Brexit and Antitrust: Impact on Public and Private Antitrust Enforcement

Posted by Dechert

Brexit and Antitrust: Impact on Public and Private Antitrust Enforcement

The UK may leave the EU on 29 March 2019 without a transition period or agreed arrangements on the terms of its exit. There are multiple implications:

• Businesses subject to an ongoing EU antitrust investigation on the date of exit may be subject to an additional investigation by the CMA, since the European Commission will lose its jurisdiction to investigate UK aspects of alleged infringements. Businesses that have applied for leniency to the Commission will need to consider whether a parallel application to the CMA is necessary.
• The risk of parallel investigations extends to post-Brexit conduct generally since the existing formal and informal jurisdiction mechanisms between the EU and Member States will no longer apply in the UK.
• Claimants pursuing private damages actions for EU antitrust infringements will no longer be able to rely in UK courts on post-Brexit Commission decisions as a binding finding of an infringement in follow-on claims.
•  The CMA has put forward a number of proposals for the overhaul of the UK competition regime, but a No Deal Brexit may delay implementation of those reforms.