Competition law

Competition law

Our competition law solicitors offer expert advice exactly when you need it. If you are facing an investigation for competition law infringements you’ll need high quality, commercially-minded, strategic advice. To speak to a competition law expert call our Leeds, Sheffield or York office for an initial consultation.

Competition law lawyers

Our team of competition law solicitors will ensure you are in the best position to do just that.

Navigating the minefield of national, international and European Union (EU) competition law can be difficult for businesses of all sizes. It is important you obtain legal advice to ensure your company is compliant and is in a position to make the most of new opportunities.

We appreciate that incorporating this level of specialist knowledge into your organisation can seem a pretty big undertaking, especially when you’re busy running a business. This is why we are here to help ease the burden.

Speak to our regulatory and corporate defence solicitors today for thorough, expert advice on all aspects of competition law. We have three offices in Sheffield, Leeds and York, which can be contacted by calling 0333 323 5292, or by leaving your details in the online enquiry form.

The team

Our competition law solicitors offer expert advice exactly when you need it. We provide tailored education and training programmes to ensure you have a full understanding of what is required of you and your business.

We have helped many businesses – large and small – with risk management and compliance programmes that are appropriate and continually evolve as a business develops. This ensures that your interests are always protected and your team is in a position to make decisions that drive your business forward.

About competition law

In many countries and regions around the world, complex rules and regulations outlaw certain business practices, such as cartels, price fixing, and sharing territories, markets and customers. UK businesses are subject to domestic law in the form of the Competition Act 1998 and the Enterprise Act 2002, as well as European law in the form of Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Whilst Brexit may affect this area of law as many others, European law will remain relevant post-Brexit as activity by UK businesses will often have an effect within the EU.

These laws are stringently applied by the Competition and Markets Authority (CMA), National Competition Authorities (NCAs), including the European Competition Network, and the European Commission. These regulations impose conditions on some business mergers and, in some circumstances, will outlaw them altogether.

Competition law can be relevant to formal and informal, binding and non-binding agreements, including verbal agreements. It also applies to cooperation or concerted practices, as well as decisions and recommendations of trade associations.

It is no longer possible to notify the CMA or European Commission of an agreement or practice to obtain guidance or a decision. The emphasis is now on self-assessment. Nevertheless, a complaint may still be made to the CMA, which will, eventually, give its view on whether the agreement complained of infringes the law.

Types of practice that trigger a competition law Investigation in the UK

In the Competition Act 1998, the ‘Chapter I Prohibition’ outlaws certain agreements or practices that have an appreciable effect on trade in the relevant market within the UK.

The types of agreement and practice that are outlawed as restricting competition include agreeing to:

  • Fix prices or other trading conditions
  • Limit or control production, markets, technical development or investment
  • Share markets or supply sources;
  • Make contracts subject to unrelated conditions; and
  • Apply different trading conditions to equivalent transactions, thereby placing some parties at a competitive disadvantage
  • Price fixing and market sharing are the worst types of agreements and are usually outlawed regardless of market share, although there are some exemptions. The other types are generally allowed as long as the parties’ market shares are below certain thresholds.

    Exemptions under UK Law for infringing agreements

    There is a de minimis rule that exempts all agreements – except for clear anti-competitive agreements, such as price fixing agreements – between undertakings with a relatively low combined applicable turnover and/or low market shares. Regardless of this, the CMA or the European Commission may investigate such an agreement and make a decision to withdraw this ‘small agreement’ immunity.

    The de minimis exemption does not apply to a cartel that is illegal regardless of how small the parties’ market share is.

    Other exemptions include parallel and block exemptions, which means agreements falling within an EU block exemption are also protected from challenge under UK competition law. It should also be noted that if the agreement or practice is a merger based mainly in a member state, it will be regulated either by EU Merger Regulation or National Merger Law and Regulations.

    Types of practice that trigger a competition law investigation under EU law

    Agreements and concerted practices that may have an appreciable effect on trade between EU member states are made illegal by Article 101 of the TFEU. The word ‘may’ catches agreements that only have a potential effect on trade between member states. The agreement may be between, for example, two undertakings in the UK and still have an effect on trade between EU member states.

    The types of agreement and practice that are outlawed are similar to those prohibited by UK legislation.

    Exemptions under EU law for infringing agreements

    There is a de minimis provision for agreements and practices – not including price fixing agreements – of small undertakings. It is contained in the Commission Notice on Agreements of Minor Importance (OJ C368, 22.12.01, p.13).

    There are many other ways an agreement can be exempt under EU competition law. For example, there is a system of EU block exemptions, such as for vertical agreements and technology agreements.

    It is also possible for an agreement to be exempt under the general exemption in Article 101 (3). This exemption applies to agreements that:

    • Contribute to improving production or distribution or to promoting technical or economic progress
    • Allow consumers a fair share of the resulting benefits
    • Are indispensable to achieving those objectives
    • Do not eliminate competition in a substantial part of the products concerned
    • There is also a block exemption on specialisation agreements and another on research and development agreements. Most block agreements have market share thresholds. Typically, these are below 30% market share of the relevant market.

      Powers of UK and EU authorities

      The CMA and European Commission investigate infringements of UK and EU law. The European Commission investigates the most serious infringements of EU competition law. The Commission’s powers of investigation are slightly wider than the CMA’s, as it is able to search private homes if it suspects that a company’s documents are stored there.

      The two authorities’ powers are, however, broadly the same and can be briefly summarised as the power to:

      • Ask businesses in a market to provide information in writing
      • Request to enter premises without a warrant
      • Enter premises with a warrant
      • Request to see and take copies of any document that they consider related to any matter relevant to the investigation
      • Require any person or premises to say to the best of his knowledge where any such document may be found and to provide an explanation of it
      • In respect of criminal cartel activity, the CMA’s powers are much wider. The CMA may gather evidence of cartel activity at any time by informal methods, including enquiries by correspondence. Once the CMA has reasonable grounds for suspecting that a criminal cartel offence has been committed, it may conduct a formal investigation under the Enterprise Act 2002.

        In a formal investigation, the CMA has the power to tap telephones, use hidden cameras and use informants in addition to the power to require a person to answer questions or provide documents. To find out more, read our guide to cartel pricing activity.

        Both authorities have the power to regulate mergers and acquisitions, but their powers differ depending on the type and size of such deals. The European Commission investigates and clears/refuses mergers with a European dimension. The CMA, under the Enterprise Act 2002, regulates mergers and acquisitions of the requisite size or nature in the UK. If the CMA investigates mergers initially, the case may then be referred to the European Commission.

        Contact our expert competition law solicitors

        We have experienced regulatory solicitors ready to answer your enquiries about any regulatory law issues via email or telephone.

        Lupton Fawcett are a leading personal and commercial law firm in Yorkshire with well-established offices of highly experienced solicitors in Sheffield, Leeds and York.

        We provide a personalised service, with sector specialists and extensive resources to ensure we are giving you the best solutions to your problems.

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