On 7 April 2021, the CMA launched its much anticipated Digital Markets Unit (DMU) in shadow form, pending legislation. The new regulator will sit within the Competition and Markets Authority, with the potential to enforce a code of conduct and impose ‘pro-competition interventions’ in digital markets.
Euclid Law partner Sarah Long commented that the clear intention is for the DMU for have teeth. However, what remains to be seen is the role of the DMU in mergers. While it is clear that the DMU is expected to work closely with the CMA enforcement teams to scrutinise digital mergers, the extent of its involvement in either identifying and/or reviewing digital mergers, and the division of labour between the DMU and the CMA’s merger case teams remains unclear.
Long emphasised that “This will be of importance from a practical perspective as the CMA is already expecting a significant increase in its merger control caseload following the end of the Brexit transition period.”
The UK’s Competition Appeal Tribunal yesterday published Epic’s separate claims against Apple and Google, which accuse the companies of abusing their dominance in the markets for distributing apps and processing in-app payments in their respective app stores.
Becket McGrath, a partner at Euclid Law in London, said substantive differences in UK, US and Australian law mean it is “perfectly conceivable” that Epic could have a successful abuse of dominance claim in the UK and an unsuccessful monopolisation claim in the US, or indeed vice versa.
Most of the ongoing discussions around digital markets and competition law concern the balance between regulation – such as the European Commission’s Digital Markets Act or the introduction of the UK’s digital markets unit – and public competition enforcement by authorities, he said.
“While that is very important, this is a good reminder that there is the private litigation aspect of it too”, which on this occasion involves an aggrieved and well-resourced claimant and a system that welcomes these types of claims, McGrath said
To read the full GCR article: https://globalcompetitionreview.com/digital-markets/epic-games-files-new-claims-against-apple-and-google-in-uk
UK competition law beyond the withdrawal – Part I & II
by Becket McGrath
Since the moment that the result of the UK’s referendum on EU membership in June 2016 was announced, there has been significant uncertainty over when the UK would leave the EU, whether the terms for departure could be agreed in time to avoid a “no deal” exit and even whether Brexit would happen at all. The first part focused on the competition law provisions in the Withdrawal Agreement. These provisions confirm the continued application of EU competition law in the UK during the Brexit transition period, which is currently due to end on 31 December 2020 These uncertainties were ultimately resolved sufficiently to enable Brexit to take place on 31 January 2020.
The second part goes beyond the Withdrawal Agreement which also provides for the continued jurisdiction in the UK of the European Commission and Court of Justice of the EU (CJEU) after the end of the transition period for certain matters, including competition investigations that are ongoing at that point and related appeals. Finally, the Northern Ireland Protocol to the Agreement provides for indefinite Commission jurisdiction to supervise UK state aid measures with a potential to affect trade between Northern Ireland and the EU. Assuming that the UK abides by its international law obligations under the Withdrawal Agreement, these aspects of the relationship are now fixed. As a result, the only major area of uncertainty regarding the transition period is whether it will be extended.
To read the rest of this article which was published in Competition Law Insight, click for Part I and Part II.
Sarah Long was asked to comment on The Capital Forum’s Vol. 7 No. 300 story published on 15 August 2019 entitled “CMA Policy: UK Competition Authority Asserts Itself in Anticipation of Brexit”.In anticipation of the UK’s imminent exit from the EU, the CMA has adopted an aggressive approach in a bid to secure a better outcome for UK consumers. […] The CMA “will now have an element of freedom to look at mergers in a different way,” said Sarah Long, a partner at Euclid Law in London, adding that the CMA could ultimately move away from the European Commission’s approach in some key respects.
To read the full article, click here.