by Matthew Austin , Laura Fannin November-24-2020 in Commercial & Business, Competition Law, Brexit

Like many aspects of Brexit, the fate of UK competition law, and its relationship with EU competition law, remains undecided. The outcome is somewhat dependent on whether a no-deal Brexit occurs.

That being said, it is undeniable that the present uncertainty creates the possibility of divergence, to at least some degree, between Irish and EU competition law on the one hand and UK competition law on the other hand. Some of the areas where divergence may arise include:

  1. Legislative changes in the UK diluting some of the current strictures of EU competition law, thereby potentially making the UK competition law regime less rigorous than that which currently applies in Ireland.
  2. Irish businesses operating in both the Irish and UK markets may be subject to different competition law regimes in the two markets.
  3. Mergers which involve a UK aspect may be subject to both UK and Irish merger controls, thereby requiring separate engagement with the separate competition regulators in the two jurisdictions.
  4. A UK business acting in an anti-competitive manner in the Irish market may be the subject of regulatory scrutiny by both the Irish Competition and Consumer Protection Commission (“CCPC”) and the CMA.
  5. The European Commission’s entitlement to carry out a dawn raid on a UK based business will no longer apply, though the CMA will still be entitled to do so.
  6. Block Exemption Regulations (which exempt stated types of agreements from the ambit of competition law) may follow a different path, though it seems likely that the UK government will seek to retain the pro-business impacts of the Block Exemptions.
  7. Regulators in the UK may place emphasis on certain aspects of competition law which are not the subject of emphasis by the CCPC or other EU based competition regulators.

Whilst harmonisation of UK competition law with EU competition law would seem to make practical sense, Brexit may be seen as an opportunity to create an advantage for domestic UK business by creating a more relaxed competition law environment. However, complications arise when business moves beyond UK borders. At that point, the possible commercial benefits of more relaxed UK competition law will soon be overtaken by regulatory and administrative complexity and associated costs.

For the time being, there is still much up to be determined. We will keep you informed as more clarity emerges over the coming weeks and months.

For further information on any of the competition law issues raised, or if you have queries regarding competition law and how it might affect your business, please contact Matthew Austin or Laura Fannin at Hayes solicitors. 

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