The Proposed Agreement
On 20 May, the European Commission announced that it had adopted the proposed text for an EU-UK Competition Cooperation Agreement (the Agreement), by publishing a proposal for a Council Decision approving signature by the Commission on behalf of the EU. This appears to be one of the first tangible outcomes from the much-publicised EU–UK Summit on 19 May, which addressed a broad range of topics of mutual interest. Indeed, while statements on security and defence cooperation received more media attention, the Agreement is specifically referenced at paragraph 47 of the ‘Common understanding’ for a renewed agenda for EU/UK cooperation published at the end of the summit. This referred to “the mutual benefit of cooperation in competition enforcement” and noted that the Commission and UK welcomed “the successful conclusion of negotiations for a competition cooperation agreement between the European Union and the United Kingdom”.
Once concluded, the Agreement will establish a formal framework for cooperation on competition matters between the European Commission and the National Competition Authorities (NCAs) of the EU Member States, on the one side, and the UK’s Competition and Markets Authority (CMA), on the other.
Although the EU-UK Trade and Cooperation Agreement, which entered into force on 1st May 2021, provided for the possibility of a competition cooperation arrangement between the parties, political disagreements arising from the UK government’s handling of the Brexit process delayed progress. One less noted aspect of the Windsor Framework negotiated by the previous Conservative government in February 2023 under Prime Minister Rishi Sunak was to unblock this process, meaning that the European Council could finally authorise the Commission to open negotiations with the UK on 8 June 2023. Negotiations proceeded relatively smoothly from that point at a technical level and were concluded in October 2024.
The Agreement is intended to facilitate cooperation in cross-border antitrust and merger investigations concerning the EU and UK. State aid or regulatory matters are not covered. As a result, issues raised under the EU Digital Markets Act or the tech regulatory aspects of the Digital Markets, Competition and Consumers Act 2024 (DMCCA) do not fall in the scope of this Agreement. The proposed text of the Agreement, which is annexed to the Commission’s proposal for a Council Decision, confirms that such cooperation will involve notification of significant enforcement and merger control activity affecting the other party (Article 3) and the possibility to coordinate enforcement activities (Article 4). Additionally, negative comity provisions seek to minimise the risk of jurisdictional conflicts between the parties (Article 5). Finally, the Agreement includes provisions for the sharing, use, and confidentiality of information (Articles 6 to 9).
The OECD classifies competition cooperation agreements into two main generations based on their scope: the first—such as those between the EU and third state jurisdictions including the US, Japan, South Korea, and Canada—only permit the exchange of non‑confidential information, while the second—like the EU‑Switzerland accord and the Multilateral Mutual Assistance and Cooperation Framework (a non‑binding memorandum of understanding among the UK, Australia, Canada, New Zealand, and the US)—allow for deeper cooperation, including the sharing of confidential information obtained through coercive measures.
Although the Agreement’s limited scope may at first glance place it among first-generation cooperation frameworks (reflecting the UK’s post-Brexit status as a third country), its substantive provisions place it closer to a second-generation agreement. Although the Agreement constitutes the first EU competition cooperation instrument that omits a positive comity clause — that is, the option for one party’s competition authority to formally request that the other initiate enforcement action against anticompetitive conduct affecting its own interests – it introduces a notable innovation by enabling direct cooperation between the UK’s Competition and Markets Authority (CMA) and individual NCAs, without the involvement of the European Commission. While this marks a positive development, the level of cooperation with NCAs remains significantly below that which the CMA enjoyed as a member of the European Competition Network (ECN) prior to the UK’s withdrawal from the EU.
In terms of information exchange, while the Agreement lacks express provision for the exchange of confidential information in the absence of an express waiver, it appears to go beyond the limitations typical of earlier first-generation cooperation arrangements by enabling sharing of confidential information without the parties’ consent under certain conditions. Specifically, Article 6(2) of the Agreement states that “it shall not be necessary for a competition authority to seek [consent to the sharing of confidential information] to the extent that the sharing of that information without consent is permitted by applicable domestic law.” For the EU, domestic law is defined the whole of law and regulation of the EU and its member states. It is notable in this context that the UK Enterprise Act 2002 was amended in May 2024 to permit disclosure of confidential information for designated cooperation arrangement purposes (section 243C). Specifically, the new provision (which was presumably drafted in anticipation of the Agreement and similar agreements with other authorities) states that confidential information may be disclosed by the CMA “to an overseas public authority for a purpose or by virtue of a designated cooperation agreement” without infringing the general prohibition on disclosure contained in Part 9 of that Act. Unless the information is protected by a more specific provision, the CMA should thus be able to exchange such information to the Commission and NCAs without a waiver. Information can also be shared, via the Commission, with the EFTA Surveillance authority. Information exchange from the EU side to the Commission may be more constrained, however, especially given the strict approach to data protection of certain Member States.
Practical implications
Despite the inherent limitations stemming from the UK’s status as a third country, the Agreement represents an important and constructive step forward in the CMA’s relationship with the Commission and NCAs. Although (as noted above) the process leading to this proposed cooperation has been underway for some time, the EU’s final move toward signing and adoption is concrete evidence that the current Labour government’s much-vaunted EU ‘reset’ is beginning to bear fruit. It is nevertheless important to note that there has already been a degree of cooperation between the Commission and CMA on enforcement cases, despite the political headwinds. For example, the two authorities issued press releases on the same day (or one day after another) regarding decisions to impose fines in parallel End-of-life vehicles cartel cases (2025), or the opening of investigations into Meta’s marketplace (2021), and Google & Meta header bidding (2022).
Once the Agreement is up and running, we can expect to see even deeper cooperation between the Commission and CMA on competition matters and enhanced information sharing (albeit potentially asymmetric). It is unfortunate that cooperation on technology regulation is not covered, given the pressing need for cooperation on the Commission and CMA’s respective enforcement of the DMA and the digital market regulation aspects of the DMCCA. Hopefully this can be addressed through the exchange of views on aspects of mutual interest where there is no need for information exchange and, where an exchange would be beneficials, the provision of waivers by parties.
Cooperation between the CMA and NCAs should be dramatically enhanced, compared with the current position. Although the Agreement provides only for coordination on NCAs’ enforcement of EU law, rather than domestic competition law, in practice this may have limited impact, given that NCA cases likely to be of interest to the UK will typically involve parallel application of EU and domestic competition law. In the light of such enhanced cooperation, and when domestic law does not allow for the exchange of confidential information, the pressure on parties to grant waivers to facilitate such cooperation may increase.
Where consent is still required, this will oblige parties carefully to assess the implications of granting waivers in an individual case. Standard waiver wording may also need careful negotiation, especially when it comes to governing further dissemination between agencies. Given that the agreement only permits sharing by and with the CMA, further provision may be needed to take account of concurrency, under which competition enforcement in regulated sectors is undertaken in the UK by sectoral regulators, rather than the CMA. As it stands, it appears that such investigations would need to be undertaken by the CMA if they involve the use of information provided by the Commission or an NCA.
Although the text of the Agreement appears to be settled, it still needs to be signed and adopted by the Commission and the UK. Hopefully this will now take place swiftly, once signing of the Agreement has been formally approved by the Council on the basis of the proposal.
