Improved collaboration and dialogue is expected to have a mutual benefit for antitrust enforcement even within the bounds of a relatively limited agreement
The new agreement will supplement existing EU-UK cooperation
On 29 October 2024, the EC and the UK Government formally concluded technical discussions on a much-anticipated competition cooperation agreement between the EU and the UK. The agreement will supplement the existing EU-UK Trade and Cooperation Agreement (TCA), which came into force in May 2021 and foresaw the possibility of the jurisdictions entering into a separate arrangement on competition cooperation. In June 2023, the EU Council authorised the EC to open negotiations with the UK on potential coordination in competition matters, which both sides acknowledged had begun at the third meeting of the TCA Partnership Council on 16 May 2024. The future agreement will allow the EC, national competition authorities (NCAs) of EU Member States and the Competition and Markets Authority (CMA) in the UK to cooperate directly in competition investigations. The EC has negotiated similar international agreements before, including with Canada, Japan, South Korea and the US. However, this is the first EU competition cooperation agreement enabling the bloc’s NCAs to also cooperate directly with a competition authority from a third country, as is foreseen by the TCA for the UK.
Both sides have welcomed developments, anticipating improved collaboration on issues of shared interest
The cooperation agreement between the EU and the UK is a mark of commitment that will ensure that important antitrust and merger investigations are brought to each other's attention. It will also allow for the coordination of similar or parallel investigations between the jurisdictions involved where necessary, setting out clear principles of cooperation aimed at avoiding any conflicts between them. With respect to the exchange of confidential information, the consent of the organisation providing the information will continue to be required (via a so-called 'waiver'). According to Margarethe Vestager (EVP and Commissioner for Competition, EC), the agreement will establish a “predictable and transparent framework” under which the EU and the UK will be able to work together on competition enforcement, exploiting the full potential of the TCA. Sarah Cardell (CEO, CMA) has also welcomed the agreement, stating it will reduce unnecessary barriers so that Europe’s competition authorities can collaborate more freely to ensure positive outcomes for “fair-playing” businesses and consumers.
The EU’s agreement with the UK will not mean a return to a pre-Brexit level of cooperation
Closer international cooperation and greater dialogue is expected to deliver mutual benefits in more effective enforcement of competition laws; however, the forthcoming EU-UK agreement is fairly limited compared to other agreements of this type. It falls short of the EU-Switzerland agreement that includes the sharing of information obtained under compulsory powers. An agreement among five Nordic countries goes further, allowing for investigative assistance whereby one competition authority may use its powers to assist another. The EU-UK agreement will not see a return to the same level of cooperation as was the case before the UK left the EU, such as when mergers that met certain thresholds were assessed under the EU’s ‘one stop shop’ review mechanism. Nevertheless, it represents a step forwards in post-Brexit relationship building, which the UK Government also considers will complement its call for regulators to support the country’s growth mission. The EU-UK agreement will likely enter force within the coming year after both sides have finalised their ratification procedures. In the UK, Parliament will have the opportunity to consider the agreement in detail once the text is published for scrutiny. In the EU, the EC will prepare proposals for the Council's signature, although it will also need the approval of the European Parliament.
