This book describes the comprehensive overhaul of UK competition law that started in 2013 and that was substantially completed on 1 October 2015. Those changes have radically changed the nature of administrative, civil, and criminal enforcement within the United Kingdom.
Since the start of the twenty-first century, UK competition law and policy has been in a constant state of evolution. Before then, the United Kingdom had a distinctive but increasingly outmoded regime that did not sit happily with the systematic regime established within the European Union: there was no credible system for the control of unilateral market power; the cartels regime was highly bureaucratic; and the process for the control of markets and mergers was heavily based on the concept of the public interest and subject to extensive political interference. There was little risk of either civil or criminal liability for breaches of competition law, and the investigatory and enforcement powers of the UK authorities were narrowly confined.
By 2005, the position had altered dramatically. The first major change was the entry into force of the Competition Act 1998 on 1 March 2000, which created domestic equivalents to the EU prohibitions of anti-competitive collusion and abuse of dominance, as now reflected in arts. 101 and 102 of the Treaty on the Functioning of the European Union, and for the first time endowed the UK’s competition authorities with real powers of investigation and enforcement, including the power to impose very heavy fines on infringing firms. The second wave of radical change came just three years later, with the entry into force of the Enterprise Act 2002 in June 2003. This created the Competition Appeal Tribunal, made certain cartel conduct a criminal offence, introduced measures to stimulate civil actions for damages in competition cases, and modernized and consolidated the UK mergers and markets regimes, largely removing them from political control. Less than a year later, on 1 May 2004, the EU modernization programme further extended the powers of the UK courts and competition authorities to include the direct enforcement of all aspects of the EU prohibitions.
This book starts from the position established by these developments and describes yet further changes made on 1 April 2014 and 1 October 2015, arising out of the Enterprise and Regulatory Reform Act 2013 (ERRA) and the Consumer Rights Act 2015 (CRA). The ERRA has made fundamental institutional changes to the (p. viii) UK regime, abolishing the Office of Fair Trading and Competition Commission and replacing them with a single body, the Competition and Markets Authority. The ERRA also abolished the ‘dishonesty’ mens rea element of the criminal cartel offence and extended the enforcement powers of the UK authorities. The ERRA therefore made very significant changes to administrative and criminal enforcement; and this has now been complemented by no less dramatic changes to the regime for private enforcement: the CRA greatly increases the jurisdiction of the Competition Appeal Tribunal, including a novel class-action system with no direct precedent either in the United Kingdom or elsewhere.
The impact of such a process of continuous revolution in a complicated area of law and policy is inevitably uncertain. Not all of the changes made between 2000 and 2005 proved successful: in particular, neither the civil nor the criminal regimes worked out as intended. It is no less uncertain how the new changes will work out and whether there may be unintended consequences from changing so many parts of the system at the same time and so shortly after earlier changes.
The purposes of this book are to describe the new regime and to consider the policy and practitioner issues that it raises across the field of competition law. By combining the very broad experience of the Eversheds competition team, operating throughout the United Kingdom across the full range of competition work, with the multi-disciplinary expertise of barristers at Matrix Chambers, whose members are active not only in public and private competition law but also in relation to criminal prosecution of the cartel offence, we have sought to provide a comprehensive overview of a substantially reformed landscape and to look at least tentatively into the crystal ball to discuss how things may work out in future.
We, the general editors, wish to thank a number of people for their assistance with this project. First of all, we thank our fellow contributors at Eversheds and Matrix for their hard work in drafting the chapters for which they were responsible. We are most grateful to Mr Justice Parker for agreeing to provide a foreword to the book, and to Clare Montgomery QC for reviewing and commenting on Chapter 7, describing the changes to the cartel offence. We are also particularly appreciative of the long hours contributed by a number of other Eversheds associate solicitors, namely Aysha Fernandes, Elizabeth Coleman, Charlie Markillie, Claire Morgan, Vineet Budhiraja, Ashley Sheppard, Ludmilla Le Grand Hamblin, and Monika Zejden-Erdmann. In particular, Elizabeth, Ludmilla, and Monika have provided tremendous support to the editors, including research and preparatory work for several chapters, and doing all they could to ensure that the contributors (and editors) delivered to time. We give our thanks to all of them.
Finally, we are most grateful to the OUP staff for their assistance in seeing this book through to fruition, in particular Gemma Parsons for guiding us expertly through the process and for her patience where, on occasion, the timetable has slipped.(p. ix)
The law is intended to reflect the statutory position from 1 October 2015, although the editorial process has meant that it has not been possible to take full account of case law and other developments after 1 August 2015.
Rhodri Thompson QC