Let's talk antitrust - A health check on the UK’s concurrent competition regime

Susanna Rogers: Richard, thank you for joining us today and it’s very kind of you to come and see us. We are going to be talking today about the UK’s concurrent competition regime, so we are just taking a general health check if you will. Have you got any general thoughts about the way in which the regime operates?

Richard Whish QC: It’s a very interesting topic, concurrency, and fairly soon the CMA will be publishing another annual review of concurrency. I actually think that the system is working quite well at the moment as far as I can see, and certainly the report will be interesting because I think what it will demonstrate when it comes out is that concurrency is much more than just counting the number of Competition Act cases going on at any particular time. There is quite a lot of other cooperation going on between the sectoral regulators and the CMA.

Susanna Rogers: Do you want to expand on that a bit because, actually, I think if you do count cases, which of course isn’t necessarily what we should be doing, we have seen perhaps when the CMA came into force in 2014, there was quite a surge of cases with the Enterprise and Regulatory Reform Act; I think we had five or six cases in the first year and we are probably only seeing one or two at the moment. What other competitive outcomes are the regulators promoting?

Richard Whish QC: When the ERRA happened, you’re right that almost immediately they announced that, I think, that there were six cases, and some of those of course have now been concluded, but there are some new ones in the system actually. There’s one, for example, which is rather interesting which is the price parity clauses in home insurance, and that’s quite interesting because the CMA is doing that but it’s in the financial services sector. But because the CMA has done its own market study into digital comparison tools, I think the feeling between FCA and CMA was that it was a more natural one for the CMA to do, so it’s a concurrent case but it’s concurrent being done by the CMA rather than by the FCA.

Susanna Rogers: So that case allocation process is working well?

Richard Whish QC: I think that is what’s working rather well and just as in EU terms you say which is the best positioned authority to do a particular case, I think within the UKCN that’s exactly what is going on there and I think that there is probably much closer cooperation and working practices than was the case historically. There is another case, actually, which is in relation to airport facilities and that might have been done by the CAA, but in fact the CMA is doing that one and I think there may be some jurisdictional issue there that there is a certain amount of conduct within aviation that’s within the perimeter of the CAA’s powers but then you sometimes find something that might be outside the perimeter, so again it’s more natural for the CMA to do that one. You’ll be aware, I’m sure, that the Payment Systems Regulator has got a case at the moment, Ofgem has got one, so there are things going on, but the other point I would like to make is that it’s not only about Competition Act cases; there are also market studies and Ofgem has done one, Ofwat has done one, FCA – several cases. The FCA have done market studies and the ORR is doing one, I think into ticketing machines at railway stations, so it’s not only about enforcement; it can also be market reviews.

Susanna Rogers: In terms of thinking about resources, obviously the CMA are very well resourced, perhaps more so than some of the regulators. Does that make them better placed to take on enforcement cases?

Richard Whish QC: Well I wouldn’t say better placed. I think I would say what I usually say about these things, that each case has to be decided on its own particular merits and what’s going on. There have been infringement decisions adopted by sectoral regulators and certainly the FCA doesn’t lack resources, some of the others obviously have fewer, but I think it’s a question of deciding on the facts of any particular case who is better positioned to take the case on. What I think will happen more and more is that there will be shared use of resources and if that implies a secondment of someone or more than one person from the sectoral regulator to the CMA, or vice versa, so be it.

Susanna Rogers: And then of course the other development in the past year is the clarification in terms of applications for leniency; they now go to the CMA. Does that suggest that the CMA is going to be able to cherry pick the best cases depending on what sector they arise?

Richard Whish QC: No I wouldn’t say that. It seems to me that with something like leniency it’s of such fundamental practical importance for people to know that they’ve got in the door at the right time, but to say there’s one door for these purposes seems to me to be eminently suitable so that’s where you go and put down your marker. It doesn’t follow from that the case will necessarily be done by the CMA; it means that you go to the CMA for the purposes of making the leniency application.

Susanna Rogers: So in terms of our health check then, you think the system is working well and good prospects for the future?

Richard Whish QC: I think it’s working pretty well and I think it’s certainly worthwhile looking for the next report of the CMA which I think is fairly imminent.

Susanna Rogers: Thank you Richard.