When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).
This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.
- The CMA’s merger caseload hasn’t increased as much as expected…
The CMA predicted a 50% increase in the number of merger cases post-Brexit. This has not materialized. Between April 2015 and March 2020, the CMA reviewed on average 60 transactions annually. As the pandemic took hold, this dropped to just 38 between April 2020 and March 2021.
Between April and December 2021, the CMA opened 41 merger investigations, suggesting the CMA will be on course to review 60 transactions by the end of March – a 50% increase on 2020-21, but still down on the CMA’s pre-pandemic caseload.
- … but outcomes of investigations into transactions also reviewed by the Commission have generally been consistent.
Since Brexit, the CMA has reviewed 11 transactions which were also notified to the Commission. Only two resulted in different outcomes: one transaction cleared unconditionally by the CMA at Phase 1 required remedies at Phase 2 to obtain Commission clearance; and one where the CMA is undertaking a Phase 2 investigation despite the transaction being cleared with remedies at Phase 1 by the Commission.
While this broad consistency of decisions is likely to be welcomed by businesses, it should also be recalled that:
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