Thank you for inviting me to give a view from the CMA today.
I’m going to focus on competition enforcement work – my area of specialty – because it’s a particularly opportune time to talk about 2 important topics.
First, I’d like to explain the messages that we think businesses should take away from our spate of recent enforcement activity.
Secondly, looking to the future, I want to explain how we propose to make sure our competition enforcement work delivers on the UK government’s steer that we should focus on supporting growth across the CMA’s tools.
The aims of competition enforcement
Before I get into the detail of these topics, however, I wanted to spend a few moments standing back and thinking about what and how we are trying to achieve with our competition enforcement work.
Because this ultimately guides our choices about both what work we do – in other words what cases and other interventions we choose to prioritise – and how we go about it.
At its heart competition enforcement is about safeguarding competitive markets, driving efficiency throughout the supply chain and promoting dynamism, innovation and productivity.
Competition enforcement can also drive down prices for consumers, for businesses and for taxpayers, as well as keeping markets open and creating a level playing field. And it has an important role in driving trust and confidence in markets, for both consumers and investors.
That’s why competition enforcement remains at the core of the work of the CMA as we evolve to meet new policy and economic challenges. And this applies whether we are talking about tackling hard-core cartel conduct, abuses of market power or other illegal and harmful arrangements.
So that is – as most of you in this room will already recognise – what competition law enforcement can achieve. But how, in practice, do we translate this into reality. One important way is by bringing anti-competitive conduct to an end: and that can be through the vehicle of a formal investigation – certainly the aspect of our work that is likely to be most familiar to this audience – but also through other interventions – such as warning or advisory letters that I will talk about later.
We are in many cases however also focused on deterring those who might be tempted to stray over the line. And indeed this can be a crucially important outcome of our work. We do this primarily by imposing fines on companies – almost £650 million over the last 5 years – but also through holding individuals to account through our powers in relation to director disqualification – at current count 29 individuals have been prevented from acting as directors or being involved in the management of a company under the disqualification regime. More recently, those who are found to have committed breaches of competition law also face an increased risk of being excluded from future public tenders as a result of the Procurement Act that came into force this February.
Recent enforcement activity
I’m going to move on to talk about how that aim translates into enforcement activity by reference to 5 recent cases – all of which demonstrate our commitment to deterring conduct that impedes the kind of dynamic, competitive markets that boost our economy.
A brief tour of our recent enforcement cases will serve to underline the variety of victims we aim to protect – taxpayers, workers, consumers, businesses – as well as how anti-competitive conduct has the potential to reduce economic prosperity through dampening innovation or reducing efficiency.
So what, more precisely, have we been doing by way of enforcement since the start of this year.
In February, we fined 4 global investment banks collectively over £100 million for colluding in relation to UK government bonds or gilts (and related products) through bilateral exchanges of information among traders. (The fifth bank involved in the investigation escaped fines because it was the first to self-report the conduct to us under our leniency policy before we’d opened an investigation.) It is, of course, vital that a market of paramount importance to us all – the gilt market – should be able to function freely and fairly and the size of the fine reflects that.
In March, we concluded our first labour market case concerning exchanges of information among sports broadcasters about the rates of pay for freelancer production staff like sound and camera operators with a view, primarily, to aligning those rates or – as one of those involved described it – presenting a ‘united front’. Labour markets are key to a well-functioning economy and, in taking cases in this area, we aim to ensure that workers are able to obtain a fair value for their work but also that businesses can find and hire workers at the right price.
In April, we reached a finding of infringement by many of the global car manufactures and the EU and UK trade association that encompassed a long-running agreement not to advertise their performance against certain green parameters – an investigation we started because we were concerned that this type of conduct could undermine incentives to innovate, including when it comes to sustainable growth. The investigation culminated in a settlement which saw the parties collectively agree to pay fines in the region of £77 million.
I also wanted to highlight a case that is not quite yet concluded which is our investigation into a drug manufacturer who we suspected of spreading misinformation about the safety of a rival drug. To put an end to the investigation, the manufacturer has offered not only to put in place guarantees about how it will interact with healthcare providers going forward – including conducting a communications campaign designed to clarify the position in relation to the relative safety of the rival drug – but also to make a payment of £23 million directly to the NHS. So with this outcome, we would be simultaneously ensuring that a competitor is not wrongly prevented from competing on the merits to grow the sales of its drug, we are protecting the NHS (and ultimately the taxpayer) from the risk of potential financial harm and – perhaps most importantly – making sure healthcare providers have accurate safety information when selecting the right treatment for their patient’s condition.
And while I’m talking about pharmaceuticals, it is also worth highlighting a judgment handed down last week concerning our investigation about excessive pricing of Liothyronine. This case concerned a particularly egregious infringement that saw the sole supplier of an essential drug increase its price over 1000% in less than 10 years, without any justification – costing the NHS millions of pounds. Given the nature of the conduct at issue here, we were extremely pleased that the Court of Appeal found resoundingly in our favour.
It is also worth flagging that as part of its judgment, the Court of Appeal considered how the CMA should approach the issue of deterrence when it comes to setting penalties. And given what I’ve already said about the importance of deterrence to our work, it was comforting that in this case the Court of Appeal upheld the CMA’s approach to ‘specific deterrence’ – essentially agreeing that penalties should be set at a level that is sufficient to deter re-offending by the party being fined relative to global turnover (and therefore re-instating in full the original penalty imposed by the CMA on one of the firms involved).
Before I move on to discuss our future priorities, I did want to highlight that both the vehicle recycling and disparagement cases I mentioned above were also the subject of similar investigations by the European Commission.
Indeed, in the car recycling case, we opened and concluded the cases on the same day. And particularly in the context of this conference, I wanted to stress how vital international cooperation remains to competition enforcement work; whether that be in sharing expertise and best practice or on specific investigations. Indeed, this was brought home to me last week during the International Competition Network’s annual conference which took place in Edinburgh, and which saw agencies come together and discuss how we continue to evolve our agencies and our laws to meet the challenges we collectively face and to exchange best practices in areas as diverse as dawn raids to advocacy.
Looking to the future – priorities for intervention
The government’s strategic steer published today as well as our annual plan highlights the opportunities for our work to continue to drive efficiencies in the provision of public sector services.
As those of you who are familiar with our work will recognise, the CMA has a strong track record in taking cases that serve to protect the public purse. This includes investigations into pharmaceutical companies under both Chapter 1 and Chapter 2 – seeking to detect and deter practices which ultimately drive up prices for the NHS, an investigation into a supplier of school software that we were concerned was trying to ‘lock in’ schools and preventing them from fully benefiting from price and quality competition, and cartel investigations for example into:
- concrete drainage products used, among others, in the construction of roads
- water storage tanks, used by schools and hospitals
And we intend to build on our track record with a focus on public procurement.
It is well-known that public procurement is particularly vulnerable to bid-rigging and that bid-rigging, where present, can substantially increase prices: research suggests that this can be by 20% or more. And this accords with evidence from our own cases that bid-rigging can be extremely lucrative – with some of the parties to our Demolition investigation having ‘compensated’ each other for deliberately losing tenders with substantial payments.
So we intend to intensify our work in this area. For example, by investing further in our detection tools, including – where we can access the right data – using data analytics (including AI) tools to identify suspicious activity. And as I mentioned already there is a new risk facing cartelists arising from the debarment regime introduced by the Procurement Act 2023 which will see them face the possibility of inclusion in a central debarment register and exclusion from future public tenders for a period of up to 5 years.
While public procurement is certainly a priority, it will not be the only area of work we tackle in the short to medium term. For example, we are currently investigating in the areas of housebuilding and travel – both cross-cutting sectors that are key enablers of growth. And, as I will talk about more below, we are generally keen to hear from businesses facing barriers to entry or expansion that competition law can help them solve, particularly in areas that the government has identified as a focus in its industrial strategy green paper.
Looking to the future – the 4Ps
Late last year, the CMA announced a new ‘4Ps’ framework to deliver meaningful changes to how we go about our work, based on clear feedback from businesses and investors. The 4Ps in question are pace, predictability, proportionality and process. This framework is – consistent with the government steer that I’ve already referred to – designed to support growth, investment and business confidence in the UK’s competition and consumer regimes.
We’ve already set out how we intend to apply the 4Ps to our merger review function, as well as to the new digital markets and consumer protection regimes under the DMCCA. Today, I want to say a few words about how we intend to complete the roll-out of the 4Ps to our competition enforcement work.
Pace and proportionality
Of the 4Ps, I would like to start with pace and proportionality and want to take some time to explain:
- as regards ‘pace’ – how we plan to deliver against the new ‘duty of expedition’ introduced by the DMCCA, including through greater use of technology and rigorous streamlining of investigations and decisions while respecting due process
- as regards ‘proportionality’ – how we propose to use the full range of our toolkit while at the same time maintain the deterrence impact of our interventions
Pace
Since the DMCCA came into force in April of this year, we have a statutory duty of expedition that applies to all of our competition enforcement investigations, a change which we worked closely with the government to bring about.
So we have been considering carefully how to get to the right outcomes in a more timely manner: for example, we continue to make significant investments in technology to speed up our processes, for example, for evidence review and we have made substantial efforts to streamline our decisions – while still seeking to ensure they are properly reasoned. We have also recently made changes to the guidance covering our procedures intended to help us work at pace, for example, by setting clear expectations about how we will go about identifying legally privileged documents among material acquired during inspections. While none of this may sound particularly exciting, identifying and pursuing these incremental opportunities is vital if we are to achieve our goal – to reach positive outcomes as quickly as we can without compromising on rights of defence.
And in that context, I firmly believe that this new duty of expedition will help us achieve the right balance between conducting our work at pace and ensuring that we give due consideration to requests we might receive, such as requests from parties – for example, for more time to provide information – or from complainants – for example when they ask for the CMA to conduct further lines of enquiry. Because – and this is worth underlining – our ability to work at pace depends not only on how we conduct ourselves but also on the response of those with an interest in our investigation.
Proportionality
As I mentioned already, we have a range of tools at our disposal to bring about behaviour change both by the parties to the investigation and more broadly: this can of course include a fine imposed following a full administrative procedure but need not always do so. In some cases, use of a softer tool or a consensual outcome may be more appropriate provided this can be done without sacrificing the overall deterrent impact of the regime. So we are focused on achieving the right suite of interventions across the regime.
And that means you can expect 3 things from us going forward.
First, you should expect us only to open a formal investigation where we consider it is warranted by the expected impact should we conclude that an infringement has taken place – whether the direct impact that might result if we put an end to unlawful conduct and/or through the deterrent message that we would send, whether to a firm, sector or about a practice. This commitment is underpinned by our prioritisation principles, which require us to consider the strategic significance and impact of the outcome that may be achieved and to weigh that up against the risk and resources involved, which we consistently challenge ourselves about whether it’s right to open or continue investigations.
In practical terms, this means you can also expect that in many cases we will aim to achieve a change in behaviour without carrying out a full (or indeed any) formal investigation. Indeed, between 2018 and 2024 we sent a total of 593 warning and advisory letters. Such letters put the businesses in question on notice of the CMA’s concerns and include recommendations for ensuring compliance with competition law.
Secondly, we are firmly committed to closing investigations or scoping them more narrowly (for example, reducing the number of parties or the time period of our investigation) where we consider it is proportionate to do so.
Thirdly, where we can do so without undermining deterrence, we will seek to put an end to the matter by consensus, whether through our settlement or commitments procedures. Indeed, with the exception of the Liothyronine case, each of the recent investigations that I talked about earlier ended (or may end) in settlement or commitments.
Being able to bring investigations to an end in this way has clear benefits – both for the parties involved and for the CMA, in bringing finality to the proceedings more quickly and avoiding unnecessary litigation. For that reason, we are particularly pleased that the CAT has twice now upheld – most recently last December – the finality of settlements. withdrawing settlement discounts from parties that appeal. Indeed, it is now a feature of our settlement process that parties must expressly agree not to bring an appeal.
However, it is important to emphasise that, in investigations that are not concluded by way of settlement or commitments, we remain focused on seeing them through where we believe there is significant harm to address or deterrent impact to achieve including, where appropriate, vigorously defending any legal challenges we may face.
Predictability
So, moving on to predictability and in particular plans we have to make a more predictable environment for those firms who wish to collaborate for beneficial purposes and who are considering the competition law risks of doing so.
As competition specialists you will know that we have published a lot of guidance (on both substance and process) as well as full reasoned decisions, so there is transparency of our work and reasoning. Through those publications, we aim to help firms to stay on the right side of the law and also know how to engage with our processes. And we have a wide range of materials intended to help businesses avoid illegal conduct: for example, ‘case studies’ which use ‘stories’ from our work to act as a guide or wider campaign work such as our ‘cheating or competing’ campaign.
That said, we are aware that competition law can be complex. And it would not be a good outcome for the UK if this complexity resulted in competition law having an unnecessary chilling effect on positive, pro-competitive behaviour that could support, for example, innovation or productivity. If, for example, competitors were to be unduly wary of working together to bring innovative products to market or of using their collective purchasing power to sponsor new production techniques or improve the resilience of the supply chain.
Indeed, discussions of industrial strategy inevitably raise questions around policy goals like resilience or global competitiveness, which might lead to the consideration of the potential benefits of strategic domestic suppliers or the creation of globally significant companies. And this might give added salience to the question of how competition law and policy can create the right conditions for companies to scale and remain competitive in the global market – including how to create an environment that fosters beneficial collaborations.
So, turning to what we intend to do in this space. Many of you will likely be familiar with our initiative launched in 2023 on ‘Green Agreements’ which was intended to address exactly the concern I am talking about – in other words fears that businesses were not working together to combat sustainability issues because they were concerned that they might face competition law risks. This initiative has 2 components:
- accessible advice – the Green Agreements Guidance – that clearly explains how the competition rules might apply to a variety of types of cooperation that businesses might want to engage in to meet sustainability goals
- an open offer to provide tailored advice (that we also publish to further demystify our practice)
And from our engagement with the business community and other stakeholders – including the number of requests for advice we receive – we are confident this initiative has been successful. (Indeed, the only time as an enforcer I’ve been asked while on stage what prompted the CMA to do something so brilliant was when I was talking about Green Agreements!)
So, we are now working with the government and business stakeholders to understand whether there are other areas that might benefit from additional intervention from the CMA to support beneficial activity.
This could potentially include bespoke advice, issuing tailored guidance and also making aspects of our existing guidance more accessible.
We have already targeted 2 avenues where there may be a need for us to act: first is the cross-economy area of labour markets. Here, we have heard that businesses want to understand from us in more detail how they can stay on the right side of the law when it comes to hiring practices including, for example, how they can legitimately benchmark their salaries against those of other employers. And we therefore intend to supplement our existing advice to employers.
Secondly, in the key enabling area of skills, we are talking to stakeholders across the 4 nations of the UK to get an understanding of whether competition law concerns are preventing universities from working together in ways that could be good for the economy.
Now I should underline – particularly for those older members of the audience – that we are not proposing to return to the days before the ‘modernisation regulation’ (of 2003) where even pro-competitive agreements required our blessing. And nor are we suddenly going to turn a blind eye to competitor collaborations which, even while they may have a beneficial objective, leave insufficient room for competition and therefore have the potential for harm. However, we recognise that with the premium we have – to my mind rightly – put in recent years on using our decision-making powers to tackle the most egregious harms, we have been investing less in helping those looking to push forward with beneficial collaborations.
And in that spirit, we are interested in hearing from sectors – particularly the 8 key industrial strategy sectors – where there is concrete evidence that competition law concerns are chilling beneficial collaborations and where we might be able to help.
Process
Moving on to the final of the 4Ps – process. Process is about engagement and we are currently focusing on 2 areas where we are looking to improve how we engage with businesses and other stakeholders: complaints and leniency.
Leniency guidance
Our leniency programme remains an important – albeit by far not the only – tool for us to detect cartels accounting and indeed our government bonds, sports broadcasting and vehicle recycling cases all resulted from leniency applications.
At the end of April we launched a public consultation on an updated version of the guidance that underpins that programme. We are aiming to make the guidance easier for firms to use, by bringing it up to date with developments in policy and practice, and by streamlining our procedures; as well as ensuring it continues to have the right balance of incentives for companies and individuals to be the first to apply for leniency. We are looking forward to hearing your feedback on this document.
Complaints charter
When it comes to how we engage with businesses who may be victims of anti-competitive conduct, anecdotal evidence suggests that we could improve on the experience of firms. With that in mind, we intend to publish a ‘Complaints Charter’ that is intended to make our complaints process more accessible and predictable: for example, information about how to make a complaint, and what you can expect by way of response, including how quickly complainants should expect to hear back from us.
I hope that in publishing this charter we not only help firms engage with the CMA but also underline how interested we are in hearing from those businesses that might be suffering as a result of anti-competitive conduct, particularly in the areas we have identified in our Annual Plan as a focus. And we are very happy to engage in discussion at an early stage with those who wish to gauge our appetite to take action on a particular issue. And I would also emphasise that our desire to take action to protect businesses that are doing their very best to grow and to innovate is backed up by strong tools – including interim measures – as well as procedures to protect confidential information.
For the moment I will leave it there, other than to flag that we are continuing to think more broadly including about further changes to our processes that can help embed the 4P principles so please do watch this space.
