THE COMPETITION & MARKETS AUTHORITY AND THE NEW CRIMINAL CARTEL OFFENCE – ALL CHANGE HERE?

The next two years will see perhaps the biggest transition in the approach of the UK to matters of economic regulation and white-collar crime. We have, in previous articles, looked at increased cooperation between regulators and the establishment of a National Economic Crime Command. We have also discussed the introduction of Deferred Prosecution Agreements as a tool for the Serious Fraud Office. The break up of the Financial Services Authority (FSA) is already underway. In a reversal of the direction of travel for the FSA, the Office of Fair Trading (OFT) and the Competition Commission (CC) will be combined to form a Competition & Markets Authority (CMA). Not content on stopping there, the government has also introduced plans to radically change the manner in which the state criminalises cartel arrangements.

The CMA

The changes to the competition regime are introduced by the Enterprise and Regulatory Reform Bill 2013. The CMA is poised to become the sole regulatory and enforcement body for competition matters. It will combine the competition functions of the CC and the OFT. The OFT’s 2013 action plan states that the creation of the CMA will make better use of public resources, enhance overall consistency and predictability for business and will present a combined voice both nationally and internationally on matters of competition.

In a speech delivered on 13 March 2013 the current CEO of the OFT identified the three main strands of competition intervention undertaken by the OFT: (i) direct enforcement action taken under the Competition Act 1998 or Enterprise Act 2002 (in respect of anti-competitive arrangements or abusive conduct by companies or serious cartel behaviour by individuals); (ii) the provision of a ‘first phase’ review of anticipated and completed mergers (the second phase currently being the preserve of the CC); and (iii) ensuring the proper functioning of markets, through market studies and related work. 

Apr-Jun 2013 issue

Kirkland & Ellis International LLP