the application of their competition laws [2014] OJ L 347/3, art 4(1) (EU-Switzerland Agreement).
159 EU-Switzerland Agreement, art 7.
160 EU-Switzerland Agreement, art 7(2).
An Analysis of UK and EU Competition Law Post-Brexit 115
being investigated.161
It is suggested that a ‘Switzerland plus agreement’ would incorporate provisions in
relation to information sharing, modelled upon Article 12 of Regulation 1/2003.162
Similar to the EU/Swiss agreement, a prohibition of the sharing of information
‘under the Parties’ lenienc y or settlement procedures, unless the undertaking which
provided the information has given its express consent in writing’163 is likely to be
a provision in any EU/UK agreement. Moreover, such an agreement would likely
incorporate positive and negative comity provisions.164 e investigation into
the practices of AC Nielsen Company illustrates how positive comity is likely to
operate.165 In this instance, the commission and the US Department of Justice
received complaints of abuse by AC Nielsen Company of its dominant position.
In light of the fact that the allegedly abusive practice had ‘its greatest impact in
Europe, the Department of Justice let the Commission take the lead once it was
condent that it had a rm intention to act… At every stage during negotiations
the Department of Justice was informed of progress and given an opportunity
to comment on the undertakings being sought’.166 Additionally, it is suggested
that whereas the EU/Swiss agreement makes provision for the meetings of the
competition authorities at the appropriate level,167 a Switzerland Plus agreement
would, in addition, permit the CMA’s attendance at ECN meetings,168 be it in an
observer capacity or otherwise.
Under the EUMR, article 19 requires that the Form CO169 be transmitted to the
competent authorities via the ECN within three days of receipt.170 e EU/Swiss
161 EU-Switzerland Agreement, art 7(4).
162 Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid
down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1, art 12.
163 EU-Switzerland Agreement, art 7(6).
164 Bourke (n 157).
165 Positive comity permits one party to request another party to ‘take appropriate enforcement
actions with respect to anti-competitive activities occurring in the territory of the requested
party that adversely aect important interests of the requesting party’; see OECD, ‘Provisions
on Positive Comity’ (2021) n-inventory-
provisions-positive-comity.pdf> accessed 2 August 2023. By contrast, negative comity ‘involves
a country’s consideration of how to prevent its laws and law enforcement actions from harming
another country’s important interests, and avoid conicts’; see OECD, ‘Provisions on Negative
Comity’ (2021) ry-provisions-on-
negative-comity.pdf> accessed 2 August 2023.
166 Working Group on the Interaction between Trade and Competition Policy, Approaches to
promoting cooperation and communication among WTO Members including in the eld of technical
cooperation (WTO, 12 July 1999)
DP.aspx?language=E&CatalogueIdList=6910> accessed 18 April 2023.
167 EU-Switzerland Agreement, art 11(3).
168 Bourke (n 157).
169 e EU’s ocial forms for standard merger notications annexed to Commission Implementing
Regulation (EU) No 1269/2013 amending Reg ulation (EC) No 802/2004 implementing
Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings
(Text with EEA relevance) [2013] OJ L 336/1.
170 Scanlan (n 67).
116
agreement provides for mutual notication ‘either at the point the Commission
takes an Article 6(1)(c) decision or at the point where ComCo takes a decision
to initiate a phase two investigation.’171 It is suggested that a ‘Switzerland plus
agreement’ would envisage notication at a much earlier stage than that provided
for in the EU/Swiss agreement, albeit that it may not be as timely as notication via
the ECN.172
e BCLWG, writing pre-Brexit, suggested that strong consideration should be
given to maintaining the UK’s membership of the ECN, or ‘at least the forum for
European Competition authorities which includes the EEA authorities.’173 It is
further recognised that if the CMA is to replicate its ‘extensive mutual assistance’
practice that once existed as a member of the ECN, the UK Government ‘will
need to negotiate the most comprehensivecompetition cooperation arrangement
the EU has ever agreed with a third country.’174 In the absence of the UK’s
continued membership of the ECN, a desirable approach would, as suggested by
the BCLWG, be the adoption of a formal bilateral agreement for cooperation and
enforcement with ‘reciprocal information gateways’ between the EU and UK, that
will also operate between the UK and the National Competition Authorities.175
Unfortunately, in the absence of remaining a party to the ECN, any model of
agreement, even one as wide reaching as the EU-Switzerland agreement will result
in limitations upon the exchange and use of information.176 Moreover, as the UK
is no longer a beneciary of any agreements on cooperation and enforcement
concluded between the EU and other third countries, the UK, in order to enhance
its competition law enforcement framework, will be forced to negotiate bilateral
co-operation agreements with other countries in order to assist the eective
enforcement of competition law.177 e CMA, as exhibited by the GTCR/PR
Newswire case,178 is not prohibited per se from cooperating with international
authorities in the absence of any formal agreement.179 Further, the Deutsche
Börse/London Stock Exchange Group proposed concentration, which would have
combined the activities of Europe’s two largest stock exchange operators, impacted
multiple member states including Germany, Italy and the United Kingdom. e
CMA in this instance cooperated closely with other NCAs, including the German
171 ibid.
172 ibid.
173 ibid 27.
174 European Union S elect Committee (n 30) para 169.
175 Brexit Competition Law Working Group (n 64) 28.
176 Barry Rodger and Andreas Stephan, ‘e Impact of Brexit on the Competition and Markets
Authority (CMA)’ (2021) 47(7) European Competition Law R eview 393.
177 European Union S elect Committee (n 30) para 169.
178 Competition and Markets Authority, ‘Written Evidence to the House of Lords EU Internal Market
Subcommittee’ para 43
evidencedocument/eu-internal-market-subcommittee/brexit-competition/written/69571.
html> accessed 10 October 2021.
179 ibid.
An Analysis of UK and EU Competition Law Post-Brexit 117
Bundeskartellamt and Italian AGCM, to ensure the Commission was aware of its
concerns.180
In its recent decision in Cargotec/Konecranes, the CMA noted that it had
‘cooperated extensively with the European Commission’ and ‘engaged closely with
… the US Department of Justice and the Australian Competition and Consumer
Commission – both in relation to the substantive assessment of competitive
eects and the assessment of potential remedies.’181 Simultaneously, however, the
CMA’s report denotes that it operates within a dierent legal framework and is
under no obligation to take investigative steps identical to the Commission.182 e
report also demonstrates the diculties posed by the absence of an agreement,
where information gathered by the Commission from third parties is subject to
strict condentiality controls.183 In the absence of waivers, ‘there is no available
mechanism for the CMA to access information provided by third parties to the
European Commission’.184 us, the importance of a binding bilateral agreement for
cross-border competition cooperation and enforcement should not be understated,
as the need for cooperation with the Commission and other jurisdictions is likely
to intensify with the ‘increasing number of cases.’185 Ultimately, as submitted by
Professor Whish, informal cooperation is no match for formal cooperation in
order to eectively ‘over-come the “leg al obstacles”’ that are posed by the sharing of
condential information.186
ree alternative options are presented by A Path For Europe with respect to
cooperation between the EU and the CMA in the context of mergers.
Option One
Option one envisages the TCA and international frameworks as the basis for
cooperation.187 Amongst the features of this proposed option include the CMA
and EU’s membership of the OECD and ICN. Similar, however, to concerns raised
by Professor Whish,188 Pollakowsky and Pulliam submit that having due regard to
‘the strong connections between the CMA and EC, and the expected high number
of parallel investigations and proceedings, the cooperation frameworks of the ICN
180 Scanlan (n 67) 8.
181 Competition and Markets Authority, Anticipated merger between Cargotec Corporation and
Konecranes plc Final Report (31 March 2022) 148.
182 ibid.
183 ibid 149.
184 ibid.
185 Competition and Markets Authority (n 178) para 43.
186 European Union S elect Committee (n 30) para 159.
187 A Path for Europe, ‘e Future of EU-UK Relations: Towards a Strong Partnership’ (Policy Paper,
24 January 2021) 16.
188 European Union S elect Committee (n 32) para 159.
118
and the OECD are not sucient’189 and thus vis-à-vis the erosion of the one stop
shop system and the consequent parallel investigations, international cooperation
frameworks are considered ‘not even close to an equivalent’190 to the cooperation
that existed by virtue of the ECN framework. e TCA does not make provision
for information exchange191 and with the slow development in international co-
operation pertaining to the transmission and use of condential information,192 it
is arguable that the TCA and international frameworks as the basis for cooperation
between the Commission and the CMA would be inadequate.
Option Two
e second option is that considered in the foregoing analysis, namely, a ded icated
EU-UK cooperation agreement. e importance of a bilateral co-operation
agreement is re-enforced by the arguable deciencies in international frameworks
providing for information exchange. Via the ECN, waivers facilitated the exchange
of condential information.193 Additionally, the EU-Swiss agreement permits the
exchange of condential information under certain conditions.194 e Nordic
Agreement on Cooperation in Competition Cases is a helpful precedent.195
In particular, this writer suggests that particular consideration be given to the
provision on the exchange of information therein. Article three permits the
exchange and use of condential information, stipulating that ‘for the purpose of
applying competition rules and merger control rules the competition authorities
of the Parties shall have the power to provide one another with and use in evidence
any matter of fact or of law, including condential information.’196
Option ree
e third proposal envisages an ECN+ model whereby the CMA would be
granted special observer status.197 Pollakowsky and Pulliam purport that by
granting the CMA ‘a special observer position’,198 the CMA and the Commission
189 Oliver Pollakowsky and Maria Pulliam, ‘Antitrust, Mergers and State Aid: Post-Brexit
Cooperation’ in A Path for Europe (n 187) 16.
190 ibid 18.
191 ibid 17.
192 United Nations Conference on Trade and Development ‘International cooperation in merger
cases as a tool for eective enforcement of competition law’ (27 April 2015) UN Doc TD/RBP/
CONF.8/4, 3.
193 ibid.
194 ibid.
195 Agreement between Denmark, Iceland, Norway and Sweden concerning cooperation in
competition cases (8 September 2017).
196 ibid art 3.
197 Pollakowsky and Pulliam (n 189) 19.
198 ibid.
An Analysis of UK and EU Competition Law Post-Brexit 119
could ‘continue to work closely on proceedings and competition policy, thereby
developing joint standards and enabling both enforcers and companies to have
legal certainty.’199 It is, however, this authors view that the ECN+ model granting
the CMA a special observer position is not a likely model for future cooperation.
Writing in relation to negotiating agreements with the EU generally, Leino
and Leppävirta suggest that ‘for non-EU States, the key problems…relate to the
lack of inuence in EU negotiations: it is more oen than not a take it or leave
it approach.’200 is writer suggests that parallels can be drawn with the grant of
observer status. It is unlikely that the CMA would be willing to participate in an
observer position in circumstances where ‘the chances of making your voice heard
in EU negotiations are slim if you are not an EU Member State…It is rather the
simple fact that when you are out, you are out.’201 In light of the reality that for
the EU, ‘EU legislation is always the main rule, and consideration of the wishes of
non-members is the exception’,202 this model for future co-operation is unlikely to
sit well with a UK government who, by triggering article 50 TEU sought to restore
the ability to ‘set its own laws’.203
Recommendation
Ultimately, it is submitted that a formal bilateral cooperation agreement on merger
control, recognising and incorporating the contents of the preceding discussion, is
the most favourable option for future cooperation. e recent decision of the CMA
to block the Cargotec/Konecranes merger signies an expansive approach by the
CMA to assert its new jurisdiction. e merger was approved by the Commission
subject to the divestiture of certain businesses. e CMA, however, took the view
that the proposed remedies were insucient to alleviate competitions concerns,
namely that the ‘asset packages’ lacked sucient capabilities to ‘enable whoever
bought them to compete as strongly as the merging businesses do at present.’204
As the rst reported divergence between the EU and UK competition regulators,
there is a suggestion that this divergence may be the result of CMA asserting its
new-found powers in support of the UK’s view that competition enforcement
has become too ‘lax’ and markets have consequently become ‘too concentrated’.205
199 ibid.
200 Päivi Sirkku Maria Leino-Sandberg andLiisa Helena Leppävirta, ‘Does staying together mean
playing together? e inuence of EU law on co-operation between EU and non-EU States: the
Nordic example’ (2018) 43(3) European Law Review 295.
201 ibid.
202 ibid.
203 Ares and others (n 144) 4.
204 Competition and Markets Authority, ‘CM A blocks planned Cargotec/Konecrane merger’
(29 March 2022) .uk/government/news/cma-blocks-planned-cargotec-
konecranes-merger> accessed 2 August 2023.
205 Je Jaeckel and others, ‘Cargotec/Konecranes: Failed Shipping Equipment Merger Illustrates
Aggressive UK/U.S. Enforcement and Increased Skepticism of Remedies’ (JD Supra, 19 April
120
Moreover, the decision highlights the CMA’s preference for structural remedies,
such as prohibition and divestiture over behavioural remedies, which appear to
be more willingly accepted by the Commission.206 is divergent approach
highlights the potential for future divergent outcomes in the absence of the ‘one
stop shop’.
is notwithstanding, it is submitted, supported by Lucey’s analysis,207 that the
ICN framework with respect to mergers may assist to ll the post Brexit lacunae
in the area of merger control in the absence of a formal EU-UK agreement on
cooperation. e ICN, in providing benchmark practices has sought to standardise,
rather than harmonise the administration of competition law, by increasing
international ‘consensus about “superior practice”’.208 Lucey purports that ‘the eld
of mergers oers an excellent illustration of the ICN’s approach.’209 e ICN’s
eorts in the eld of mergers has been described as one of its ‘most prominent’
eorts.210 e ICN’s merger control framework consists of numerous so law
instruments such as inter alia, the Guiding Principles for Merger Notication and
Review and the 2016 Merger Remedies Guide,211 as well as templates for merger
notication and model waivers. is framework is enhanced by the regular training
sessions provided to members, in addition to the issuing of handbooks on merger
investigative techniques,212 thereby aiming to facilitate inter-agency cooperation
in merger investigations. It is purported that this coordination, albeit that the
2022)
accessed 3 August 2023.
206 For example, see the decision of the Commission in case M.9660 Google/Fitbit in which
the Commission approved the concentration subject to detailed behavioural remedies. e
concentration was notied prior to the end of the transition period and so was subject only
to investigation by the EU. e CMA’s Chief Executive Andrea Coscelli suggested that had
the transaction been subject to a parallel investigation by the CMA, it is unlikely that such
behavioural remedies would have been accepted; see Victoria Ibitoye, ‘Google-Fitbit’s EU
behavioral remedies would likely have failed in UK, CMA chief says’ (Mlex, 9 February 2021)
likely-have-failed-in-uk-cma-chief-says> accessed 22 April 2023.
207 Mary Catherine Lucey, ‘In the absence of global antitrust law: looking to ‘bricks and mortar’
institutions and agency networks’ (2021) 20(3) Journal of International Trade Law and Policy
145.
208 ibid 157–158.
209 ibid 158.
210 Georg Roebling, Stephen A Ryan and Dan Sjöblom, ‘e International Competition Network
(ICN) two years on: concrete results of a virtual network’ (Competition Policy Newsl etter, Autumn
2003) accessed 2
August 2023.
211 International Competition Network – ICN Merger Working Group, ‘Merger Remedies
Guide 2016’ (2016) nationalcompetitionnetwork.org/wp-content/
uploads/2018/05/MWG_RemediesGuide.pdf> accessed 2 August 2023.
212 Ariel Ezrachi (ed), Research Handbook on International Competition Law (Edward Elgar
Publishing 2012) 324.
An Analysis of UK and EU Competition Law Post-Brexit 121
so law ‘operates in the shadow of the law’,213 should not be underestimated.214
e eective impact of the ICN on international cooperation is presented by the
EU and US cooperation where cooperation has developed from the EU-US rst
cooperation agreement and ‘more recently the 2011 Best Practices on Cooperation
in Merger Investigations.’215 It is sug gested that ‘the growth of US-EU cooperation
on antitrust policy shows dierent methods can co-exist, provided objectives are
broadly shared – or at least understood’.216 e empirical data suggests that there
is ‘convergence toward ICN merger best practices’ in contrast to the impact of
the ICN in other areas of competition law.217 is is likely attributable to the fact
that the framework for merger control is the most ‘extensive’ of those issued by the
ICN.218
Albeit that in the case of mergers, consent to information transmission is thought
to be more forthcoming ‘because it is a consensual process in which all those
involved want to achieve a resolution’,219 the ICN framework enables ‘successful
cooperation between agencies even without the use of waivers.’220 is is exh ibited
by the Nestle/Pzer Nutrition case, in which Nestle, a public company active in
the production of food and beverages, proposed to acquire Pzer, ‘a diversied
pharmaceutical company’. 221
In this instance, the ICN’s Practical Guide proved ‘benecial for both ag encies
understanding of the relevant markets and theories of harm’222 in circumstances
where the discussions between the Australian Competition and Consumer
Commission (ACCC) and the Competition Commission of Pakistan (CCP) were
‘limited to non-condential information.’223 In addition, consultations between
the ACCC and the SACC to better understand ‘the suitability of an upfront
buyer that previously had been an exclusive licensee for Pzer products in South
Africa’224 enabled co-operation in relation to remedy design. Moreover, in UTC/
Goodrich, UTC’s acquisition of Goodrich raised competition concerns where
213 ibid.
214 John Ratli, Frédéric Louis and Cormac O’Daly ‘International Merger Remedies’ in Ilene Knable
Gotts (ed), e Merger Control Review (Law Business Research 2021).
215 ibid 35.
216 John J Parisi, ‘International Regulation of Mergers: More Convergence, Less Conict’ (2005)
61(509) NYU Annual Survey of American 509, 524.
217 Hikaru Yoshizawa, ‘How does the ICN accommodate its increasing diversity? Putting
benchmarking into practice’ GR:EEN-GEM Doctoral Working Paper
sites/cris.unu.edu/les/WP%2030_GREEN_Yoshizawa .pdf> accessed 2 August 2023.
218 ibid.
219 Roger and Stephan (n 176).
220 Ratli, Louis and O’Daly (n 214) 37.
221 e Competition Authority, ‘Determination of Merger Notication M/12/007 – Nestlé /
Pzer Nutrition’ (15 June 2012)
2017/04/M-12-007-Nestle-Pzer-Nutrition.pdf> accessed 27 April 2023.
222 ibid.
223 ibid.
224 ibid 40.
122
both parties ‘were active in the production and sale of aviation equipment on a
worldwide basis.’225 e Commission, the US DOJ and the Canadian Competition
Bureau ‘were in frequent contact throughout’.226 is case oers an example of
how close alignment in relation to ‘substantive points and timing’ enabled all three
competition authorities to deliver their decision to approve the acquisition at the
same time.227 UTC/Goodrich is notable for the ‘extensive cooperation’ between the
two competition authorities.228 e timing alignment and joint investigative eorts
resulted in the ability of the parties to achieve consensus on remedy design.229 In
addition, close cooperation between the US DOJ and the Commission in General
Electric/Alstom, resulted in the design of remedies that were suitable to address
the concerns of both the US and EU regulators, despite the fact the US concerns
were far more limited and did not share the same ‘far reaching’ concerns feared
by the Commission.230 e cooperation examples presented, in particular, the EU-
US cooperation on mergers, ‘should give comfort and encouragement’231 that the
Commission and the CMA may ‘nd common ground’232 notwithstanding the
post Brexit merger control landscape of unilateral, parallel investig ations, where
dierent merger control tests and criteria apply. e ICN framework may assist
to enable collaboration ‘on a trust basis through “so law” actions with the aim of
agreeing practical outputs which reduce … clashes among regimes which are not …
harmonised.’233
Conclusion
As substantial convergence turns to divergence, GE/Honeywell is demonstrative of
a ‘predictable scenario’234 in the post-Brexit merger control landscape of unilateral,
parallel investigations. In GE/Honeywell, ‘Europe prohibited a merger of U.S. rms
that America had cleared. American politicians responded: Take your hands o my
merger.’235 An analogy can be drawn in an EU-UK context as divergent decisions of
EU and UK authorities become a reality due to the loss of the ‘one stop shop’ for
225 Case M.6410 UTC/Goodrich, Commission Decision of 26.7.2012 addressed to United
Technologies Corporation, 10.
226 Ratli, Louis and O’Daly (n 214) 30.
227 International Competition Network (n 92) 13.
228 European Commission, ‘International enforcement cooperation in mergers: main principles and
recent experiences’ (Competition Policy Brief, May 2016) 5.
229 ibid.
230 ibid 4.
231 Parisi (n 216) 524.
232 ibid.
233 Lucey (n 207) 161.
234 Eleanor M Fox, ‘GE/Honeywell: e U.S. Merger that Europe Stopped – A Story of the Politics
of Convergence’ (2007)
accessed 2 August 2023.
235 ibid.
An Analysis of UK and EU Competition Law Post-Brexit 123
merger control. e intensity in an EU-UK context, however, is likely to be greater
given the close ties, theoretically and geographically, between the two jurisdictions.
However, the obstacles to co-operation are not insurmountable.
Key lessons from GE/Honeywell include the inadequacies of the EU-US bilateral
agreement at the time which lessened the authorities ability ‘to mitigate divergent
views’.236 In particular, an ‘inherent weakness’ of the EU-US bilateral agreement
at the time of GE/Honeywell was that it did ‘not oblige the parties to make
enforcement decisions based on comity or to comply with cooperation request.’237
us, informed by the lessons from GE/Honeywell, action towards the negotiation
of an EU-UK Competition Cooperation Agreement, in particular, adoption of a
‘Switzerland plus’ co-operation agreement incorporating positive and negative
comity provisions is the most favourable basis for future co-operation in order to
overcome the legal challenges that informal cooperation presents.238
If, however, such an agreement is ‘too ambitious’239 or is not forthcoming, this
author draws upon the antitrust experience of the ICN, in the area of merger
control, in support of the proposition that the ICN framework with respect to
mergers may assist to ll the post Brexit lacunae in the area of merg er control since
‘it is a great virtue of the International Competition Network that it facilitates
cross-fertilization and nurtures understanding.’240 It is suggested that ‘in no other
eld of national law with large international ramications is communication so
intense and so fruitful.’241
While a co-operation agreement is unlikely to eradicate the possibility of
divergent outcomes, ‘cooperation arrangements can, however, clearly work to
limit divergence to genuine dierences rather than those arising simply from
poor timing.’242 erefore, one of the most important proposals includes the
adoption of a mandatory notication requirement to the CMA. is proposal is
complimented by the suggestion that the CMA align its investigation timeframe
with the Commission in an eort to ‘reduce the risk of delay or divergence’243 that
the CMA’s ex-post review reg ime may present.244
e possibility of divergence in merger control regimes between the EU and the
UK is further explored by consideration of the potential for more frequent public
interest interventions in mergers by the UK. e narrow grounds for intervention
236 Ricky D River, ‘General Electric/Honeywell Merger: European Commission Antitrust Strikes a
Sour Note’ (2003) 9(525) ILSA Journal of International and Comparative Law 531.
237 ibid 533.
238 Pollakowsky and Pulliam (n 193) 18.
239 Lucey (n 207) 161.
240 Fox (n 234).
241 ibid.
242 Scanlan (n 67) 4.
243 Scanlan (n 67) 2.
244 ibid.
124
on the basis of the public interest under the EUMR is contrasted with the power
conferred on the Secretary of State by section 58(3) of the 2002 Act to intervene
on public interest grounds. In this regard, it is submitted that in order to mitigate
the challenges posed by increased intervention in mergers on public interest
grounds, thereby creating a further divergence in merger control regimes, the UK
should ‘consider adopting checks and balances into their procedures to ensure
that government intervention is exercised under exceptional circumstances and
in a transparent manner’245 since ‘a further expansion of public interest, due to
the consideration of socio-economic factors, would undermine the benets that
convergence bring to the merger review system.’246
For the time-being, it appears that while the CMA and the Commission may
continue to co-operate on an ad-hoc basis in relation to investigations, assessments
and remedies, the authorities are under no obligation to do so. e diculties
presented by unilateral assessments and remedy design are evident from the
CC’s retrospective analysis of the behavioural remedies implemented through
undertakings in Dräger Medical AG / Air-Shields Hillenbrand Industries Inc, ‘both
of whom manufactured products only outside the UK and the transported them
into the UK’.247 Two practical restraints emerged: ‘one on its ability to enforce a
structural remedy overseas and another reecting a concern that the merged entity
could simply withdraw from the UK.’248 In the absence of genuine co-operative
eorts and the consequent increasing likelihood of the CMA and the EU reaching
dierent conclusions, such practical restraints remain ever prevalent.
Ultimately, it is suggested that the UK will likely be gradually forced to relax its
‘regulatory autonomy.’249 As noted by Leino and Leppävirta, ‘even if the UK has an
unfettered right to leave the Union, EU law will continue to aect the possibilities
of its European neighbours engaging in co-operation with it.’250 us, what is likely
required ‘is a cross-cutting new deal within the terms of the TCA , that allows
trade-os between dierent goals, and an honest recognition that “sovereignty”
is a chimera where trade-os have to be managed.’251 Sooner rather than later ‘the
UK needs to gure out properly where regulatory freedom is actually valuable,
and where it is not.’252 Ultimately, as this article suggests, ‘there are very few areas
245 OECD (n 133) 4.
246 Joe Tomlinson and Liza Lovdahl Gormsen, ‘Stumbling Towards the UK’s New Administrative
Settlement: A Study of Competition Law Enforcement Aer Brexit’ (2018) 12(20) e
Cambridge Yearbook of European Legal Studies 233, 247.
247 Capobianco, Davies and Ennis (n 70) 38.
248 ibid.
249 ibid.
250 Sirkku, Leino-Sandberg andHelena Leppävirta (n 200).
251 ibid 11.
252 Sevilay Kahraman, ‘Brexit and the EU-UK Trade and Cooperation Agreement in comparison:
EU principles and practices of governing the neighbourhood’ (2022) Journal of Contemporary
European Studies, 12.
An Analysis of UK and EU Competition Law Post-Brexit 125
where … divergence will really bring benets…’253 as ‘if you wish to play with the EU
States, you need to comply with EU rules, irrespective of whether or not you are an
EU Member yourself.’254
253 Peter Holmes, ‘Reviewing the TCA: How to Salvage Something from the Wreckage of Brexit’
(Progressive Economy Forum, May 2022) 30
content/uploads/2022/05/EMBARGOED-Brexit-report-web.pdf> accessed 2 August 2023.
254 Sirkku, Leino-Sandberg andHelena Leppävirta (n 200).
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