A new Competition and Markets Authority: but no new dawn for the public competition law enforcement in the UK

By Stephen Hornsby

With a certain amount of trumpeting, the new Competition and Markets Authority (CMA) came into existence on 1 April — thus merging the Office of Fair Trading (OFT) and the Competition Commission. The CMA has the largest annual budget (£52m) of any competition law enforcement agency in Europe — so much will be expected of it. Unfortunately, any reform of competition law in the UK is painfully slow and piecemeal — as the decades it took for the anachronistic Restrictive Trade Practices Act to be replaced by the 1998 Competition Act illustrates. The reform that gave birth to the CMA is no exception to this English disease; it was a long time coming and it does not go far enough as we shall now see.

Public competition law enforcement through a regulatory body has three main goals that are not always harmonious. The first is to avoid ‘capture’ by those that the regulator oversees; the second is to enable the regulator to reach speedy decisions with effective remedies; and the third goal is to ensure that the regulator respects the rights of defence of those under investigation — this is particularly important where serious penalties can be imposed. 

Most competition regulatory systems in Europe seek to attain these goals by having one body to enforce the rules across all industries — thus avoiding ‘capture’ by sectoral interests (usually powerful oligopolies in specific sectors such as energy, telecoms etc) with internal separation of functions within that body. Such internal separation seeks to achieve the third goal of respecting the rights of the defence (which can conflict with the need for speedy decisions). By ensuring that a fresh look is taken at positions taken initially by officials, it is hoped ‘confirmation bias’ (or the marking of one’s own homework) will be avoided…

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