United Kingdom: Digital markets, pharmaceutical and construction sectors in the spotlight as CMA awaits new investigative and enforcement powers 

What kinds of infringement has the antitrust authority been focusing on recently? Have any industry sectors been under particular scrutiny?

The Competition and Markets Authority (CMA), the United Kingdom’s primary competition authority, has continued to pursue its interests in the pharmaceutical sector and in the construction sector over the past year. For example, the CMA fined four pharmaceutical companies and a private equity company for agreeing to restrict the supply of anti-nausea tablets.

In relation to construction, the CMA fined 10 suppliers a total of nearly £60 million for colluding on prices through cartel agreements when submitting bids for competitive tenders for contracts. It also fined a group of construction companies for price-fixing and regularly exchanging competitively sensitive information in respect of precast drainage products. In February 2024, the CMA announced an investigation into the potential exchange of competitively sensitive information by eight housebuilders.

Beyond the pharmaceutical and construction sectors, the CMA has continued to focus its attention on the digital sector. In 2022, the CMA opened an investigation into suspected breaches of competition law by Google and Meta, with the CMA concerned there had been an anticompetitive agreement between Google and Meta in relation to AdTech. However, in March 2023, the CMA closed the investigation citing administrative priorities having found no competition concerns.

Anti-competitive conduct in labour markets is also a focus for the CMA following its February 2023 publication of guidance for employers on no-poaching agreements, wage-fixing agreements and information sharing about the terms and conditions of employees’ contracts. In the past year, the CMA launched two investigations with a labour market focus, both of which concerned TV producers and broadcasters for conduct relating to employment of staff and the purchase of services from freelance providers.

However, the CMA is not the UK’s only competition authority – sectoral regulators have concurrent enforcement powers – thereby increasing the UK’s capacity to enforce against anticompetitive conduct.

For example, the Financial Conduct Authority (FCA) has continued to issue fines in connection to breaches of competition law following its first competition law decision in 2019, and in December 2023 fined three money transfer firms for breaching competition law after they were found to have engaged in price fixing.

Similarly, the UK’s Payment Systems Regulator (PSR) made its first antitrust settlement in January 2022, fining four prepaid card issuers more than £33 million after they admitted to colluding and allocating customers in the UK prepaid welfare card sector for six years.

The energy regulator (Ofgem) and communications regulator (Ofcom) have also investigated market-sharing and information exchange cases in recent years, with Ofgem imposing total fines of £870,000 on suppliers of energy software and consultancy services in May 2019.

In February 2023, Ofcom published its final decision concerning the exchange of competitively sensitive information, including on future pricing, by certain providers of electronic communications equipment. In light of the penalties guidance and circumstances of the case, Ofcom concluded that the financial penalty of £1,500,000 was appropriate, while one of the parties continues to benefit from immunity granted under the CMA’s leniency policy. As the CMA’s workload increases, the rate at which sectoral regulators will investigate suspected infringements looks set to increase.

In its 2024-2025 Annual Plan, the CMA has pledged to focus on certain key outcomes. These are (i) acting to ensure that people can be confident that they are getting great choices and fair deals; (ii) ensuring that competitive, fair-dealing businesses can innovate and thrive; and (iii) ensuring that the whole UK economy can grow productively and sustainably. Under each of these outcomes, the CMA has a number of stated aims for 2024-2025. These include broadening its work to protect consumers from harmful practices on online platforms and implementing its Green Agreements Guidance.

What do recent investigations in your jurisdiction teach us? (What usually triggers an investigation? Have there been any notable developments regarding dawn raids? How do the regulator and parties in an investigation interact?)

Investigations by the CMA may be triggered by leniency applications, third-party complaints or through the CMA’s own market monitoring function. They may also arise out of merger reviews (as happened in the Laundry Services investigation, which resulted in the imposition of £1.71 million in fines at the end of 2017), out of market studies (as happened in the Housebuilding investigation that was opened in February 2024) or as a result of information received during previous investigations.

CMA investigations can also begin on the back of information received from individual whistle-blowers, and the CMA actively encourages business representatives who suspect that their business has been involved in cartel activity to blow the whistle on the cartel.

The CMA continues to promote its ‘Cheating or Competing’ campaign, which was launched in February 2020. The campaign details the relevant procedure for whistle-blowers and potential competition law infringements with the aim of promoting awareness among businesses of illegal cartel behaviour.

The CMA also offers financial rewards of up to £100,000 (in exceptional circumstances) for information about cartel activity. Whatever the trigger, the CMA can only open a formal investigation once it has reasonable grounds to suspect that an infringement has actually taken place. After opening a formal investigation, the CMA can use its statutory powers to require businesses under investigation or third parties (such as customers, suppliers and competitors) to answer information requests and can impose penalties for failure to comply with such requests. It can also conduct dawn raids to seize information, although the procedure for, and scope of, dawn raids will depend on whether they are conducted with or without a court warrant. Dawn raids have returned following the covid-19 pandemic when government restrictions had put them on hold. For example, in March 2023 the European Commission and the CMA carried out a parallel raid into the fragrance sector over concerns over possible collusion in the supply of fragrance used in the manufacture of consumer products and ingredients.

The CMA generally provides case updates to businesses under investigation either by telephone or in writing. The CMA also offers opportunities to interact with the case team at ‘state of play’ meetings, during which the businesses under investigation are informed about the next stages of the investigation. If the CMA reaches a provisional view that the conduct under investigation amounts to an infringement of competition law, it will issue a statement of objections. At this time, the CMA will also give the businesses under investigation the opportunity to inspect its file using data rooms and confidentiality rings where appropriate.

Businesses under investigation are then given the opportunity to respond to the statement of objections orally and in writing. The CMA will then issue its decision. Businesses under investigation may be able to cut this process short by offering commitments in relation to their future conduct that address the CMA’s concerns or by entering into a settlement agreement.

Nonetheless, the CMA’s recent investigatory practice shows that it is prepared to balance its competition enforcement objectives with other public policy considerations (as demonstrated by its response to the covid-19 pandemic (see question 10)).

For example, in September 2021 following a surge in fuel prices, the CMA temporarily exempted fuel suppliers from certain competition rules, allowing them to share information to ensure effective supply to petrol stations with the least fuel. A month later, the CMA took similar measures to help combat a shortage in the supply of carbon dioxide, allowing suppliers to work together to ensure supply to key sectors.

More recently, in its Green Agreements Guidance, the CMA has indicated that it is willing to take a more permissive approach to certain types of sustainability agreements which combat or mitigate climate change by taking account of benefits accruing beyond consumers of the products or services concerned when applying the criteria for exemption from the prohibition on anticompetitive agreements and practices.

How is the leniency system developing, and which factors should clients consider before applying for leniency?

There have, for a while now, been rumours (not limited to the UK) of leniency applications being on the decline, with the CMA commenting in 2015 that it wanted to reduce its reliance on the leniency policy as a method of cartel detection, including through the recruitment of additional staff and investment in intelligence. More recently, in June 2023, the CMA’s senior director for antitrust investigations said that the CMA was considering the reasons behind a drop-off in leniency applications and how the regime could be adapted, which may suggest that the decline in leniency applications has not been abated. Beyond the UK, the head of the European Commission’s cartel unit has also commented on the sharp decline in the number of leniency applications in recent years. The Commission has similarly suggested it is considering ways it can maintain or improve incentives for undertakings to utilise the leniency policy in light of the trend of declining leniency applications.

However, the leniency policy clearly still plays a vital role in the detection of cartels. By way of example, in July 2023 the CMA found JD Sports and Leicester City FC and its parent companies to have infringed competition law by entering into price-fixing agreements. JD Sports reported the illegal conduct and admitted its participation in the alleged conduct using the leniency application procedure. As a result, JD Sports benefited from immunity to any fine under the leniency programme, provided it continued to cooperate and comply with the conditions of the CMA’s leniency policy.

In 2022, the CMA granted a 40 per cent discount to a fine for one of the pharmaceutical companies involved in restricting the supply of anti-nausea tablets as a result of the company being granted leniency for admitting its involvement and for cooperating with the CMA’s investigation.

The decline in leniency applications is generally thought to be, to a large degree, attributable to the introduction of the EU Damages Directive (implemented in the UK by Schedule 8A of the Competition Act 1998 and largely retained following Brexit) and the resulting increased exposure – including for leniency applicants – to private damages claims.

For instance, members of the Foreign Exchange cartel are facing a class-action enforcement case in the Competition Appeal Tribunal (CAT), the UK’s specialist competition tribunal. Similarly, members of the Trucks cartel are facing a class-action enforcement case in the CAT stemming from their participation in a 14-year price-fixing cartel.

Such cases should serve as a reminder to organisations of the long-term dangers of participating in cartels (even where they subsequently apply for leniency), beyond any fine imposed for anticompetitive behaviour.

Where the CMA does receive leniency applications, whether it ultimately pursues the case will depend on various considerations including its own prioritisation principles, which were updated in October 2023. The CMA will consider the impact of the behaviour concerned, its significance to the CMA’s strategy and the likelihood of success, and will generally think twice before committing resources to a new project when it already has worthy cases on its books.

It is also worth noting that, where appropriate, the CMA may send warning letters or advisory letters, instead of opening investigations.

What means exist in your jurisdiction to speed up or streamline the authority’s decision-making (eg, settlement procedure), and what are your experiences in this regard?

Settlement discussions can be initiated either before or after the issue of the statement of objections. Parties must be prepared to admit liability and accept the CMA’s adoption of a streamlined administrative procedure for the remainder of the investigation to benefit from a reduced penalty. The CMA retains discretion in determining which cases it wishes to settle.

However, the CMA’s recent practice suggests that it is more than open to settling cases where appropriate.

For example, in July 2023 the CMA imposed a £880,000 fine on Leicester City Football Club, Kind Power International and V&A Holding for entering an agreement with JD Sports to restrict competition in the sales of Leicester City-branded clothing. This fine included a 20 per cent reduction as a result of the parties settling the case. A further example of settlement can be seen in the demolition and asbestos removal construction case, in which a number of the relevant undertakings were handed reduced fines as settling parties who admitted their involvement in the cartel.

Sectoral regulators are also willing to settle cases where appropriate. For example, in January 2022 the members of the Prepaid Cards cartel (see question 1) settled with the PSR, which applied discounts of 10 to 20 per cent depending on when the settlement was reached.

The streamlined administrative procedure usually involves scaled-back access to file arrangements with no written representations on the statement of objections other than in relation to factual inaccuracies, no oral hearings, no separate draft penalty statement after settlement has been reached and no appointment of a case decision group. Where a settling party has made representations on the statement of objections before settling, the CMA also requires the party to formally withdraw those representations (other than in relation to factual inaccuracies) in its settlement confirmation letter.

In deciding whether to enter into a settlement agreement, businesses must weigh the benefits of early resolution against factors such as the admission of liability and the implications for appeal, including that they might not benefit from a successful appeal against the CMA’s decision by the other businesses being investigated (this issue was considered in the Gallaher/Somerfield tobacco litigation).

In December 2021, prompted by musical equipment maker Roland’s unsuccessful appeal to the CAT after Roland agreed a settlement with the CMA, the CMA updated its settlement guidance. Settling businesses must now accept that the CMA’s decision will remain final (even if challenged by another addressee) and that they will not challenge or appeal the decision to the CAT. The change reflects the CMA’s intention that settlements should be final, where previously settling parties could appeal the CMA’s decision subject to the revocation of the settlement discount if they lost the appeal (as was the case in Roland).

Tell us about the authority’s most important decisions over the year. What made them so significant?

Over the past year the CMA has continued to demonstrate a focus in the construction sector. As noted in question 1, the CMA imposed a nearly £60 million fine on 10 construction firms for illegally colluding to rig bids for the supply of demolition and asbestos removal contracts involving both private and public sector projects. The CMA also secured the disqualification of three directors of firms involved in the conduct. The CMA identified 19 infringements relating to contracts worth over £150 million in total. The CMA also recently launched an investigation concerning suspected anticompetitive conduct relating to the supply of chemical admixtures and additives for use in concrete, cement, mortars and related construction products in the UK. The CMA said it had reason to suspect that the infringements were conducted by both companies and some industry bodies. The investigation not only demonstrates a continued focus on the construction sector, but also the CMA implementing its commitments to deter anticompetitive conduct to ensure that competitive and fair-dealing businesses can innovate and thrive.

Other significant decisions include the CMA’s investigation, which was recently extended in its scope, into suspected infringements by Firmenich International, Givaudan and International Flavours & Fragrances in the fragrance sector. Initially, the investigation had been concerned with anticompetitive agreements involving suppliers of fragrance and fragrance ingredients. However, the CMA has recently announced it will broaden the scope of its investigation, voicing a particular concern over reciprocal arrangements relating to the recruitment of certain staff involved in the supply of fragrances and/or fragrance ingredients. The case demonstrates the shift in the attention of the CMA towards the labour market, and particularly how agreements to fix wages or not to poach staff from rivals might harm competition.

In July 2023, the CMA published its final report on the supply of road fuel in the UK. The CMA had been concerned with the performance of the sector, but decided that there was no evidence to suggest there had been any cartel behaviour taking place across the parts of the road fuel market covered by the study, and there would be no plan to open enforcement proceedings regarding this.

What is the level of judicial review in your jurisdiction? Were there any notable challenges to the authority’s decisions in the courts over the past year?

The CMA makes decisions at first instance by itself, but those decisions may be appealed to the CAT (unless a party has settled with the CMA, in which case the right of appeal is forfeited (see question 4)). The CMA’s antitrust infringement decisions are subject to appeal on the full merits of the case (in contrast to its merger control and market investigation decisions, which can only be appealed on the (narrower) grounds available for judicial review). Following a decision by the CAT, any party to the appeal or a third party with sufficient interest (and permission from the CAT) may bring an appeal to the Court of Appeal on a question of law (but not the merits of the case), or the amount of a penalty.

There have been multiple significant challenges to the CMA’s decisions over the past year. An example includes the CAT’s recent decision to allow an appeal by the parties affected by the CMA’s hydrocortisone decision. The CAT initially upheld the CMA’s decision that the parties had engaged in cartel conduct. However, the CAT subsequently allowed the parties’ appeals because it found that the CMA had not fully put its case to one of the witnesses in cross-examination at trial. The CMA has announced it will appeal the CAT’s hydrocortisone ruling, alleging it to be fundamentally misconceived.

Recently, the Court of Appeal ruled that the CAT had erred in its judgment and held that the CMA has the power to require overseas companies to produce documents and information when investigating suspected anticompetitive conduct. The case concerned a CMA investigation into suspected anticompetitive conduct by vehicle manufacturers, specifically arrangements for recycling end-of-life vehicles. The CMA alleged that important aspects of a cartel were agreed abroad before being implemented in the UK. The parties subject to the CMA’s allegations asserted that the CMA had no power to require them to produce documents and information held outside the jurisdiction. However, the Court of Appeal held that the CMA did have the power to issue extraterritorial information requests under section 26 of the Competition Act 1998. The Court of Appeal rejected the CAT’s interpretation which had held that a section 26 notice was to preclude extraterritorial effect and the notice could only be served on a natural or legal person or entity with a connection to the territory of the UK. Under the CAT’s interpretation, the CMA had no power to require foreign domiciled companies with no UK presence to respond to section 26 notices requesting information held outside the UK. The Court of Appeal in its decision to overturn the CAT’s ruling, emphasised that the CMA would be constrained if it were unable to obtain information from overseas, which would result in a perverse incentive for conspirators to move offshore to organise cartels directed at harming the UK market. The case is significant in confirming the extent of the CMA’s powers to require an undertaking to produce documents and information relating to an alleged cartel.

How is private cartel enforcement developing in your jurisdiction?

The UK is widely regarded (with some competition from Germany and the Netherlands) as the jurisdiction of choice for private cartel enforcement in Europe. One particularly attractive feature for claimants is the UK’s system of disclosure. It is routine for defendants to be required to hand over all documents relevant to the case (whether helpful or unhelpful to them). Although disclosure in competition cases has become part of national law in all EU member states (as a result of the EU Damages Directive), the procedures surrounding it remain underdeveloped in all but a few of those jurisdictions. The UK, therefore, seems likely to remain a leading forum for these cases.

The UK has also seen a rise in competition class actions since the Supreme Court affirmed a significantly lower threshold for bringing such claims in the Merricks case in April 2019. In Merricks, the Court of Appeal overturned a decision by the CAT that prohibited the bringing of a collective action by Merricks against Mastercard, following a European Commission decision in 2007 that its interchange fees had been set illegally high. Overturning the CAT’s finding that it would be difficult to allocate the loss to each customer affected, the Court of Appeal held – and the Supreme Court largely upheld – that the CAT should have asked itself whether a claim is suitable to be brought in collective proceedings rather than individual proceedings and suitable for an award of aggregate rather than individual damages. The Supreme Court also emphasised that the courts should not deprive claimants of a trial merely because of challenges relating to the quantification of harm.

In June 2022, the CAT issued a collective proceedings order and allowed the Road Haulage Association (RHA) to proceed as class representative against members of the Trucks cartel. This marked the first time the CAT has allowed an application for collective proceedings on an opt-in basis, meaning the RHA will be able to invite any qualifying individual or entity to join the claim. In July 2023, the Court of Appeal delivered its judgement in respect to competing applications for a collective proceedings order. The appeal followed the CAT’s refusal to grant an opt-out collective proceedings order to class representatives in claims for follow-on damages arising from the European Commission’s Foreign Exchange cartel decision. The Court of Appeal partially allowed the appeal relating to the CAT’s judgment and held the collective proceedings order should continue on an opt-out rather than opt-in basis.

The legislation implementing the EU Damages Directive in the UK came into force in March 2017 (and remains in force after Brexit). This legislation makes it easier to bring a claim by introducing a rebuttable presumption that cartels cause harm. The legislation, however, restricts claimants’ access to materials that may be helpful for their case, such as leniency statements (which are not disclosable), settlement submissions (which are disclosable only if withdrawn) and information or material on a competition authority’s file (which is disclosable only if the court or tribunal making the disclosure order is satisfied that no-one else is reasonably able to provide the documents or information).

What developments do you see in antitrust compliance?

There continues to be an ever-increasing focus on digital markets, where the emergence of tech giants and new technologies have presented regulators with fresh challenges. From the threat of online selling platforms to the brand image of luxury goods to the use of sophisticated pricing algorithms, as the way we do business changes, so do the perceived threats to competition.

The CMA has been steadily expanding its Digital Markets Unit in preparation for the Digital Markets Competition and Consumers Bill (the Bill) becoming law, which is expected to happen later in 2024. The Bill gives the CMA greater investigatory and enforcement powers in relation to Chapter I infringements. For example, the Bill will enable the CMA to impose fines of up to 1 per cent of a business’ annual turnover for obstructive behaviour during investigations, such as failing to comply with information requests or falsifying evidence. The Bill will also introduce the ability for the CMA to take copies of, or seize, evidence when entering premises under a warrant. Another significant power under the Bill will see the CMA able to fine firms up to 10 per cent of global turnover for breaching consumer laws, as well as make senior managers responsible for compliance with information requests. The Bill also gives the CMA power to designate large digital platforms with “strategic market status” (SMS) and thereafter to impose conduct requirements upon undertakings with SMS if the CMA deems it proportionate for the purpose of achieving one or more of the following objectives: (i) fair dealing, (ii) open choices and (iii) trust and transparency. The Bill is also envisaged to give the CMA the power to make pro-competitive interventions (PCI) on undertakings with SMS where, after a PCI investigation, the CMA considers it would be proportionate to make the PCI to remedy, mitigate or prevent adverse effect on competition.

Accordingly, the CMA Annual Plan states that it is focusing on ensuring that the digital markets are competitive in 2024-2025. In its 2024-2025 report the CMA sets out that it has been preparing for its new powers and responsibilities under the Bill. It anticipates the powers will enable the CMA to conduct efficient and effective enforcement, promoting sustained innovation in the digital sector.

In particular, the CMA notes that it is committed to enabling innovating businesses to access digital markets such as mobile browsers and the distribution of cloud gaming services, e-commerce and digital advertising. In line with this, the CMA has recently resumed its investigation into web browsers on mobile devices and the distribution of cloud gaming services through app stores following the conclusion of litigation which found in favour of the CMA.

Another key aim set out in the CMA’s 2024-2025 Annual Plan is to support the UK economy to grow productively and sustainably, including through acting in existing and emergent markets for sustainable products and services. This includes the CMA’s work in the green heating and insulation sector, which was prompted by a concern that consumers were not being adequately protected from misleading environmental claims. The CMA’s initial findings report in May 2023 identified the business practice of greenwashing, where false or misleading claims are made about a product’s environmental credentials, as a potential concern. This led to an awareness campaign and targeted action in the form of an investigation into Worcester Bosch in relation to potentially misleading green claims.

The aim also includes ensuring that businesses engaged in sustainability initiatives understand their competition compliance obligations, for which the CMA has published an information sheet that (among other things) offers information to businesses on how to avoid serious restrictions of competition and anticompetitive behaviour stemming from sustainability agreements. As exemplified by the investigation into electric car charge point operators, the CMA is also continuing to prioritise cases where practices could impede the transition to a low carbon economy. The CMA has adopted an open-door policy regarding providing advice on the compliance of sustainability agreements with competition law. In December 2023, the CMA published its first-ever informal guidance following a request from the Fairtrade Foundation, and more recently the authority published guidance in respect of the World Wildlife Fund’s work with retailers to reduce greenhouse gas emissions produced by the grocery sector. The WWF’s proposal involved a joint commitment of retailers to set net zero and science-based targets. We may also see a focus on anticompetitive conduct in labour markets following the February 2023 guidance (referred to in question 1).

In addition, we can expect to see the CMA bringing more consumer cases since the Bill will place consumer protection law enforcement on a par with competition law. In a significant change to the current position, the Bill will establish an administrative enforcement model for consumer protection allowing the CMA to bring direct enforcement action and impose significant fines (currently it has to take firms to court to establish infringements).

What changes do you anticipate to cartel enforcement policy or antitrust rules in the coming year? What effect will this have on clients?

As noted, the Bill is expected to become law later in 2024. In addition to its new digital markets regime (see question 8) and reforms to the consumer law enforcement model, the Bill will introduce a tougher enforcement and investigatory regime. The new regime will, among other things, broaden the reach of the UK regime to capture anticompetitive agreements that have substantial effects within the UK; grant the CMA new evidence-gathering powers in investigations with regard to interviews, preserving evidence and obtaining information stored remotely when executing a warrant; allow the CMA to impose tougher penalties on non-cooperative undertakings; and arm the CMA with stronger tools for more effective collaboration with international regulators.

The new proposals aim to bring the CMA’s powers in line with its global equivalents following the UK’s exit from the European Union, and the CMA has already scaled up its portfolio of major investigations over which the European Commission previously had exclusive jurisdiction as it seeks to position itself as a global competition authority. It intends, for example, to increase fining levels in cases involving large multinationals operating in the UK, and accordingly updated its penalty calculation guidance in December 2021 to (among other things) allow the CMA to take into account turnover outside the UK when calculating fines. Businesses now risk undergoing parallel investigations in the UK and the EU, resulting in an increased regulatory burden for businesses and a risk of inconsistent outcomes. Similarly, leniency applicants will need to consider lodging applications with both the UK and EU authorities.

As noted in question 1, in its 2024-2025 Annual Plan, the CMA has pledged to focus its activities on certain key outcomes. The CMA intends to focus on ensuring people can be confident they are getting great choices and fair deals, ensuring fair-dealing businesses can innovate and thrive, as well as ensuring the whole UK economy can grow productively and sustainably. For example, the CMA intends to focus on identifying and acting in areas it can influence the pro-competitive development of markets and have a positive effect on innovation by promoting resilience through competition. As noted in question 5, the CMA is continuing to deploy its formerly neglected director disqualification powers, having updated its guidance on these disqualification powers in February 2019 and secured some noteworthy disqualifications in recent years. It is also likely that class action enforcements will continue to increase in frequency following the Supreme Court’s ruling in Merricks (see question 7).

How has the covid-19 pandemic affected cartel enforcement in your jurisdiction?

In response to the covid-19 pandemic, the government used its legislative powers to temporarily relax elements of competition law in certain sectors. In particular, the government has powers to relax rules for certain agreements that might normally be considered anticompetitive. The government used these powers to introduce measures to permit cooperation in the management of several supply chains (such as provisions for data sharing) in respect of dairy produce, Solent maritime crossings and health services for patients. These have now been revoked.

In March 2020, at the outset of the pandemic in the UK, the CMA issued guidance stating that it would focus on whether coordination could cause harm to consumers or to the wider economy. Where the coordination is necessary, for example to make sure that essential supplies find their way to consumers or that key workers can travel safely to their place of work, it would be highly unlikely that this coordination would cause harm to consumers. This applies even if the coordination would lead to a reduction in the range of products available to consumers, as long as that reduction is necessary to avoid supply shortages of the relevant products in the first place.

In its 2022-2023 Annual Plan, the CMA listed protecting consumers from unfair behaviour by businesses, during and beyond the covid-19 pandemic, as a key theme. In this respect, the CMA monitored anticompetitive and unfair trading practices by businesses closely in relation to covid-19. In 2021, for instance, it secured commitments of over £200 million from holiday firms to refund consumers for package holidays that were cancelled due to the restrictions imposed as a result of the covid-19 pandemic. The CMA also wrote to over 100 package travel firms reminding them of their obligations under consumer law.

The UK has now moved beyond its covid-19 restrictions and we have seen the CMA restarting activities such as dawn raids and site visits, which had generally been suspended while covid-19 restrictions were in place and many businesses were working from home.

The CMA’s 2024-2025 Annual Report suggests the CMA will adopt a change of approach towards covid-19. The CMA has updated its medium-term priorities, which cover a three-year horizon, and has now merged its priority of promoting resilience through competition, which arose from a concern around supply chains, with a focus on sectors that contribute to innovation and productivity.

The Inside Track

What was the most interesting case you worked on recently?

I recently worked on a case involving some pretty novel conduct for which the legal assessment was not clear. Bringing the case to a successful conclusion required a fresh look at traditional concepts and some innovative thinking to apply them to the facts.

If you could change one thing about the area of cartel enforcement in your jurisdiction, what would it be?

Cartel and antitrust enforcement in the UK is based on robust legislation and clear guidelines. Transparency and due process have also improved in the past few years. The CMA attempts to avoid imposing unnecessary burdens on (third) parties in its use of investigative tools (eg, by using draft information requests). However, the authority’s requests for information are still relatively burdensome, and so there is still room for improvement in this area.