Competition Newsletter February 2020

Author:Ms Emmanuelle van den Broucke, Christopher Graf and Alexia Delaunay

Impact of Brexit on Competition matters

On 31 January 2020, the United Kingdom ("UK") ceased to be a Member State of the European Union. However, under the UK-EU agreement on the UK's withdrawal from the EU (the “Withdrawal Agreement”), virtually all EU law remains "applicable to and in the UK" until 31 December 2020 (the “implementation period”). Although the Withdrawal Agreement allows for this period to be extended for a further one or two years, UK law currently prohibits the Government from extending the implementation period.

At the end of this period, the UK and EU may have reached agreement on all the aspects of their future relations or none of them. However, it is also quite likely that they will have reached agreement on some, but not on others, so that the question "deal or no deal?" can only be answered for each individual topic or sector.

Antitrust enforcement: Until the end of the implementation period, there will be no major changes and EU antitrust law will continue to apply (and to be enforceable) before the European Commission (“EC”) and the European Court of Justice. Once the implementation period is over, EC infringement decisions published after 31 December 2020 will no longer be a valid basis for follow-on damages actions in the UK courts. The EC will no longer be able to carry out dawn raids in the UK and will be limited to making written requests for information to UK-based companies.

For companies involved in an ongoing competition investigation at the end of the implementation period, parallel proceedings (which could be criminal in the UK and civil in the EU) are a possibility. Investigations with an EU element, carried out by the Competition & Markets Authority (“CMA”) under EU law and which are ongoing at the end of the implementation period, will continue under UK law only as the CMA can no longer enforce EU competition law.

Finally, it is currently the position that once the implementation period is over, the current EU block exemptions (of which there are seven, including exemptions for vertical restrictions) will be retained in the UK as parallel exemptions to the UK competition prohibitions but these may be amended in the future. We can also anticipate greater territorial protections in the UK.

Merger control: During the implementation period, the EC will continue to be a one-stop-shop and at the end of the implementation period, cases in mid-review will, if notified to the EC, continue to be investigated...

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