What CMA does

Aim

- Promote an environment where people have great choices and fair deals
- Make sure competitive and fair-dealing businesses can innovate and thrive
- Productive and sustainable economic growth

Activities

- Investigating mergers if they have the potential to substantially reduce competition; if they are
likely to do so, the CMA can block it or impose remedies
- Take action against businesses and individuals involved in cartels or anti-competitive
behaviour
- Investigate unfair trading practices, or entire markets if there are competition/consumer
markets
- Encourage govt and other regulators to use competition regulation to protect consumers
- Carry out regulatory appeals in relation to issues like price controls
- Provide information and advice in relation to rights and obligations under
competition/consumer law, the UK internal market through the Office for the Internal Market,
and govt subsidies through the Subsidy Advice Unit

Values

- CMA
o Excellence
o Ambitious
o Evidence-based
o Collaborative
o Respect
o Inclusive
o Impactful outcomes
- Civil Service
o Honesty
o Integrity
o Objectivity
o Impartiality

Role profile

Overview

- Assist lawyers in the CMA for between 6 and 12 months

- Work with members of the Legal Service, Policy and International and know-how teams to
ensure that decisions by the CMA are legally robust and that case teams are aware of, and can
deal with, legal and policy risks
Key accountabilities

- Competition/consumer law enforcement

- Merger control
- Market studies and investigations
- Regulatory appeals
- Litigation
- Subsidy control and internal markets
- Policy advice

Key responsibilities

- Identify and analyse evidence gathered during merger inquiries, market investigations,
regulatory inquiries and appeals or competition/consumer enforcement cases
- Survey international precedents for decisions by competition/other authorities relevant to
certain sectors
- Researching the law regulating economic activities in particular sectors, or the ways in which
companies engage with consumers
- Helping to prepare legal advice or guidance on consumer, competition, markets, subsidy
control, internal markets, regulatory policy issues arising in relation to case and project work
and legislative proposals
- Supporting the capture and development of knowledge expertise and learning from cases
- Participating in any contentious work, including liaison with colleagues within the case teams
and the CMA’s Litigation Unit and external legal advisers

Qualifications

- Degree in law (2:2 or above) OR non-law degree (2:2 or above) and completed GDL
- Exposure to one/more of following areas and awareness of how it fits with CMA work: a)
competition law, b) public and administrative law, c) regulation of utilities, d) judicial review,
e) consumer law
- Excellent verbal/written communication skills, experience working in a team, effective
prioritisation skills and can work to deadlines

Civil Service Success Profiles

- Behaviours
o Seeing the big picture (understand how you contribute to team)
o Changing and improving (review ways of working and suggest improvements/learn
new procedures)
o Making effective decisions
o Leadership (show enthusiasm and take personal accountability for your role)
o Communicating and influencing (put forward views in a clear, constructive and
considerate manner)
o Working together
o Developing self and others (identify gaps in skill/knowledge and plan how to develop
these)
 o Managing a quality service
o Delivering at pace (work with focus, pace and high standards)
- Experience
- Technical

Relevant expertise

- JR/Administrative law
o PL2 materials: the four grounds of judicial review (illegality, unreasonableness,
procedural impropriety, and legitimate expectation)
o Amenability
 R (Datafin plc) v Panel on Takeovers and Mergers, where it was decided that
the panel (which was at the time a private body, although put on a statutory
footing in the Companies Act 2006 in response to the European Takeovers
Directive) was susceptible to JR
 The Takeover Panel protects the interests of shareholders during
takeovers
 Lords Committee report 21/7/23 concluded that the balance of evidence
shows that JR is the appropriate standard for appeals against CMA regulatory
decisions, and should not be changed to full merits appeals, in the interests of
the viability of the regulatory regime and making sure that big tech does nto
take an adversarial approach to the regulators

Introduction to competition law (on gov.co.uk)

o Cartels
 Where two or more business agree (in writing or otherwise) not to compete
with each other
 Can
 Fix prices
o Where two or more businesses agree what prices they will
charge for a product or service to avoid having to compete
with each other
 Engage in bid rigging (e.g. cover pricing)
o Where bidders create the illusion of competition while
secretly agreeing which one of them will win a tender
o Deceives buyers into thinking they’ve got a good price, when
it could have been much lower if the businesses had
genuinely been competing
 Share customers or markets
o Where business agree not to go after each other’s customers,
or decide which territories each business will ‘take’
o Abuse of a dominant position
 Dominant position
 A business which enjoyes substantial market power over a period of
time may be in a dominant position
  Assessment is not based solely on market share, although a business
is unlikely to be dominant if its market share is smaller than 40%
 A business holds a dominant position if it is able to behave
independently of the normal constraints imposed by competitors,
suppliers and consumers
 Abuse
 Anti-competitive conduct which exploits consumers or tends to have
an exclusionary effect on competitors is likely to constitute abuse
 Examples
o Charging prices so low that they do not cover the costs of the
product or service sold
o Offering different prices or terms to similar customers
without objective justification
o Refusing to supply an existing or long-standing customer
without objective justification
o Other possible anti-competitive agreements
 Joint selling or purchasing with competitors
 A retailer agreeing with its supplier not to sell below a particular retail price
 Have a long exclusivity period (over five years)
o Penalties
 Businesses found to have breached competition law can be fined up to 10%
of annual worldwide turnover and ordered to change their behaviour
 Individuals who engage in cartel activity can be prosecuted and sentenced to
up to five years in prison and/or a fine
 Company directors can be disqualified from managing a company for up to
15 years

Hausfeld: recent key judgments and devlopments in UK competition law

- The mitigation defence

o NTN Corpn v Stellantis NV [2022] decided the question of whether an over-charging
supplier can defend the claim by pleading off-setting (the ‘mitigation defence’), or
where the purchaser has mitigated the overcharge by getting reduced prices on
supplies from other suppliers
 It also concerned the question whether it is permissible to plead a defence of
this kind without any actual evidence that the claimant did mitigate its loss in
this way
o In NTN, the Court of Appeal decided that there must be a sufficient causal
connection between the alleged mitigatory steps (the off-setting) and the
overcharge. When pleading causation, the defendant must demonstrate that a) there
is a legal and proximate causal connection between the overcharge and the act of
mitigation; b) this connection is realistic or proximate (the two phrases being
interchangeable) and carries some degree of conviction; the evidence is more than
merely arguable.
 The test for whether a defendant can plead causation is whethere there is a
‘realistic prospect of the plea succeeding at trial’
Pinsent Masons introduction to competition

- Anti-competitive behaviour which may affect trade within the UK is prohibited by Chapters
I (anti-competitive agreements) and II (abuse of a dominant market position) of the
Competition Act 1998
- Anti-competitive behaviour which may affect trade between EU member states is prohibited
by Articles 101 and 102 TFEU
o These rules ceased to have effect within the UK from 1/1/2021, but UK businesses
with cross-border activities within the EU will still be subject to EU competition law
in respect of those activities
- Anti-competitive agreements (Chapter 1/Article 101)
o Consequences of breach
 Fines of up to 10% of group global turnover
 Anti-competitive restrictions in agreements may be automatically void and
unenforceable, and may lead to the entire agreement being unenforceable
 Firms are exposed to actions for damages from consumers, customers and
competitors, including mass actions
 Individuals in the UK can be disqualified from acting as company directors
and risk prosecution under the criminal cartel offence
o Agreements within scope
 Substance, not form (assessed on its objective, or its effect on competition,
not its wording or form)
 Agreements between companies in the same corporate group will not be
caught by the prohibitions
 Fixing purchase or selling prices; limiting or controlling production, markets,
technical development or investment; sharing markets or sources of supply;
applying dissimilar conditions to similar transactions
o Possible exemptions
 Other than hardcore cartel behaviour, an agreement restricting competition
may not be automatically prohibited, particularly where the parties are not
actual or potential competitors or where they do not have sufficient market
share
 Block exemptions may also apply, which automatically exempt agreements
falling within their scope; there are block exemptions for vertical
agreements, technology transfer agreements and research and
development agreements
 Certain conditions must be satisfied for the agreement to be block
exempted: these may relate to the market shares of the parties and the
types of restriction contained within the agreement (many EU block
exemptions have been carried across into UK domestic law)
- Abuse of a dominant market position (Chapter II/Article 102)
o Consequences of breach
 Firms can face fines of up to 10% of group global turnover
 Conduct in breach can be stopped by court injunction
 Actions from third parties who show that they suffered loss as a result of the
anti-competitive behaviour
 Individuals can be disqualified from being company director
 o Behaviour within scope
 To be in a position of dominance a business must have the ability to act
independently of its customers, competitors and consumers
 Must be over 40% market share, presumption of dominance applies
at 50% market share
 Article 102 requires that dominance be in a substantial part of the EU, but
there is no comparable requirement under Chapter II, so dominance may exist
in a small geographical area in the UK
 Imposing unfair trading terms, such as exclusivity; excessive, predatory or
discriminatory pricing; refusal to supply or provide access to essential
facilities; tying (stipulating that a buyer wishing to purchase one product
must also purchase all or some of their requirements for a second product
from the dominant supplier)
o Exemptions
 No equivalent to exemption, but a dominant company may be able to show
that it has an objective justification for otherwise abusive behaviour in certain
circumstances (e.g. where a company refuses to supply a particular customer
based on its poor credit rating)
- Enforcement
o EU competition law no longer applies from 1/1/21, but EU competition law in force
before that date, incuding EU courts’ historic case law, will continue to apply as
‘retained EU law’
o CMA is principal law enforcement authority, although FCA for financial services
sector, Ofgem for electricity sector and Ofwat for water sector all have competition
remit
o Criminal behaviour prosecuted by the CMA together with the SFO

Ashurst introduction to competition

2021 Commons report into UK Competition Regime

- Background
o Legislative framework for UK competition regime is Competition Act 1998, the
Enterprise Act 2002, as amended by the Enterprise and Regulatory Reform Act
2013, which created the CMA
o August 2018: SoS BEIS asked the CMA to come forward with proposals to protect
consumers of digital content and improve trust in markets
o February 2019: CMA Chairman Lord Tyrie outlined proposals in a letter to SoS
(wanted the CMA to be able to act more quickly on competition issues, and wanted
powers to protect customers upgraded to powers

2023 Lords Committee report on CMA

Geradin