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    The Regulatory Environment: Part Two of The Investors' Guide to the United Kingdom 2015/16
    The Regulatory Environment: Part Two of The Investors' Guide to the United Kingdom 2015/16
    The Regulatory Environment: Part Two of The Investors' Guide to the United Kingdom 2015/16
    Ebook93 pages1 hour

    The Regulatory Environment: Part Two of The Investors' Guide to the United Kingdom 2015/16

    By Jonathan Reuvid

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    About this ebook

    The second section of the Investors’ Guide to the United Kingdom describes in detail the key elements of the UK regulatory environment with which inward investors need to be familiar before investing. This includes competition law, the regulation of financial services, company formation, intellectual property, compliance with money laundering regulations and the personal immigration regime for individual investors.
    LanguageEnglish
    PublisherLegend Press
    Release dateDec 4, 2015
    ISBN9781785079382
    The Regulatory Environment: Part Two of The Investors' Guide to the United Kingdom 2015/16

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      Book preview

      The Regulatory Environment - Jonathan Reuvid

      Investment

      Part Two:

      The Regulatory Environment

      2.1 COMPETETION LAW AND POLICY IN THE UK

      Emanuela Lecchi, Watson Farley & Williams LLP

      INTRODUCTION – SUBSTANCE & ENFORCEMENT

      Competition law has two levels of complexity. First, it is substantively complex. Second, it is complex when it comes to enforcement due to the interplay between the workings of various regulators and courts both at the national level (in each member State of the European Union) and at the European level.

      In this chapter1 we aim to bring some clarity to the main concepts of competition law as it applies in the UK, and give a brief overview of recent reforms to the existing regime. Readers with an interest in competition law should consider a specialised text for an in-depth analysis.

      COMPETITION LAW – THE SUBSTANTIVE RULES

      Competition law at the European level and in most member States of the European Union (including the UK) is designed to deal with three main substantive situations, namely:

      a.   Anticompetitive agreements (Art. 101, Treaty on the functioning of the European Union (TfEU); Chapter I Prohibition, UK Competition Act 1998 (UKCA 1998));

      b.   Merger control (EU Merger Regulation; UK Enterprise Act 2002 (EA 2002); and

      c.   Abuse of a dominant position (Art. 102, TfEU; Chapter II Prohibition, UKCA1998).

      In addition, both at the European level and in some member States (including in the UK) the competition authorities (and, in the UK, the sector regulators) can investigate sectors which may show features (often structural features) which impede competition in some way (so-called market investigations).

      There are then two sets of rules often dealt with by lawyers specialising in competition law. These are, on the one hand, rules designed to deal with State Aids and rules designed to ensure a level playing field amongst companies bidding for public works and services; and, on the other hand, rules to ensure that parallel imports (usually of pharmaceuticals, or cars) are not impaired throughout Europe. State Aids, public procurement and parallel import have a common market raison d’être and are assessed, amongst others, with reference to underlying concepts of distortion of competition. Space dictates that they cannot be considered further here.

      RECENT COMPETITION LAW REFORM IN THE UK – THE COMPETITION AND MARKETS AUTHORITY

      In recent years there have been several important changes to competition law in an attempt by the UK Government to make the existing regime more effective in terms of enforcement and quality of decision making. The Enterprise and Regulatory Reform Act 2013 (ERRA), which received Royal Assent on 25 April 2013, contained a number of important reforms in relation to competition law.

      The most notable change was made to the institutional architecture. In 2014 the Office of Fair Trading (OFT) and the Competition Commission (CC) were abolished and replaced by a new body, the Competition and Markets Authority (CMA). The rationale behind creating a single authority is that it will be able to deploy resources more effectively than the two separate bodies, the OFT and CC, were able to do. The CMA’s single objective is to ensure the smooth running of the markets and protect the best interests of the consumers, businesses and ultimately, the economy. In practical terms, this reform has given the Government limited but increased powers to intervene in the assessment of mergers or the investigation of markets.

      In addition, the CMA has gained additional powers, including in relation to information gathering and the use of interim measures in merger situations. The CMA is still in its first few months of operation A more detailed overview of the role of the newly created CMA is discussed where relevant below.

      Following the Financial Services (Banking Reform) Act 2013, the Financial Conduct Authority (the FCA) will have concurrent competition powers from April 2015 for the provision of financial services. As a consequence, the FCA will be able to enforce competition law in the financial sector in the same way as the CMA is able to. The financial services sector has been identified by the Government as a key sector of focus in the coming years. This is also highlighted by the formation of the new payment systems regulator, who will also have concurrent competition powers from 2015.

      THE THREE MAIN SUBSTANTIVE SITUATIONS

      In the experience of the authors, the following Figure 2.1.1 helps to understand the three main situations with which competition law is mostly concerned, by visualising each situation by reference to a bar designed to represent market concentration.

      Figure 2.1.1 The three main situations addressed by competition law

      The left-hand side reflects a situation where the marketplace is close to a situation of perfect competition, progressively moving towards a situation of dominance and, on the extreme right, monopoly.

      Anticompetitive Agreements

      The first situation, anticompetitive agreements, occurs in a relatively unconcentrated marketplace, where there would remain a sufficient number of undertakings to compete, provided that the market remained competitive. If these undertakings enter into anti-competitive agreements, and, for example, agree to fix prices, or partition marketplaces, then the fact that there may continue to exist a number of undertakings is irrelevant as those undertakings will effectively agree to act as one single independent undertaking (a monopolist), rather than as an individual profit maximising firm might.

      The most pernicious form of anticompetitive agreements is, of course, the cartel. In Europe, the focus is on tackling cartels: leniency and immunity applications are accepted by whistleblowers and the amount of fines has increased considerably. A number of jurisdictions in the European Union have introduced criminal sanctions for executives involved in cartels (cfr. Ireland, the UK, Hungary and Romania amongst others). One of the more controversial reforms resulting from

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