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Stumbling Towards the UK ’s New Administrative Settlement: A Study of Competition Law Enforcement After Brexit

  • Joe TOMLINSON (a1) and Liza LOVDAHL GORMSEN (a2)
Abstract

While there has been much talk of the role of parliaments and courts in the Brexit process, far less—indeed very little—has been said about the challenges facing the largest part of the UK government: the administrative branch. Whatever results from the UK’s negotiations with the EU, Brexit will likely necessitate wide-ranging and fast-paced administrative reform in the UK. In this article, we use a detailed case study of a particular part of administration—the Competition and Markets Authority (‘CMA’)—to highlight the nature and extent of the challenges facing administrative agencies. This case study is demonstrative as, while there is an extant UK competition administration structure, competition law and its enforcement are highly Europeanised. We propose that the challenges facing administrative bodies in the UK—including the CMA—can be understood as possessing three key dimensions: internal organisation issues; external coordination issues; and substantive legal issues. We argue that, in many instances, these three dimensions will be in tension which each other. That is to say, the reality of reforming administration post-Brexit will involve trade-offs between questions of internal organisation, external coordination, and substantive law.

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We are grateful to M-J Clifton, Richard Kirkham, and Jack Simson-Caird for comments and discussions on various drafts, as well to Kenneth Armstrong and Okeoghene Odudu for helpful editorial contributions.

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1 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583; R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), [2017] 1 All ER 158 (concerning whether a statute was necessary for the EU to be notified under Article 50, TEU). For discussion of Parliament, see e.g., House of Lords European Union Committee, Scrutinising Brexit: The Role of Parliament (2016) HL Paper 33; Wright, N and Patel, O, The Constitutional Consequences of Brexit: Whitehall and Westminster (UCL, 2018) 21 April 2017, UCL Constitution Unit Briefing Paper. Discussion on the courts has related largely to the future role of the CJEU, see e.g., Hogarth, R, Brexit and the European Court of Justice (Institute for Government, 2017). There has also been wide-ranging discussion of the role of the UK courts. For example, Lord Neuberger—the recently retired President of the UK Supreme Court—has publicly raised this issue, see C Coleman, ‘UK Judges Need Clarity After Brexit - Lord Neuberger’ (BBC News, 8 August 2017) http://www.bbc.co.uk/news/uk-40855526.

2 For an excellent overview and analysis, see R Rawlings, ‘Brexit and the Territorial Constitution: Devolution, Reregulation and Inter-governmental Relations’ (2017) The Constitution Society.

3 Our focus here is largely on central government administration. Distinct issues arise regarding, e.g., local government and devolved administration post-Brexit.

4 This is possible under Article 50 TEU. See further House of Commons Foreign Affairs Select Committee, Article 50 Negotiations: Implications of ‘No Deal’ (7 March 2017) Ninth Report of Session 2016–17.

5 Of course, all administrative systems are imperfect in some way and the current system of competition administration is itself not perfect.

6 There are other agencies in the UK with powers to enforce competition law, e.g., the Financial Conduct Authority (‘FCA’), the Office of Communications (‘OFCOM’), the Office of Water Services (‘OFWAT’), and the Office of Gas and Electricity Markets (‘OFGEM’). These authorities and their competition powers will not be considered here but they create additional complexity to the post-Brexit landscape considered here.

7 R Brazier, Constitutional Reform, 3rd ed (Oxford University Press, 2008), Chapters 1–2.

8 There has, however, been discussion of the recognition of fundamental ‘constitutional statutes’ in recent years, see Ahmed, F and Perry, A, ‘Constitutional Statutes’ (2017) 37(2) Oxford Journal of Legal Studies 461 .

9 Part of this subject was addressed in Le Sueur, A, ‘Designing Redress: Who Does it, How and Why?’ (2012) 20(1) Asia Pacific Law Review 17 ; A Le Sueur and V Bondy, Designing Redress: A Study About Grievances Against Public Bodies (2012) Nuffield Foundation Report. There are helpful general ‘macro’ accounts of administrative change but these rarely dig into the details of the change process, e.g., Cane, P, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016).

10 Ginsburg, T, ‘Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law’ in S Rose-Ackerman and P Lindseth (eds), Comparative Administrative Law (Edward Elgar, 2010).

11 Le Sueur and Bondy see note 9 above, pp 22–32 (considering the various actors responsible for designing redress concerning administration in the UK).

12 Our definition of administrative law is broad, to include all aspects of the relationship between law and administration, and not simply the principles of judicial review.

13 Curtin, D, ‘Executive Power’ in D Patterson and A Södersten (eds), A Companion to European Law and International Law (Oxford: Blackwell, 2016); B Bastos, Beyond Executive Federalism: The Judicial Crafting of the Law of Composite Administrative Decision-Making (2018) unpublished Ph.D. thesis, European University Institute.

14 Bastos, see note 13 above.

15 D Curtin, ‘Second Order Secrecy and Europe’s Legality Mosaics’ (2018) West European Politics (online pre-publication) 4.

16 Ibid, p 4.

17 von Bogdandy, A and Dann, P, ‘International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority’ (2008) 9(11) German Law Journal 2013 .

18 B Chu, ‘Brexit Will Be Like “Removing Egg from an Omelette”, Warns Former World Trade Organisation Chief’ (The Independent, 27 February 2018).

19 HM Government, The United Kingdom’s Exit from and New Partnership with the European Union (2017) Cm 9417.

20 The new post-referendum Prime Minister (Theresa May MP), then campaigning for the post of Conservative Party leader, famously remarked that ‘Brexit means Brexit’, see: A Cowburn, ‘Theresa May Says “Brexit Means Brexit” and There Will Be No Attempt to Remain Inside EU’ (The Independent, 11 July 2016).

22 See Article 4 of the TFEU. Article 4(1) states that the EU shares competence with the Member States, where the Treaties confer on it a competence which does not fall within the category of exclusive competence (Article 3 TFEU) or the category of competence ‘to carry out actions to support, coordinate or supplement the actions of the Member States’. Furthermore, Article 4(2) TFEU provides a list of ‘principal’ categories of shared actions. Therefore, the list should not be considered exhaustive, as the category of shared competence is a ‘general residual category’, see Craig, P and de Búrca, G, EU Law: Text, Cases, and Materials, 6th ed (Oxford University Press, 2015), p 83 .

23 In its February 2017 White Paper (see note 19 above, p 10), the Government stated one of the proposed Great Repeal Act’s ‘three primary elements’ will be to ‘enable changes to be made by secondary legislation to the laws that would otherwise not function sensibly once we have left the EU, so that our legal system continues to function correctly outside the EU’. See further J Simson Caird, House of Commons Library Briefing Note: Legislating for Brexit: The Great Repeal Bill (23 February 2017) Number 7793, section 5; House of Lords Constitution Committee, The ‘Great Repeal Bill’ and Delegated Powers (7 March 2017) HL Paper 123.

24 Article 50, in part, provides ‘[t]he Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period’.

25 K Armstrong, J Bell, P Daly, and M Elliott, Implementing Transition: How Would it Work? (2017) University of Cambridge Faculty of Law Research Paper No. 57/2017, available at https://ssrn.com/abstract=3052328 or http://dx.doi.org/10.2139/ssrn.3052328.

26 HM Government, see note 19 above, para 1.8.

27 B Forbes and M Hughes, ‘Brexit and Implications for UK Merger Control: Implications for the CMA’s Workload and What Not to Do’ (10 February 2017) Competition Bulletin; Vickers, J, ‘Consequences of Brexit for Competition Law and Policy’ (2017) 33 (supp. 1) Oxford Review of Economic Policy 70 .

28 Teubner, G, ‘Juridification: Concepts, Aspects, Limits, Solutions’ in G Teubner (ed), Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust, and Social Welfare Law (Walter de Gruyter, 1987).

29 Mashaw, JL, ‘Structuring a Dense Complexity: Accountability and the Project of Administrative Law’ (2005) 5(1) Issues in Legal Scholarship 1 , p 14.

30 Ibid.

31 In its written evidence (CMP0002) to House of Lords European Union Committee, Brexit: Competition and State Aid (2018) HL 67, the CMA has estimated that Brexit could result in an additional caseload of 30 to 50 phase 1 mergers and half a dozen phase 2 cases each year.

32 National Audit Office, Report by the Comptroller and Auditor General: The UK Competition Regime (2016), p 4.

33 Lowe, P, Marquis, M, and Monti, G (eds), European Competition Law Annual 2013: Effective and Legitimate Enforcement of Competition Law (Hart, 2016).

34 The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (implementing Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing action for damages under national law for infringements of the competition law provisions of the Member States and of the European Union). On the benefits, see Department for Business, Innovation & Skills (now BEIS), UK Implementation of the EU Damages Directive (2014/104/EU): Impact Assessment (2015).

35 This body was created on 1 April 2014 by the Enterprise and Regulatory Reform Act 2013 and took over the competition functions of the Office of Fair Trading and Competition Commission.

36 A working group—the Brexit Competition Law Working Group—chaired by Sir John Vickers has been established to consider these issues, see: Brexit Competition Law Working Group, Conclusion and Recommendations (2017), para 1.7.

37 Ibid, para 2.3.

38 M Coleman, ‘The Future of Section 60 CA98 Post-Brexit: Observation on the Provisional Conclusions of the Brexit Competition Law Working Group’ (2017) Brexit Competition Law Working Group, available at https://www.bclwg.org/wp-content/uploads/2017/05/Martin-Coleman-Section-60-Note.pdf.

39 Brexit Competition Law Working Group, see note 36 above, para 2.8.

40 Coleman, see note 38 above.

41 Ibid.

42 Brexit Competition Law Working Group, see note 36 above, para 2.8.

43 House of Lords European Union Committee, see note 31 above.

44 Ibid, para 1.5.

45 P Lowe, The Implications of Brexit for UK and EU Competition Policy and Law Enforcement (2016) Response to Brexit Competition Law Working Group Issues Paper, p 11.

46 Ibid, p 12.

47 Council Regulation (EC) 139/2004 [2008] OJ L24/1, 29.1.2004. See further N Parr, R Finbow, and M Hughes (eds), UK Merger Control: Law and Practice, 3rd ed (Sweet & Maxwell, 2016).

48 The European Merger Regulation 139/2004 Article 9(2) provides that a member state may request referral on its own initiative or upon the invitation of the Commission.

49 Conflicting outcomes between the UK and other European competition authorities have recently occurred in relation to Akzo’s proposed acquisition of Metlac (which was cleared in several jurisdictions around the world but blocked in the UK) and Eurotunnel’s attempt to purchase the former SeaFrance business (which was cleared in France but blocked in the UK). Another, older example of conflicting outcomes occurred in relation to GE’s bid for Honeywell (which was cleared in the USA but blocked in the EU).

51 European Commission, Merger Statistics (2017), available at http://ec.europa.eu/competition/mergers/statistics.pdf.

52 Forbes and Hughes, see note 27 above; Vickers, see note 27 above.

53 Section 22(2)(a) and Section 33(2)(a), Enterprise Act 2002.

54 Office of Fair Trading, Mergers: Exceptions to the Duty to Refer and Undertakings in Lieu of Reference Guidance (2010) OFT1122.

55 Ibid.

56 Competition and Markets Authority, Mergers: Exception to the Duty to Refer in Markets of Insufficient Importance (June 2017) CMA64.

57 Ibid.

58 J Schmidt, ‘Big Enough to Matter or Too Small to Care? Small Mergers and Competition Authorities’ (2017) Shepherd and Wedderburn, available at https://shepwedd.com/sites/default/files/Big_enough%20_to_matter_or_too_small_to_care.pdf.

59 Transactions are caught by the UK merger control rules (under the Enterprise Act 2002) and may be investigated by the CMA if there is a ‘relevant merger situation’. A merger situation will qualify for review if it meets either of the two alternative jurisdictional tests: (1) If the enterprise to be acquired exceeds £70 million turnover (the turnover test); or (2) as a result of the merger, 25% share of supply of goods or services of any description is created or enhanced in the UK as a whole or in some ‘substantial part’ of the UK (share of supply test).

60 Brexit Competition Law Working Group, Brexit Competition Law Working Group: Second Roundtable (2016), pp 2–3.

61 A Lindsay, Brexit Competition Law Working Group Issues Paper Response (2016), p 2.

62 In October 2017, the UK government, through the Department for Business, Energy and Industrial Strategy, launched the National Security and Infrastructure Investment Review, where it is proposed to allow the government to intervene in the merger of small businesses when there are national security concerns, see: Department for Business, Energy & Industrial Strategy, ‘Government Updates Mergers Regime to Protect National Security’ (17 October 2017), available at https://www.gov.uk/government/news/government-updates-mergers-regime-to-protect-national-security.

63 Vickers, see note 27 above.

64 Brexit Competition Law Working Group, see note 36 above, para 3.9

65 Ibid, para 3.12.

66 Reader, D, ‘Accommodating Public Interest Considerations in Domestic Merger Control: Empirical Insights’ (2016) UEA Law School Centre for Competition Policy, p 58 .

67 Ibid, p 1.

68 Reader, see note 66 above.

69 Office of Fair Trading & Ors v IBA Health Ltd [2004] EWCA Civ 142 (19 February 2004).

70 Reader, see note 66 above.

71 Ibid, p 25

72 Ibid.

73 Brexit Competition Law Working Group, see note 36 above, para 3.14.

74 European Council (Art. 50) Guidelines Following the United Kingdom’s Notification Under Article 50 TEU (29 March 2017), available at http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines.

75 Ibid, para 20.

76 Ibid, para 23.

77 Crafts, N, ‘Brexit and State Aid’ (2017) 33 (supp. 1) Oxford Review of Economic Policy 105 .

78 Directorate-General for Internal Policies, Consequences of Brexit in the Area of Public Procurement (April 2017) IP/A/IMCO/2016-23, p 27.

79 Article 107 TFEU, which provides that ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

80 For a discussion on the substantive law, see Peretz, G, Bacon, K, and Taylor, I, ‘Bringing State Aid Home: Could an Effective State Aid Regime Be Devised for the UK?’ (2017) UK State Aid Law Association, paras 1220, 25 , available at http://uksala.org/bringing-state-aid-home-could-an-effective-domestic-state-aid-regime-be-devised-for-the-uk.

81 Ibid, para 25.

82 For example, European Commission Decision of 30 August 2016 State Aid SA.38373 – (Apple); European Commission Decision of 21 October 2015 on State Aid SA.38374 – (Starbucks); European Commission Decision of 21 October 2015 on State Aid SA. 38375 – (Fiat); State Aid SA.38944 – (Amazon); State Aid SA. 38945 – (McDonald’s); and SA.44888 – (GDF Suez).

83 Lovdahl Gormsen, LLegitimate Expectation of Consistent Interpretation of EU State Aid Law: Recovery in State Aid Cases Involving Advanced Pricing Agreements on Tax’ (2017) 8(7) Journal of European Competition Law and Practice 423 .

84 Belgium v Commission Case C-142/87, EU:C:1990:125, para 66; Spain v Commission Joined Cases C-278/92, C-279/92, and C-280/92, EU:C:1994:325, para 75; Commission v Italy Case C-350/93, EU:C:1995:96, para 21; Italy v Commission Case C-310/99, EU:C:2002:143, para 98.

* We are grateful to M-J Clifton, Richard Kirkham, and Jack Simson-Caird for comments and discussions on various drafts, as well to Kenneth Armstrong and Okeoghene Odudu for helpful editorial contributions.

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