The Competition and Markets Authority (CMA) became fully operational on 1st April 2014. It merged the competition functions of the Competition Commission with those of The Office of Fair Trading (OFT).
The Structure of the CMA
The authority has a wider remit than its two predecessors in that it aims to ensure that markets operate not only for the benefit of consumers but also for the benefit of businesses and the wider economy.
Commentators believe that the creation of the CMA has invigorated competition enforcement and made procedures more efficient.
The CMA is made up of a Board of Directors, a Panel, a Chief Executive and a body of staff responsible for enforcement, markets and mergers and corporate services.
The Board is responsible for the strategy and performance of the CMA together with the oversight of staff, the drawing up of rules of procedure and the issuing of guidance. It also has responsibility for phase 1 decisions in merger, markets and antitrust cases.
The Panel comprising experts appointed by the Secretary of State, handles the Phase 2 process which includes merger and market investigations, investigations under the competition law prohibitions on anti-competitive agreements and the abuse of dominant positions.
The Strategic Goals of the CMA
• Identifying markets where competition is not working well and tackling constraints on competition using its competition and consumer enforcement tools.
• Enforcing antitrust rules robustly and fairly.
• Challenging Government where it is creating barriers to competition.
Working in the Regulated Sector
The CMA may intervene and take over a case from a sectional regulator for example Ofcom, Ofgem or Ofwat but not Monitor which regulates health care services. Intervention can occur where the CMA believes that doing so would further the promotion of competition.
Market Studies and Investigations
The CMA is responsible for all aspects of market review which were previously the responsibility of the OFT and the Competition Commission. However the CMA is subject to shorter statutory time limits.
The Authority has six months from the publication of a market study notice to announce its proposed decision on whether or not to make a reference and to begin a consultation.
Within twelve months it is obliged to publish its market study report setting out its findings and the action it proposes to take.
Within 18 months the market investigation must be completed, although this can be extended by up to 6 months where special circumstances exist.
The CMA has also been given extended investigative powers. It can require persons to give evidence and provide documents where there are reasonable grounds for suspecting that a feature of a particular market is preventing, restricting or distorting competition. Failure to comply can result in a penalty of up to £30000.
Powers of Enforcement
The CMA has new powers to require an individual connected with a business involved in an investigation to answer questions on any matter relevant to its investigation.
Individuals may include current or former directors, partners, any person exercising management functions, employees, consultants, volunteers, contact staff or professional advisers.
The fine for non compliance is the same as above.
Interim measures can also be applied to prevent serious harm being caused by anti-competitive conduct whilst an investigation is being undertaken. This could occur where a business is being dealt significant damage to its commercial position because its ability to compete effectively is being damaged. This may occur through restrictions on the ability to obtain supplies, to gain access to customers, or by inflicting damage to the goodwill or reputation of the business.
The voluntary notification system under the merger control regime has been strengthened.
The CMA has powers to suspend all further steps to integration between merging businesses where the merger has not yet happened. It can also reverse integration steps that have already taken place where there is an acute risk that the integration may prejudice the CMA’s investigation and /or impede it taking appropriate remedial action.
Where the CMA is investigating a merger the parties have five working days after receiving the CMAs reasoned decision on whether the merger has or is likely to result in a substantial lessening of competition, in which to offer suitable undertakings. The CMA has a further five working days to decide whether those undertakings in principal address the problem. The parties then have a further 50 days to formally accept the proposed undertakings.
The Cartel Criminal Offence
The CMA is now the main enforcement agency for the cartel offence. It can bring prosecutions under the criminal cartel offence, along with the Serious Fraud Office.
A cartel offence is committed when parties reach an agreement over price fixing, bid rigging or limiting output. The parties need to be in the same industry and the agreement must be reciprocal. There has to be an agreement, not just an exchange of information.
A cartel offence can be defended if it can be shown that, first there was no intention to conceal the nature of the agreement from customers, second that at the time of making the agreement, there was no intention of concealing the nature of the agreement from the CMA, and third, at the time of making the agreement reasonable steps were taken to disclose the nature of the agreement to professional legal advisers in order to obtain advice prior to implementation.