February 4, 2019

The draft guidance document explains how EU Exit will affect the CMA’s powers and processes for antitrust and cartel enforcement, merger control and consumer law enforcement after Exit Day. The guidance also explains the treatment of “live” cases in a no deal scenario, which are those cases that are being reviewed by the European Commission or the CMA on Exit day.

The draft guidance is intended for businesses and their legal advisers but may also be of interest to other enforcers.

The guidance applies to the CMA’s ongoing and future:

• merger cases under the Enterprise Act 2002;
• antitrust cases, including cartels, under the Competition Act 1998, i.e. relating to the competition law prohibitions on anti-competitive agreements and on abuse of a dominant position; and
• enforcement of consumer protection legislation, in particular under Part 8 of the Enterprise Act 2002.

Some of the CMA’s functions that are less materially affected by EU Exit are not specifically covered by the guidance under consultation, including regulatory appeals, market studies, market investigations and the criminal cartel offence. The CMA guidance on these functions may, however, refer to concepts under EU law and such references should be read with the relevant changes in UK law resulting from EU Exit in mind. The guidance also does not cover the exercise of the CMA’s State aid powers.

The CMA says that the draft guidance offers an explanation of the legal changes expected to result from EU Exit, but it is not a definitive statement of, or a substitute for, the law itself. The CMA may issue further guidance in due course to clarify or amend elements of this guidance and explain any future cooperation agreed with the European Commission after EU Exit. The CMA expects to re-issue guidance to remove references to EU legislation and processes over time.

The consultation seeks respondents’ views on the content of the draft guidance and, in particular, the questions raised in Section 3 of this document. The CMA says that it wants to ensure that the guidance is clear, comprehensive and useful for its intended readers.

The CMA is seeking the views of interested parties, including but not limited to parties to ongoing procedures before the European Commission, and their legal or other advisors who have been involved in antitrust, cartels, merger notification processes, and businesses, legal or other advisors who may be affected by the exercise of the CMA’s functions, including in relation to the CMA’s consumer enforcement powers.

The consultation closes on 25 February 2019. To access the guidance and consultation documentation, click here.