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Legal Focus
JANUARY 2013
The changing landscape of UK competition law
Competition law is complex and companies need sound advice to navigate the potential obstacles and avoid hefty fines. The landscape of competition law in the UK is changing, and in preparation for wider reforms set to be made to the UK competition law regime, the Office of Fair Trading recently published revised guidelines on its new decision-making processes, attempting to speed up the enforcement of antitrust rules and increase engagement with the parties involved. To find out more about this and the wider issues which affect competition law, Lawyer Monthly speaks to Howard Cartlidge from Olswang. Howard is the partner heading the EU & Competition practice in the London office of the firm, which is an international law firm with a special focus on the technology, media and telecommunications sectors.
Please introduce yourself, your role and your firm.
Although Olswang focuses on the technology, media and telecommunications sectors, we handle cases across a wide range of industries. Our EU & Competition practice is particularly noted for our work on competition law based disputes and complaints. This includes both investigations by competition authorities such as the Office of Fair Trading (OFT) in the UK and the European Commission, and litigation in the courts.
What are the main points of the oFt’s revisions?
These new guidelines come at an interesting time for the OFT. Legislation is currently going through the UK Parliament that will merge the OFT in 2014 with the UK's other main competition authority, the Competition Commission, to form a new "Competition and Markets Authority" (CMA).
As a result, these new guidelines are in principle only effective for the relatively short remainder of the OFT's lifetime. However, the guidelines have been closely supervised by the UK Government and are clearly intended as a template for how the new CMA will operate, so
they are an important development in how competition law is enforced in the UK.
The objectives of the new guidelines are to improve both the speed and robustness of OFT decision-making – objectives that are not always compatible. The key development is the introduction of "collective decision-making". In the past OFT decisions on whether a business had entered into an anti-competitive agreement or abused a dominant market position were made by a single individual.
Under the new guidelines a "Case Decision Group" of three senior officials separate from the OFT investigatory team will decide whether to issue an infringement decision and what financial penalty to impose. The aim is to reduce the risk of "confirmation bias" – investigators reaching decisions that confirm that their efforts in their investigation were fully justified.
A second major development is increased transparency. For the first time, the OFT has published on its website information on all of its antitrust investigations, including details of the OFT's anticipated timelines. Whilst names of companies under investigation still generally remain confidential, this represents a significant