The consequences of Brexit on competition law You said you wan
Abstract As negotiations remain open and all exit scenarios possible after the extension of the Brexit deadline to the 31st of October, this article explores short and long-term implications of Brexit on the UK and EU competition regime. Overall, the draft deal negotiated in 2018, at the time of writing, attempts to maintain a regulatory status-quo until a free trade agreement is agreed upon, providing for key transitional arrangements and work-sharing mechanisms for ongoing and future procedures. Absent of a deal, and consistent with UK businesses’ interest to keep close ties with the EU, most of pre-Brexit EU competition rules are planned to be incorporated into domestic law. Yet, effective public and private enforcement of the EU and UK competition laws would be immediately threatened by parallel proceedings and investigations, leading to inconsistent decisions and legal uncertainty for businesses. In any event, the alignment of UK and EU competition and State aid laws is likely to be required by the EU as a precondition for the conclusion of the ambitious future economic partnership ambitioned by the UK.
Habemus pactum? While no white smoke was spotted coming out of 10 Downing Street, the long-awaited Draft Withdrawal Agreement (“DWA”) was technically agreed on by European Union (“EU”) and United Kingdom (“UK”) negotiators on 14 November 2018  The deal was then endorsed on a political level on 25 November 2018  by EU Members, and has now to be approved by the British Parliament scheduled on 11 December 2018 . Yet, both sides of the channel are still preparing for the worse. The European Commission (“EC”) just published a Contingency Action Plan in the case of a no deal scenario.4 This possibility is also being contemplated by the UK government,5 which recently issued draft amendments to the existing national competition law framework for the transition to a standalone competition regime.6 This cautiousness is explained by the political isolation of Prime Minister Theresa May within the Conservative Party and Parliament, unlikely to ratify the deal as it stands. May’s halfway Brexit plan to leave the Single Market while preserving the closest possible ties with the EU discontents Brexiters and Pro-Europeans alike. Most tellingly, Eurosceptic leader Boris Johnson and his Europhile brother Jo Johnson both resigned from the government7 in protest over the terms on which May hopes to secure Britain’s exit. Both reached the conclusion that the proposed arrangements are “substantially worse than staying in the EU” and amount to “vassalage”, as the UK would be “out of Europe, yet run by Europe, bound by rules which [it] will have lost a hand in shaping”.8 After the publication of the draft deal, three more cabinet members resigned, including the Brexit secretary.9 What the future of competition law will look like post-Brexit heavily depends on May’s Government delicate trade-off between contradictory political and economic objectives. Brexit vote is generally analysed as a popular demand to take back sovereign control of UK laws, borders and money.10 It undoubtedly entails opting out of the Single Market to end the supremacy of Union law and European Court of Justice (“ECJ”) oversight over domestic courts. This so-called “hard Brexit,” stemming from political imperatives would allow for change and innovation in all fields of law on which full sovereignty is to be recovered. Arguably, the UK would be free to implement a completely different set of competition rules that it considers to be a best fit to its specific national interests. Legislative reforms could endorse a protectionist approach that fosters public interest considerations over market competition,11 or, to the contrary, the UK could go further in the economic analysis of competition law and develop a more efficient-based approach. In fact, this is very unlikely to happen. Incentives for policy innovation have clearly been outweighed by the pragmatic necessity to provide legal certainty to businesses operating cross-borders, and to secure “as frictionless trade as possible with European markets without being a member of the Single Market”.12 As a result, the government’s current plan for post-Brexit competition law is to depart as little as possible from existing rules on mergers, antitrust and State aid as to preserve UK’s economic interests and attractiveness to foreign investors. Also, EU Members have made crystal-clear that any future trade deal to be negotiated must ensure fair and open competition so that UK and EU businesses compete on the same level. Thus, “fundamental changes to the UK competition framework” are not to be expected “beyond the changes necessary to ensure [its] competition regime remains fully operational when [UK] leave[s] the EU”.13 It is also undisputed that EU competition law has been substantially shaped by the UK itself,14 which undermines the argument for a significant shift of paradigm. Besides, the application of EU competition laws is fairly uncontroversial in the UK, as opposed to the Common Agricultural Policy or the Common Fisheries Policy, on which taking back control was seen as an important Brexit goal. Thus, it is clear that Brexit should not have a meaningful impact on existing substantive rules governing merger, state aid and antitrust, which for the most part are planned to be entirely transposed into UK national law. But beyond that, new legislative arrangements must be found in order to protect the effective enforcement of competition law. It is notably in the interest of the EU, which wants to continue to ensure that EU and UK businesses will compete fairly on a “level playing field”15 in the context of the Free-Trade Agreement (“FTA”) to be negotiated during the transition period, if a deal is finally secured. Following a brief recap of UK and EU pre-Brexit competition regime, this paper will first address the short-term implications of Brexit for competition law and procedures as provided by the DWA during the transition period and under the “backstop” mechanism (I). Overall, the deal attempts to maintain a regulatory status-quo until an FTA is agreed upon. As a result, EU competition disciplines as well as ECJ jurisdiction will continue to apply for two years at least. The deal also provides for key transitional arrangements and work-sharing mechanisms for ongoing and future competition procedures, as to ensure smooth jurisdictional articulation and avoid post-Brexit parallel investigations and enforcement gap. Yet, chances are that the draft will never make it into force, resulting in the UK leaving the EU on 29 March 2019 without any transitional arrangements (II). The UK has drafted regulations and published measures and guidance to be applied absent of a deal. Consistent with May’s strategy and UK businesses’ interest to keep close ties with the EU, The European Union Withdrawal Act 2018 (“EUWA”) incorporates most of pre-Brexit EU competition Rules into domestic law. Also, pre-Brexit ECJ related interpretations would continue to be binding on domestic courts to a certain extent. However, effective enforcement of the EU and UK competition laws would be immediately threatened in the absence any cooperation agreement between EU and UK competition agencies. Parallel proceedings and investigations of mergers and antitrust infringement cases could lead to inconsistent decisions, create uncertainty and supplementary costs for businesses, and weaken public and private enforcement of competition rules. In any event, the alignment of UK and EU competition and State aid laws is likely to be required in the long run by the EU as a precondition for agreeing on an ambitious economic partnership, in order to guarantee that UK and EU business compete on a level playing field for open and fair competition (III). The FTA or a separate bilateral agreement could also provide for cooperation procedures limiting Brexit adverse effects on public and private enforcement of competition law.
Current competition provisions in EU and UK law - a short introduction a) Antitrust Presently, antitrust is regulated in the UK both by EU primary and secondary legislation, as well as by UK national law. Both are substantially identical.16 At the European level Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) prohibits vertical and horizontal concerted actions agreed amongst two or more independent market operators which could result in a restriction of competition;17 whereas Article 102 of the TFEU prohibits companies benefiting of a dominant position on the market to abuse it.18 At the national level, antitrust law is organized by Chapters I and II of the Competition Act enacted in 1998 (“CA98”) as well as by the disposition on criminal cartels under section 188 of the Enterprise Act 2002 (“EA02”). Regulation 1/2003 of 16 December 2002 defines in its Article 3 the relationship between EU Member State’s national law on antitrust and the EU law. Thus, when the competent authorities or jurisdictions of a Member States apply national dispositions to agreements or concerted practices between corporations which could hinder competition between Member States under Article 101 TFEU, they have also to apply Article 101 TFEU. In the same spirit when they apply national law to a case of abuse of dominant position prohibited by Article 102 TFEU they have to apply both sets of laws.19 Finally when UK national courts deal with antitrust cases they are required by Section 60.2 of CA98 to interpret Chapter I and II of the same Act consistently with the jurisprudence of the ECJ, whereas Section 60.3 requires for the national court to have regard to the decisions issued by the EC on the same subject. For the purpose of reducing the costs of antitrust law supervision the EC has adopted several Block Exemption regulations which authorise and validate ex ante a certain number of agreements falling under their scope. Currently Section 10, Chapter I of the CA98 on parallel exemptions introduces these exemptions created by the EU regulations into the national law.20 Regulation 1/2003 also organizes the distribution of competence between the Competition and Market Authority (“CMA”), and the EC. There are no rigid rules allocating the review of certain cases to the CMA and of some others to the EC.21 Usually the CMA would take care of the cases in which the breach of UK national and EU antitrust laws affects exclusively its own market, whereas the EC would take care of the bigger cases in which the markets of several Member States are affected. When the CMA applies Articles 101 and 102 TFEU it has to inform the EC before or soon after having initiated the first step of its investigation.22 If the EC considers that it is best suited to treat the said case, after a discussion with the CMA, the case can be transferred under its jurisdiction. Like most EU Member States, the UK has strived to ease private enforcement of EC’s decisions on breaches of Articles 101 and 102 TFEU. It has done so through the adoption of Sections 47A and 58A of the CA98. Section 47A enabled “a person who has suffered loss or damage [to] make in civil proceedings brought in any part of the United Kingdom in respect of an infringement decision or an alleged infringement of” Chapters I and II of CA98, Articles 101.1 102 TFEU.23 Since March 2017, Section 47A has been replaced by Section 47F and Schedule 8 of CA98 as a consequence of the transposition of Directive 2014/104/EU.24 The UK already met some essential requirements set by this directive, but some significant changes were still introduced by the latter especially in domain of cooperation and recognition of decisions within the EU. The most important of them being the introduction of a rebuttable presumption of loss caused by cartels.25 Another significant evolution is the fact that from the moment of the introduction of Section 47F, decisions given by competition authorities of other Member States constitute prima facie evidence of an infringement of competition law in front of the UK courts. Section 58A of CA98 established and continues to establish the binding character of the CMA, EC and of the ECJ decisions on antitrust matters once they have become final. Finally, UK courts are competent to review CMA antitrust decisions, and when they have doubts concerning the interpretation of the related EU law, they can ask the ECJ for clarification through preliminary rulings. At the EU level the ECJ has the power to review the decisions taken by the CMA and the EC. b) Mergers In the UK, mergers are regulated by the EU Merger Regulation (“EUMR”)26 when they are of a “Community dimension”, and by the UK Enterprise Act of 2002 (“EA02”) in any other configuration. The EUMR defines a Community dimension merger as a concentration reaching a certain amount of combined aggregate turnover worldwide and a certain amount of Community wide turnover which is evenly distributed amongst the Member States. Typically, the mergers which impact several EU Member States fall under the scope of the EUMR, whereas the mergers having mostly a national impact fall under the UK EA02.27 The EC takes in charge mergers submitted to the review of the EU law whereas at national level the same task is taken care of by the CMA.28 Unlike in antitrust matters the CMA is not bound by ECJ jurisprudence or by the EC’s decisions in assessing the merger cases which fall under its scope.29 The major difference between the EUMR and the UK EA02 is that the EUMR imposes a mandatory notification of the merger when the thresholds laid out in the Regulation are reached by the entities involved. It enables the EC to proceed to an ex ante verification of the compatibility of the merger to EU law.30 The UK prefers a voluntary notification and practices an ex post validation.31 However these different ways of functioning do not hinder the efficiency of the “one-stop-shop” system in which these two entities take part. It consists in the fact that the EC and the CMA are able to refer each other cases for review depending on their size and nature. Thus, the EC has exclusive jurisdiction under the EUMR to assess the conformity of a merger to EU law and will also treat the effects of such merger on the UK domestic market. Once the transaction is validated directly or on the condition of the implementation of certain requirements, the entities which take part in the said merger don’t need to undergo an identical process with the CMA. Similarly, if a merger does not reach the thresholds set by the EC to qualify as a Community wide merger, it is consequently examined by the CMA, and its decision does not need to be backed by the EC to be final and binding.32 However, Article 21 EUMR allows Member States to take measures aimed at protecting legitimate interests which are not related to competition and susceptible to apply in the evaluation of mergers which fall under the scope of the EUMR. As a result, financial stability, public security and plurality of the media may be taken into account.33 The measures made can be adopted without prior validation of the EC, even if it distorts competition, under the condition that it is proportionate and non-discriminatory.34 Other types of arguments have to be submitted to the scrutiny of the EC for an evaluation along the lines of the principles of Union law. In a large majority of cases, the EC does not allow Member States to intervene in merger cases placed under its authority on other grounds than the three set in Article 21.35 c) State aid To this date, just as for the other pillars of UK’s competition law described above, State aid has been shaped by the EU competition law laid down in the TFEU. The specificity of State aid being that currently the UK has no national dispositions regulating State aid. The only legislation applying to UK State aid issues is European, and contained in Articles 107 to 109 TFEU. These articles prohibit Members States to provide State aid in order to favour the development of companies incorporated on their national soil. They also provide some exceptions which enable for instance a Member State to give a financial impulse to an economically disadvantaged region by subsidising its companies. Up until today, every time the UK wanted to provide State aid, it had to notify the EC, which in turn had to assess whether this particular State aid presented the risk of “distort[ing] or threaten[ed] to distort competition by favouring certain undertakings or the production of certain goods”.36 Because the EC was receiving many notifications on this matter, it decided to put in place in 2008 a General Block Exemption Regulation (“GBER”). It is a list of State aids deemed to be compatible with the EU legislation on competition and which do not require a prior notification.37 For the same purpose the EC issued a set of guidelines and the de minimis Regulation, which exempts State aid the amount of which is below a certain threshold from notification.38 The ECJ has jurisdiction to legally assess the decisions and the fines that the EC issues in relation with State aid, but not of the CMA as the later has not authority whatsoever on State aid. Preliminary rulings are not used in the field of State aids for the same reason.
I) Short-term implications of Brexit for competition law and procedures as provided by the Draft Withdrawal Agreement - Turn and face the strange On Thursday 14 November 2018, the DWA on the withdrawal of the UK from the EU and the European Atomic Energy Community was agreed by UK and EU negotiators. This agreement crucially provides for a transition period aimed at ensuring a smooth exit of the UK from the Union and avoiding a regulatory “cliff-edge”39 for businesses. During transition, the UK will not participate in the governance of the EU, but EU law will remain applicable in the UK until a new relationship is negotiated between the Parties. The UK will thus continue to comply with certain EU laws, including competition laws. Any breach will continue to fall under the jurisdiction and scrutiny of the EC and of the ECJ40 for a period which will start at UK’s official exit date on 29 March 2019 and end on the 31st of December 2020.41 It is important to note that Michel Barnier - chief Brexit negotiator for the EU - is prepared to extend this period until the end of 2022, should the UK make a specific demand in that sense pursuant Article 132 of the DWA. For now in the UK this proposition was welcomed with hostility by the UK MPs because of the supplementary costs that it would imply.42 If the deal is adopted, EU laws including competition laws will continue to apply as usual for a maximum of 4 years as of 29 March 2019: the DWA thus provides predictability and legal certainty called for by businesses on the rules to be complied with until a new economic partnership is agreed on. Most importantly, it sets out key transitional and jurisdictional arrangements on ongoing competition law procedures, which ensure that ongoing and future investigations can run smoothly after the UK leaves the EU.43 A- No Surprises during the transition period a) Antitrust EC antitrust investigations typically last several years, even before appeals are taken into account. It means that investigations concerning conduct affecting UK markets will have been started well before Brexit takes effect and some will still be pending at the point of exit. The transition period is therefore particularly useful to determine which competition authority will have jurisdiction and to ensure a clear allocation of cases between the EC and the CMA. The DWA provides that “institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures which were initiated before the end of the transition period concerning: [...] (b) compliance with Union law relating to competition in the UK”.44 Thus the EC will be entitled to initiate new antitrust proceedings during the transition period. This measure gives time to the UK to progressively adapt its legislative framework to the separation and its future independence towards the EU. When should it be considered that the EC has initiated antitrust proceedings? Several answers could have been envisaged: at a very early stage when the EC starts to investigate informally on a case, or much later when a Statement of Objection (“SO”) detailing the Commission's concerns is sent to the companies concerned. The DWA settles this issue and considers that for antitrust matters the moment when a procedure has been initiated is “the moment at which the European EC has decided to initiate proceedings in accordance with Article 2(1) of EC Regulation (EC) No 773/2004”.45 The EC’s decision to initiate proceedings may be issued after it conducted investigative actions, but no later than the date on which its preliminary assessment of the case or it’s SO is released to involved undertakings. In principle, the EC will continue to “monitor and enforce commitments given or remedies imposed in, or in relation to, the United Kingdom” in antitrust matters. However, the DWA also allows, upon an agreement between the EC and the CMA, for a transfer of this function to the CMA.46 b) Mergers Just as for antitrust cases, the EC will be entitled to initiate new merger proceedings until the end of the transition period.47 In the specific context of mergers, the DWA sets three cumulative conditions for the determination of the moment when a procedure is deemed to be initiated. First, “a concentration of Union dimension has been notified to the European Commission”. Second, no Member States “competent to examine the concentration under their national competition law hav[e] expressed [their] disagreement” to refer the case to the EC. Third, “the European Commission has decided or is deemed to have decided to examine the concentration”.48 Approximately, more than one month can pass between the notification of the merger to the EC and its decision to examine the merger. In a similar way as for antitrust matters, even though the EC will continue to be in charge of monitoring merger related activities within the UK, the CMA could request the transfer of this function.49 c) State aid Regarding State aid, transitional measures also provide that EC authority to review UK subsidies will continue during the transition period, with the procedure deemed to have been commenced when the case has been allocated a number.50 Yet, the EC will be able to initiate State aid procedures for a much longer period than the other two pillars of competition law. Indeed, the EC will be competent to initiate new procedures as far as “4 years after the end of the transition period” for aid granted by the UK before the end of the transition period, so nearly 6 years in total.51 One might wonder why the EC wants to maintain control over State aid related procedures longer than over other areas of UK competition law. It could be explained by the fact that EU and UK leaders are currently considering the possibility of a very bold FTA envisioning a tax free policy on the exchanged goods and very slim tariffs on services.52 In this context, the EC and Union Members probably fear that the UK, no longer constrained by EU State aid legislation, would grant generous subsidies to companies incorporated on its territory, which would gain unfair competition advantages on EU-based companies. This is probably why the EU has made clear that it would only enter into such an inclusive FTA on the condition that the UK tightly regulates its State aid regime. By extending control over UK State aid beyond the transition period, it is possible that the EU tries to set the tone on the subject for the future FTA negotiations, in line with the European Council guidelines for Brexit negotiations.53 B- Under pressure of the “backstop” mechanism If an agreement on the future EU-UK relationship is not applicable by the end of the transition period (31 December 2020), two courses of action are available. First, the UK may ask for an extension of the transition period,54 so that Parties will have more time to agree on their future economic partnership. Alternatively, the backstop mechanism contained in the Protocol on Ireland and Northern Ireland (“Backstop Protocol”) may come into force and remain applicable until the future FTA is negotiated. This solution was designed to avoid a hard border between Ireland and Northern Ireland once the UK is out of the EU, with the view to protect the 1998 Good Friday peace agreement55 and the island economy.
The insurance policy was very much criticized by both camps, but as simply put by UK Prime Minister, “there is no deal that comes without a backstop, and without a backstop there is no deal”.56 Brexiteers are particularly unhappy because the backstop keeps the whole UK in a single customs territory with the EU57 for an arguably indefinite period, as the UK cannot leave this agreement without EU’s consent.58 In addition, the UK will still abide by most of the EU’s rules. EU Members pushed for alignment as to ensure that there will be no regulatory dumping. UK and EU businesses shall continue to compete on a level playing field, “given the establishment of the single customs territory with no tariffs, quotas and checks on rules of origin between the EU and the UK”.59
In this view, Annex 4 to the Backstop Protocol binds the UK to substantive rules on competition and State aid “based on international and EU standards”.60 It is worth noting that these competition rules can be modified over time by a UK-EU Joint Committee “in order to lay down higher standards for these level playing field conditions”.61 a) Antitrust and mergers Substantive rules on antitrust and mergers have been agreed on and set out in Articles 17 to 24 of Annex 4 to the Backstop Protocol. They are based on the principle of non-regression from the current levels of protection under international and EU standards. In brief, the Parties agreed that certain agreements between undertakings,62 the abuse of dominance,63 and certain concentrations of undertaking64 distorting or restricting competition must be prohibited “in so far as they affect trade between the Union and the United Kingdom”.65 Overall, these provisions ensure that the UK will continue to abide by the material rules contained in Articles 101 and 102 TFEU and EUMR as before Brexit. The Backstop Protocol clearly imposes a duty of non-regression and alignment of UK competition law standards, stating that “in particular, the United Kingdom shall adopt or maintain a competition law which addresses in an effective manner, all of the practises set out in Articles 17 to 20”.66 Furthermore, UK courts will still have to apply these standards “using as sources of interpretation the criteria arising from the application of Articles 101, 102 and 106 TFEU as well as all relevant acts adopted by the institutions bodies, offices or agencies of the Union, including frameworks, guidelines, notices and other acts applicable in the Union”.67 In addition to this alignment of regulations on merger and antitrust, the Backstop Protocol imposes a duty to enforce effectively these rules in their respective territory. To this end, the UK must ensure that administrative and judicial proceedings are available to permit effective and timely actions against the violations of competition rules, and provide for effective remedies.68 The UK considers in this regard that the CMA “has a proven record of effective competition enforcement,” and more broadly that its legal system already “has the key components the EU expects: it has a robust framework for merger control, and prohibits abuse of a dominant position and anti-competitive agreements. The UK’s markets regime contains significant powers to investigate potential market failure and prevent, remedy or mitigate any adverse effects on competition”.69 However, and as discussed in the second part of this paper, effective enforcement of UK and EU competition laws risks to face multiple problems such as jurisdictional overlaps and gaps due to uncoordinated unilateral enforcement by the CMA and the EC. This challenge could be solved in the long-term by enhanced cooperation between competition authorities and dynamic adjustments of competition laws. As suggested by the Backstop Protocol, the EU and the UK “may enter into a separate agreement or agree on a separate framework on cooperation between the competition authorities”.70 b) State aid As it was mentioned earlier, the UK has no legislation concerning State aid. Should the UK be compelled to apply the Backstop Protocol following the two-year transitional period, it will be urgent to establish a full domestic legal framework able to effectively regulate this issue. Indeed, the Backstop requires for the UK to establish an independent authority in order to take over EC’s responsibilities over State aid in the UK.71 According to the announcements made by the UK Government up until today, the CMA will play the part of this independent authority.72 UK Government argued it is perfectly suited for such an function thanks to its legal and economic expertise, its considerable experience on analysing the impact of competition law and in conducting investigations and finally because its independence has been internationally recognized.73 However, enforcing State aid is also recognized as a big challenge by the CMA, which is not used to make “decisions on questions that are often politically charged and contentious”.74 This might be why the Backstop Protocol imposes tight cooperation between the CMA and the EC in the application of the EU State aid related legislation75, that could almost be seen as a guardianship. It is telling that the CMA will be required to consult the EC on all draft decisions it intends to make regarding UK subsidies and to “take utmost account of [its] opinion before adopting the decision”.76 UK courts will have to ensure the enforcement of CMA’s decisions in relation to State aid, but again, the EC will have the right to intervene as a party in the proceedings.77 In addition, the EU may challenge UK’s implementation of State aid if it “threatens to seriously undermine the equal conditions of competition between the parts of the single customs territory”78 before a Joint Committee co-chaired by the UK and the EU.79 In the event that a compromise is not reached, the EU is even entitled to apply interim remedial measures.80 In parallel the issue can be submitted to an arbitration panel.81 Once again, it can be inferred from all these provisions that State aid is clearly a politically sensitive issue for the EU, and that it has strived in the deal negotiations to lock as much as possible UK’s policy freedom on this matter. Let’s remind that the backstop solution described above was designed as a last-resort solution and that neither the UK nor the EU wishes to ever apply it. It is highly probable that the UK will at least do everything that is within its power to shorten its implementation if it ever comes into effect. It is worth mentioning that all the provisions on competition provided in the Backstop Protocol are likely to serve as a baseline for the negotiation of the future FTA level playing field requirements,82 as developed in part III of this paper. The precedents, in other words, may have lasting effect.
II) No deal scenario: You can’t always get what you want The DWA is undeniably a big step forward, but the deal has still to be backed by a vote of the British Parliament on 11 December 2018. As recalled in the introduction, Prime Minister Theresa May is stuck in the middle of Brexiteers and Pro-Europeans visions of Brexit. More than 90 Tory MPs have pledged publicly to reject the deal,83 while The Labour Party has announced it would not vote for the deal either. In addition, EU leaders affirmed that the DWA has been negotiated on a “take it or leave it” basis, which means that there is no room for any redrafting or renegotiation.84 On the other hand, this political turmoil could be overcome by the fear of the dramatic economic consequences forecasted should the UK fail to agree on a deal with the EU before 29 March 2019. The Bank of England warned on 28 November 2018 that such a disorderly exit could trigger a deep and damaging recession with worse consequences for the UK economy than the 2008 crisis.85 In the case of a no deal scenario, all primary and secondary EU law will cease to apply to the United Kingdom and the effects of the withdrawal would materialise as of the date of the withdrawal,86 including on competition and State aid rules. UK Government published highly-anticipated technical guidance on merger review and anti-competitive activity on 13 September 2018 applicable in this scenario. It can already be underlined that the UK does not plan for substantial changes to its competition regime: the main goal is in fact to remain aligned as far as possible to EU competition law as to provide legal certainty for businesses, in ongoing or future competition cases. a) Antitrust The impact of Brexit on UK antitrust laws has been clarified by the UK Government this year. On June 2018, the UK adopted the EUWA. This legislation ensures that laws and regulations made over the past 40 years while the UK was a member of the EU will continue to apply after Brexit by means of statutory instruments.87 In doing this, the Act creates a new category of UK law: EU retained law. As a result, EC current set of Block Exemptions Regulations on antitrust should be incorporated into domestic law88 and parallelly applied by the EC and the CMA. This copy-paste of existing EU law ensures the substantive alignment of rules related to antitrust even in a no deal scenario. In addition, Chapter I and II of the UK Competition Act 1998 already mirror Article 101 and 102 TFEU89. Overall, UK competition law dealing with antitrust infringements will remain aligned on EU current framework. Yet, divergence could result from UK courts’ interpretation of these antitrust rules and could lead to inconsistent decisions on the same infringements. Under a no-deal scenario, draft statutory amendments to competition laws (“Competition SI”)90 confirm that Section 60 of CA98 would be replaced by Section 60A that would be applicable on the date of Brexit irrespective of whether the facts of the case arose before or after 29 March 2019.91 While this new provisions puts an end to UK court’s duty to follow ECJ’s case law on antitrust matters, it also limits the possibility to depart from pre-exit EU competition case law. UK courts would continue to be bound by an obligation to ensure no inconsistency with pre-exit EU case law, unless it is “appropriate in the light of specified circumstances”. One might think that it could allow British courts, not necessarily to diverge, but to align dynamically with the potential evolutions of ECJ’s interpretations. In this regard, the EUWA specifies that UK courts “may have regard to anything done on or after exit day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”.92 Once again, the intention seems to remain closely in touch with EU competition laws, even in their interpretation, as to ensure maximal legal predictability even in the event of an abrupt no deal. Yet, effective enforcement of these antitrust rules raises more difficulties post-Brexit without any agreement. The CMA would take on the role of enforcement and supervision of antitrust laws for the whole of the UK, including for complex multi-jurisdictional cartel cases which would previously have been dealt with by the EC. It is likely that public and private enforcement of UK and EU antitrust laws will be weaker as a result of a lack of coordination and cooperation between EU and UK competition agencies investigating in parallel on the same cartel cases. The CMA after the exit date will no longer be a member of the European Competition Network (“ECN”) as a result of the revocation of Regulation 1/200393 and the Network Notice.94 This close cooperation framework between EU agencies is particularly crucial in antitrust cases, because it allows for information sharing on ongoing cases, including confidential information, without the need of a waiver from the parties involved in the cartel.95 Out of the ECN, the CMA will face a double challenge: investigating more complex cases while having no access to information collected by National Competition Authorities (“NCA”). Moreover, it is unsure whether the CMA will be provided enough resources to deal with this extra case-load resulting from the revocation of Regulation 1/2003 under the EUWA. Cooperation is also crucial for the effective enforcement of EU competition law. It is worth remembering that EU antitrust laws have an extraterritorial scope of application under the “effects doctrine”. It means that the EC would still have jurisdiction on anticompetitive practices committed by UK businesses provided that they have foreseeable, immediate and substantial effect on the Single Market.96 However, Regulation 1/2003 allowing the EC to conduct inspections, or to request from NCAs to conduct inspections in firms registered within their jurisdiction97 would no longer apply to the UK. Cross-border cartels involving multinationals that operate in numerous EU countries especially require fast and coordinated “dawn raids” to collect critical evidence on the alleged infringements. After Brexit, the EC will no longer be able to rely on British authorities to conduct inspections of business and private premises located in the UK suspected to be involved in anti-competitive agreements. Lack of cooperation between UK and EU courts on competition cases could also have serious impact on private antitrust enforcement, and therefore reduce the deterrent effect of competition law on businesses. Competition SI98 confirms the revocation of sections 58A et 47F stating that EC infringements findings of articles 101 and 102 TFEU are binding on UK courts on the issue of liability99. Therefore, “decisions of the European Commission reached after exit day are no longer binding on UK courts in follow-on claims for damages”.100 Section 60.3 of CA98 under which UK courts must have regard to any EC decision, including decisions as to “civil liability of an undertaking for harm caused by its infringement of Community law” will also be entirely repealed. As a result, UK consumers and business will only be able to pursue private follow-on damages claims based on CMA decisions under UK competition law.101 By contrast, antitrust infringements to EU competition law investigated and decided by the EC after Brexit will not serve as a legal basis before UK courts. UK claimants harmed by infringements to EU competition law will have to bring a stand-alone claim for damages before UK courts, with the burden to prove a breach of competition law and the damage they have suffered as a result. One might think that private actions could be pursued before EU courts after Brexit so that UK claimants would beneficiate from binding EC infringement decisions as a legal basis and from the Directive 2014/104/EU.102 However, Brussels I (Recast) providing for mutual recognition and enforcement of EU judgements will no longer apply once the UK ceases to be a Member State. Most worryingly, the DWA does not address the issue of civil judicial cooperation. In the absence of a bilateral agreement on this matter agreed between the EU and the UK during the transitional period, enforcement of EU judgements in the UK and vice versa will be costlier and more time-consuming as each national exequatur rules would have to apply. It could furthermore discourage businesses and consumers to bring private actions following cross-border antitrust infringements with a UK component. b) Merger Absent of a Brexit deal, businesses will not be able to rely on the abovementioned transitional provisions for ongoing merger cases set out by the DWA. The UK Government warns that in “a ‘no deal’ scenario, businesses should be aware that it is possible that there will be no agreement on jurisdiction over live EU merger and antitrust cases to the extent that they address effects on UK market”.103 It means that businesses whose concentration is currently reviewed by the EC under EUMR would potentially have to parallelly notify their merger to the CMA if the operation may affect UK markets and meet UK national thresholds for notification. At least, the UK Government announced that the UK would have no jurisdiction under Section 23 of EA02 over concentrations on which the EC has issued a decision on or before 29 March 2019, unless subsequently annulled.104 Similarly, once the UK leaves the EU, it will lose the benefit of the EUMR one-stop-shop which was useful to limit the risk of divergent outcomes and the costs of multiple notifications for businesses. After Brexit, these complex multijurisdictional mergers will be notifiable both to the EC and the CMA as long as the operation reaches UK and EU respective merger thresholds. It would increase the risk of parallel reviews and contradictory decisions on commitments to be implemented by businesses in order to get the authorization from both jurisdictions to pursue with the merger. Besides, a significant number of mergers reviewed by the EC could cease to have an EU dimension after Brexit because the UK turnover of the parties will be stripped from EC threshold calculations.105 As for antitrust cases, the CMA’s workload would be dangerously increased as a result of Brexit, and it is doubtful whether it will be able to properly investigate on all new cases falling under its jurisdiction. Some estimates suggest that an additional 30 to 50 transactions annually would fall for review by the CMA.106 It is true that unlike most EU Member States and the EC, the UK has adopted voluntary notice scheme for mergers.107 It means that businesses may complete the concentration without a green light from the CMA. In any case, the CMA intervenes ex post to monitor un-notified merger case.108 Arguably, voluntary notification system requires less financial resources than mandatory notification since the CMA transfers the burden of assessing the potential competition of the merger on the UK markets to businesses. As a result, CMA only intervenes on mergers that are more susceptible to effectively restrict fair competition within the UK market. The UK Government announced that the voluntary regime will continue to apply after Brexit,109 and the CMA underlined that it would especially monitor un-notified cases “falling under the jurisdiction of the European EC over which the UK may obtain jurisdiction over the UK aspects of the merger after 29 March 2019”.110 Even if the CMA claims that there will be no change in this regard, it still urges businesses which merger is notifiable both in the EU and the UK and “which transaction may raise potential competition concerns in the UK” to “begin pre-notification discussions with the CMA”.111 But, would it look like a lot like mandatory notification in the end? Besides, it is very possible that businesses engaged in a merger of EU dimension post-Brexit will notify their transaction to the CMA just in case, in order to avoid the risk of ex post investigations. To the contrary, it has been argued112 that the UK’s voluntary scheme would disincentivize businesses to proactively notify their merger to the CMA for mergers requiring dual notification. Indeed, the parallel jurisdictions of the CMA and the EC to investigate such cases work on different time frames. Businesses will have in any case the duty to comply with EUMR mandatory notification regime. Therefore, they could wait to contact the CMA only after the merger has been cleared by the EC or after commitments have been agreed with the EC.113 In this scenario, the CMA authority is undermined since “[p]arties may judge it to be legally, procedurally and reputationally difficult for the CMA to seek to unwind a transaction that has completed subject to remedies by the EC”.114 Alternatively and for the same reasons, companies could choose not to notify at all their operation to the CMA, even if specific competition issues arise from the concentration on the UK market. In that event, CMA’s ex post monitoring work of un-notified merger cases is likely to skyrocket after the Brexit and impose considerable workload on the agency. Consequently, some transactions allowed under EUMR but requiring UK specific commitments may not be detected by the CMA because of suboptimal cooperation from businesses. More generally, parallel investigations on the same cases almost inevitably results in divergence in the assessment of concentration cases, even more in the absence of a cooperation framework between agencies. The CMA argues that “the many practical similarities and synergies between the EU and UK merger review processes” might “mitigate the extent to which businesses must carry out significantly different work for the two investigations”.115 It is generally considered that “the CMA has increasingly aligned its approach with the EC in recent years, and now requires a significant amount of data and documentation at the outset of a merger investigation”.116 Furthermore, the CMA and the EC apply the same substantive test to mergers under their jurisdiction. Both tests rely on “economic-based and analytical approaches”,117 which reduce the likelihood of diverging decisions on the same case. It has been suggested that the UK criteria for merger scrutiny could change after Brexit, as the UK Government would be free to reinforce the public interest test in merger control provided under Section 58 of EA02.118 The aim would be to protect UK’s economic interests and businesses, particularly in relation to foreign takeovers.119 However, this opportunity for substantive divergence, evoked for a while by the UK Government,120 appears to have been abandoned since. As of now, the UK Government does not plan to move away from a regime driven by economic analysis.121 Just as for antitrust regime, Competition SI confirms that EA02 and especially Section 58122 will not be substantially amended after exit date, and that the UK will “preserve the existing legislative framework as far as possible and only amendments that are necessary to enact EU exit”.123 c) State aid The debates currently going on in the Commons testify to the fact that the adoption of the DWA by the UK Parliament is not yet a given, even though Michel Barnier has affirmed that the deal obtained on the 14 November 2018 is the best that can ever be and that the EU will not enter into another round of negotiations. If the Parliament rejects the DWA in December 2018 and the EU refuses to undertake new negotiations, the UK will be compelled to leave the EU without a transition period. In that context will State aid legislation be very different? It appears that in the urgency implied by a no deal situation, the UK government will not have the time to elaborate original and brand-new State aid provisions. The UK will probably have to transpose very quickly EU State aid provisions into its national law so that national business isn’t disturbed and confronted to uncertainty. The WTO Agreement on Subsidies Countervailing Measures (“ASCM”) won’t be sufficient to regulate UK’s market on its own, as it does not provide national State aid provisions at all. Therefore, they can only be considered as a very temporary backup solution.124 Then the fact that today the UK and the EU have not found a cooperative solution to proceed through their divorce does absolutely not mean that there will nevermore be cooperation between those two entities as the EU represents 48% of UK’s exports.125 Even after a hard Brexit, there will probably come a time when the UK and the EU will consider an inclusive FTA because of the ties which already exist between their two markets and because of their geographic proximity. Pressures for a more interventionist State which would subsidise its companies will not further the UK into becoming a powerful trading nation on the global level. The Prime Minister has assured that the Government will not aim at beating other countries' industries by subsidising its own.126 Therefore, taking into account UK’s liberal economic culture, it is almost sure that the government will not adopt a nationalist State aid policy even in a situation of hard Brexit. This element coming on top of a necessity to continue to commercially cooperate with the EU. For its part, the EU has taken contingency measures based on State aid aimed at limiting disruptive effects on EU businesses in case of a no deal, that can be found in the Rescue and Restructuring Guidelines. One of the short-term solutions which will be put in place will offer “temporary restructuring support schemes for SMEs, which could be useful to address their liquidity problems caused by Brexit”.127 III) Long-term implications of Brexit on EU and UK Competition law in the context of FTA negotiations - With or without you? On 22 November 2018, the EU and the UK published a draft Political Declaration (“PD”) setting out the framework for a future relationship between the two parties. It is worth remembering that this 26-page document is not legally binding and may or may not be complied with in future talks. Still, it is the most up-to-date document reflecting Parties’ positions on how the UK and EU might work together beyond the transitional period, and in what areas.128 The PD repeatedly emphasizes that any ambitious future trade deal with the UK, including a “free trade area” must be “underpinned by provisions ensuring a level playing field for open and fair competition”.129 This way, EU Members underline that a country leaving the EU cannot benefit from continued access to the Single Market, while having a competitive advantage over EU members once the membership is terminated.130 It follows that the future FTA should include “provisions to ensure that should cover state aid, competition, social and employment standards, [...] building on the level playing field arrangements provided for in the Withdrawal Agreement and commensurate with the overall economic relationship”.131 Likewise, European Competition Commissioner Margrethe Vestager recently reasserted that as a result of the comprehensive trade deal to be negotiated, “the UK economy will be integrated with other European businesses and this is why the level playing field is so important”.132 She reportedly affirmed that EU Member States would remain very vigilant that Britain play by the same rules as Europe on business after Brexit and said that the UK would still be “Europe one way or another”.133 France in particular has been reported to ask for more clarity on the so-called level playing field standard134 and for tough safeguards on UK compliance to EU policies post-Brexit, including competition, which would go further than those included in the “backstop” plan.135 This approach holding rights and responsibilities in balance had been anticipated by the UK’s White Paper published on July 2018 dealing with “the future relationship between the United Kingdom and the European Union” (“White Paper”). It confirmed UK’s intention to sign a very ambitious trade deal with “reciprocal commitments that go beyond those usually made in FTAs [...] to support the breadth and depth of the future UK-EU economic partnership”.136 The paper shows UK Government’s plan to align in the long-run with a number of EU policies in that view, including competition, in order to secure the most preferential FTA possible. As noted in the White Paper, “a relationship this deep will need to be supported by provisions giving both sides confidence that the trade it facilitates will be both open and fair. So the Government is proposing reciprocal commitments that would ensure UK businesses to continue to carry on competing fairly in EU markets and EU businesses operating in the UK could do the same”.137 However, as of now, the PD remains vague on how this “level playing field” will be enforced and how far the alignment of UK and EU rules in the area of competition and State aid should go. It is unclear whether it only involves non-regression of the current framework or dynamic alignment. The PD indicates that the UK and the EU would be “separate markets and distinct legal orders”,138 which means that May’s promise that the future FTA would ensure “frictionless trade” is compromised. As a result, British access to European markets will depend on the UK respecting EU standards, including in competition. The PD provides that in this field, “these commitments should combine appropriate and relevant Union and international standards, adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement as part of the future relationship”.139 In the area of competition law, the UK has already committed to remain closely tied by EU competition regime standards. As considered by the UK in the White Paper, it has “much to gain from maintaining disciplines on subsidies and anti-competitive practices”.140 a) Antitrust In light of these potential problems, it appears that the mutual interest of the EU and the UK is to agree on cooperation instruments on the matter of competition law enforcement. As to the form of such agreement, it could either be enacted in formal treaties, in a section of the future trade deal or in a separate bilateral agreement such as the EU-Swiss Cooperation Agreement on Competition Matters.141 It would ensure that competition decisions rendered by the UK, NCAs or the EC are compatible and would reduce the risk of cartel enforcement gaps and overlaps. The UK is also prepared to sign cooperation agreements “at an agency to agency level or undertaken informally as long as this is allowed in the national laws of the States concerned”.142 However, it is obvious that a bilateral agreement which involves all EU competition agencies would be far more convenient and efficient than individual relationships between the CMA and each NCA. The Backstop Protocol keeps all options open, by stating that “the Union and the United Kingdom, or the competition authorities of the Union and the United Kingdom may enter into a separate agreement or agree a separate framework on cooperation between the competition authorities”.143 As to the content of a possible EU-UK cooperation agreement, the intention of the UK Government to “build on established cooperative arrangements, such as those found in existing FTAs, to manage parallel merger and antitrust investigations”.144 The PD does not address the issue of cooperation per se but generally indicates that Parties will build on what was agreed in the DWA.145 In this regard, Article 23 of the Backstop Protocol acknowledges that it is in the common interest of both the EU and the UK to “promote cooperation with regard to competition policy development and the investigation of antitrust and merger cases”.146 However, there are very few details on the conditions under which this cooperation would effectively work. The Backstop Protocol is very carefully drafted in this regard an only provides that Parties will coordinate their enforcement activities relating to the same or related cases “where this is possible and appropriate”147 and “may exchange information” in this view. It is therefore very uncertain that UK and EU agencies will be able to exchange confidential information in the future without a waiver from cartel members involved. Yet, as previously explained and as remarked by the UK Government, a cooperation agreement “is more important for antitrust investigations than in merger cases, as undertakings subject to the former are unlikely to facilitate information sharing through confidentiality waivers”.148 Also, the language of Article 23.2 appears to be non-binding on competition authorities. It is questionable whether this provision sets out real duties upon the EU and the UK, because cooperation will depend solely on the interpretation by the Parties of the cases where coordination of enforcement activities “is possible and appropriate”. It is therefore difficult to determine to what extent UK’s wish to include “provisions on sharing confidential information and working together on live cases” will be satisfied.149 However, it is our understanding that the UK and EU will finally come up with an ambitious cooperation agreement during the transition period, should the DWA be ratified by the British Parliament. The CMA crucially needs it due to its limited enforcement resources, and the EC as well if it does not want to undermine the effectivity and deterrence of EU competition law. Moreover, cooperation would be greatly facilitated by the substantive alignment of UK and EU legislations on antitrust as a result of the concept of “EU retained law” set out by the EUWA. Of course, in any case, the UK will have less access to information on ongoing cases than NCAs as part of the ECN under Regulation 1/2003 that applies also to EEA members such as Norway. It is now clear that the UK refuses to join the EEA because this path would not be consistent with the Brexit vote imperative to “take back control” on British laws and immigration. As members of the Single Market, EEA members are notably required to comply with the EU four freedoms,150 and with EU directives and regulations without a say on their shaping,151 which are then enforced by supranational authorities. The PD provides that in the context of a future FTA, “[p]arties will form separate markets and distinct legal orders”.152 This undoubtedly rules out for now any possibility of soft Brexit through UK accession to EEA membership. In all likelihood, the UK will no longer be part of the ECN after the Brexit, but there is still a strong possibility to negotiate a so-called “second generation” cooperation agreement along the lines of the EU-Swiss Cooperation Agreement on Competition Matters entered into force on 1 December 2014.153 First, unlike any former EU cooperation agreement signed with third countries,154 the EU-Swiss agreement allows competition authorities to “transmit for use as evidence information obtained by investigative process that is already in its possession to the competition authority of the other Party”, even in the absence of an express consent in writing.155 Second, investigative measures on behalf of the other party are not authorised, but the agreement ensures coordination of the timing of dawn raids in both jurisdictions.156 The Agreement also provides for positive comity to a certain extent, as competition authorities may request each other to carry out enforcement activities on a voluntary basis.157 It is clear that this deal provides for less cooperation than within the ECN: express consent is still needed for exchange of information obtained in leniency applications and settlement procedures.158 Besides, information sharing is subject to strict requirements: confidential information can only be used if the authorities are investigating on same or related infringements159 and may only be used for the purpose set out in the detailed request of information.160 Finally, the treaty provides to competition authorities broad discretion to limit cooperation enforcement and to implement positive or negative comity. Still, the exchange of confidential information without consent may be considered as a big step forward in competition cooperation and be desirable for the CMA post-Brexit.
In a press release, the EC justified the innovative depth of the EU-Swiss Cooperation Agreement on Competition Matters by the fact that “[t]he EU and Switzerland are two very important economic partners, whose economies are deeply integrated. As a result, many anticompetitive practices have cross border effects on trade between the EU and Switzerland”.161 It is not crazy to think that the UK is exactly in the same situation, after “more than 45 years of economic integration” and considering “the sizes of the two economies and their geographic proximity which have led to complex and integrated supply chains”.162 This deep economic integration will not disappear after Brexit and is sought to be preserved in the context of the future UK-EU FTA as contemplated by the PD. In particular, as mentioned earlier, the UK and the EU currently ambitions to create a free trade area163 with no tariffs on goods.164 It is also stated that liberalisation in trade in services would go far beyond Parties WTO commitments and would be inspired by recent Union FTAs.165 It is thus clear from the reading of the PD that even if the UK and the EU will have separate markets, their economic integration and partnership will continue to be at least as equally important as the one between the EU and Switzerland. As a result, the EU and the UK should negotiate a cooperation agreement on competition no less ambitious. To the contrary, cooperation between the EU and the UK in the field of private enforcement for decisions given by civil and commercial courts seems more difficult, even if it would greatly ease the enforcement of competition related decisions for victims both in the EU and in the UK. Indeed, the UK is as of today one of the most used EU forums for private enforcement of competition law decisions given by the Commission.166 However, it is doubtful whether the EU will consent to such an agreement. One might suspect that the EU Member States will work on redirecting these cases to their own national courts with the view of developing their own legal market. Brexit and the fact that the UK will not be submitted anymore to Regulation Brussels I (Recast) providing automatic recognition of judgements given within the EU is the great opportunity for them to do so. In that context, the new International Chamber of the Court of Appeal of Paris working both in English and French was expressly designed as to attract international commercial cases before French forums167 and similar initiatives have been taken in the Netherlands, Belgium and Germany.168 Moreover, the conclusion of such a comprehensive cooperation agreement on civil and judicial cooperation would have an impact which would go way beyond the simple enforcement of competition decisions and the implications of which would be unwelcome both to the UK and to the EU. b) Mergers In the same way as for antitrust laws, the alignment of EU and UK merger regulatory standards is important to ensure that the future economic partnership provides for open and fair competition between UK and EU businesses after Brexit. In this view, the PD makes clear that deep economic integration requires strong regulatory alignment in all fields of competition law and indicates that the future trade deal will be built on the level playing field arrangements provided in the DWA.169 In this regard, Article 19 of the Backstop Protocol provides that concentrations which are notifiable to the UK or the Union which “threaten, significantly impede or substantially lessen effective competition [...] shall be declared incompatible, in so far as they affect trade between the Union and the UK”.170 Article 22 requires for the UK to “adopt or maintain a competition law which addresses in an effective manner” this concern.171 As previously analysed, the substantive tests applied by the EC and the CMA for the purpose of merger control are likely to continue to be aligned post-Brexit. Also, the UK Government does not plan for any substantial change to its merger policy. As for antitrust law, it is not the substantive alignment of merger regulations that will be difficult post-Brexit, but the effective enforcement of such laws. The PD requires “adequate mechanisms to ensure effective implementation domestically”172 of relevant competition law standards as part of the future relationship between the UK and the EU. Likewise, Article 24 of the Backstop Protocol strongly requires from the UK that it “shall ensure effective enforcement” and “shall not reduce the effectiveness of public and private enforcement of its competition laws”, including of EA02. However, it has been demonstrated above that substantive alignment of competition regimes does not totally erase the possibility of inconsistency between the commitments and decisions reached in future dual notification cases. First, the CMA may identify “UK specific concern which the EU does not identify.”173 Second, misalignment of timing in notification resulting from the difference between UK voluntary and EU mandatory regimes makes divergence simply arising from poor timing and not genuine differences more likely to happen.174 This would make the application of EU and UK merger control regulations less effective and less predictable when dual notification is required. For the purpose of limiting these enforcement overlaps and gaps, the EU and the UK could agree on a cooperation framework in this area. As for antitrust cases, the UK notably “hopes to negotiate a close relationship of cooperation with the European EC and NCAs to allow for information sharing in merger cases”175 where dual notification is required. Similarly, Article 23 of the Backstop Protocol provides that the UK and the EU shall endeavour to cooperate on the investigation of merger cases.176 Considering the deep economic integration existing between the EU and UK markets, which is likely to be preserved as far as possible by the future FTA to be negotiated, it is clear that both the EU and the UK need to cooperate on the numerous cross-border merger cases having an impact on both jurisdictions. The EU-Swiss Cooperation Agreement177 may, again, serve as possible template, as it organizes merger control cooperation between the EU and one of its closest trading partners. As previously stated, this agreement provides for sharing of confidential information on ongoing merger investigations without businesses’ consent and would undermine the possibility of parallel reviews and diverging decisions. While this feature is crucial in the field of antitrust law, it is less the case in merger cases. Companies involved in merger transactions will be far more inclined to authorize broad disclosure of all relevant information as long as it secures fast clearance from all jurisdictions reviewing the merger. In fact, close cooperation and articulation between agencies conducting investigations on the same merger substantially reduces businesses’ transactional costs. Keeping this in mind, the CMA suggests that absent of a formal EU-UK cooperation agreement, businesses could “help streamline the merger review process by agreeing confidentiality waivers to allow confidential information to be shared between enforcement agencies”.178
Extensive sharing of information and mutual notification of ongoing merger cases between the CMA and the EC would particularly enable the CMA to identify at an early stage whether a merger notified to the EC is likely to raise specific competition concerns in the UK and affect UK market.179 Negative comity provisions similar to those contained in the EU-Swiss treaty could also help undermine the possibility of conflicting commitments and remedies.180 Under this provision, the CMA and the EC would have to take consider the interests of the other agency when issuing a decision of clearance or commitments regarding a transaction.181 It would also give competition agencies an opportunity to comment on such decision. 182 Cooperation would then result in mutually supportive decisions on merger remedies rather than inconsistent decisions. It has also been argued that coordinated investigations on dual notification merger cases especially in their timing would secure more effective enforcement of EUMR and EA02. The House of Lords in its report on competition laws and State aid advocated for the enactment of measures “to reduce the impact of differences between the statutory timelines for CMA and EC reviews.”183 It is the view of certain commentators that the UK should even depart from its voluntary regime and implement a sort of a mandatory pre-notification to the CMA184 for mergers that meet the global financial thresholds under EUMR and qualify for UK jurisdiction.185 The CMA would then have to decide if it wants to investigate the case and require a full merger notice, or to the contrary stay the proceedings. The CMA in its technical notice related to merger enforcement in the case of a no deal already implicitly implement this idea, as it urges businesses which transaction is currently reviewed by the EC to engage in pre-notification discussions with the CMA.186 c) State aid As previously mentioned, there are no State aid provisions among the British Acts.187 In the White Paper, the UK made an upfront commitment to maintain a common rulebook with the EU.188 Thereby, the UK Government seemed prepared to revoke the possibility to implement a more interventionist State aid framework as a result of Brexit. This opportunity to be independent from the EU State aid regime has been an important issue debated during the Brexit referendum campaign. Brexiteers argued that State aid could be used in a way that offers more support to UK corporations and boosts the UK economy.189 On the other hand, most of the scholars and competition professionals had expressed reservations against such use of State aids, underlining that up until today, the UK was not hindered in its use of State aid by EU law, but simply chose not to make the best of them.190 Some striking figures showed that “UK spent on average €100 per capita on State aid between 2009 and 2015, compared to €181 per capita in Belgium, €224 per capita in France, and €266 per capita in Germany over the same period”.191 The UK Government also confirmed that EU State aid rules did not hinder the support of major projects. UK negative responses rate for validation of State aid by the EC ranges amongst the lowest of the largest Member States.192 Moreover, some members of the civil society have expressed the concern that if the UK will use Brexit as an opportunity to offer a wider support than today to its national industry it may create ‘rent seekers’ interested in securing themselves a monopoly.193 Taking into account UK’s government possible willingness to remain in step with the EU laws in the competition field, one can consider that in that context a solution to shape UK’s future State aid would be for it to integrate the European Free Trade Association (“EFTA”) and follow the path of other EFTA countries in that area. However, we have already established that current negotiations of a future FTA exclude this possibility. In line with UK’s current political plan to take back control on its laws, borders and money, it would not accept to remain in the Single Market.
An alternative model would be the one adopted by Ukraine, which follows a “parallel” State aid system. Following Ukraine’s Association Agreement with the EU194, in absence of any Ukrainian State aid provisions, Ukraine had to adopt a State aid legislation in compliance with the rules in force in the EU on the same matter. Also, Ukrainian courts became bound by the jurisprudence of the ECJ on the matter.195 However, it is highly probable that the UK will not agree to the same kind of deal. Indeed, as opposed to Ukraine, the UK is engaged in a “hard Brexit” is very unlikely to accept supranational institutions’ authority such as the ECJ. Switzerland adopted another kind “parallel” system organised under multiple bilateral agreements with the EU. The FTA196 shaped the way the two States handled State aid regulation. It is worth mentioning, however, that the EU was very unsatisfied by the FTA it negotiated with Switzerland especially in regard to the State aid provision. Indeed, Article 23.1.iii says that State aid which presents the possibility of distorting competition is incompatible with the FTA but does not provide for any remedies or consequences to sanction such incompatibility. In addition, the Swiss Federal Supreme Court provided a very restrictive interpretation of the FTA in its early case law.197 The fact that the FTA does not put in place any State aid control was especially displeasing for the EU considering that Switzerland has no national State aid regulation, except in the air transportation field.198 Therefore it is highly unlikely that the EU will agree to organize State aid as loosely with the UK. It is highly probable that the provisions on State aid in the future UK-EU FTA agreement will be much more detailed and clearly outline the consequences of their breach to achieve an effective control of State aid.199 This is confirmed by the provisions contained in the Backstop Protocol, as previously analysed. Another solution would be for the UK to rely on the WTO State aid provisions in addition to the national legislation it committed itself to adopt after Brexit, the WTO taking care exclusively of the international dimension of State aid. We have to keep in mind though that this structure does not aim for a market integration as deep as the one that the UK desires to obtain from the EU. The framework offered by the WTO is quite limited. The WTO Agreement on Subsidies and Countervailing Measures (“ASCM”) only applies to goods. It does not provide an ex ante approval. It implies a State-to-State enforcement. It does not define a concept of subsidies which could be possibly approved under certain conditions. Finally, the threshold of complaint is very high. Following this path, the UK would close itself the doors to a tighter integration into the EU market. Such possibility has been for now excluded by the DWA. A last possibility would be a specific to the UK: tailored for and created by the UK. Moved by a strong motivation to keep a large access to the EU market and understanding that the EU could need strong guarantees in exchange for such an access, the UK would have transposed through the EUWA EU State aid provisions during the transition period.200 Then the UK will perhaps even be willing to transpose the GBER.201 As today 90% of the UK State aid is given under the EU GBER, such a transposition could be very useful, especially as to what concerns cost savings.202 The Government will have to consult the CMA, in order to decide whether to issue a domestic Block Exemption Order to similar effect.203 As claimed by the UK Government, it wouldn't result in a submission of the UK to the EU legislation considering the fact that the UK has been major European influence on the elaboration of the EU competition law, including State aid regime.204 As noted by several observers, one may reasonably believe that in the near future, i.e. in the next 5 years, the UK will practically not differ from the EU law in State, and perhaps even after that. This tendency will strongly depend on the kind of FTA achieved between the EU and the UK and the degree of access the UK will have to the Single Market. Conclusion: Brexit, British Oddity? As recalled in the introduction, the impact of Brexit on competition law will heavily depend on political considerations that largely transcend the subject of this paper. Despite the agreement on a draft deal, everything may still happen, including no-deal at all, or a second referendum which would simply annul Brexit. In this paper, we chose to focus our analysis on the latest developments and on what they allow to foresee. In the latest survey, 28 November 2018, 52% of the British population declared that the negotiated deal was the best that could be achieved.205 In any event, it is our understanding that UK competition laws will remain closely aligned to EU standards, in the short-term to limit disruption for businesses, and in the long-term as to negotiate a substantial access to EU market in the context of a future FTA. In the end, whether a deal is agreed or not as of March 2019 will only substantially impact the enforcement and not the substance of UK and EU competition regulations and calls for ambitious cooperation in this field.
Endnotes 1. Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on 14 November 2018. 2. “EU leaders agree UK's Brexit deal at Brussels summit”, BBC News, 25 November 2018, article can be found at https://www.bbc.com/news/uk-46334649 3. “UK Parliament to vote on Brexit deal on Dec. 11: Business Insider, Reuters, 26 November 2018, article can be found at https://www.reuters.com/article/us-britain-eu-vote/uk-parliament-to-vote-on-brexit-deal-on-dec-11-business-insider-idUSKCN1NV27L 4. European Commission, “Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan”, 13 September 2018. 5. “Britain is still preparing for no-deal Brexit: PM May”, Reuters, 15 November 2018. 6. Competition (Amendment etc.) (EU Exit) Regulations 2019 (“Competition SI”), 29 October 2018. 7. Boris Johnson resigned in July 2018 and Jo Johnson resigned in November 2018. 8. Jo Johnson, Resignation Letter dated 9 November 2018. 9. Dominic Raab, Esther McVey and Shailesh Vara. 10. Theresa May, Speech at Lord Mayor’s Banquet, London, 13 November 2018. 11. Bruce Lyons, David Reader, Andreas Stephan, “UK competition policy post-Brexit: taking back control while resisting siren calls”, Journal of Antitrust Enforcement, Vol. 5, 2017, pp. 347–374. 12. Government Response to the House of Lords EU Internal Market Sub-Committee Report on the impact of Brexit on UK Competition and State Aid, 29 March 2018. (“Government Response to HoL Report”) 13. Government Response to HoL Report, p. 4. 14. Frédéric Marty, “Le Brexit et les politiques de concurrence britannique et européenne”, Revue de l’Union Européenne, 2016, p. 557. 15. Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom, 22 November 2018. 16. Brexit Competition Law Working Group, “Conclusions and Recommendations”, July 2017, p.9. 17. Article 101 of the Treaty on the Functioning of the European Union. 18. Article 102 of the Treaty on the Functioning of the European Union. 19. Article 3, COUNCIL REGULATION (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation 1/2003”). 20. Section 10, Chapter I, Competition Act of 1998. 21. Article 11, Regulation 1/2003 outlines a cooperation between the EC and the competent national authorities on the treatment of antitrust cases. 22. Article 11.3, Regulation 1/2003 of 16 December 2002. 23. Sections 47A and 58A, Competition Act of 1998. 24. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (“Directive 2014/104/EU”). 25. Article 17 on Quantification of Harm, Chapter V, Directive 2014/104/EU. 26. Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“EUMR”) Official Journal L 24, 29.01.2004, p. 1-22. 27. Article 1, EUMR. 28. Chapter 4, Enterprise Act of 2002; European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.13, §27. 29. Brexit Competition Law Working Group, “Conclusions and Recommendations”, July 2017, p.16. 30. Article 4, EUMR. 31. Sections 96. (Merger notices), Chapter 5, Enterprise Act of 2002. 32. Brexit Competition Law Working Group, “Conclusions and Recommendations”, July 2017, p.16, §3.2. 33. The UK national law also allows for public interest considerations in assessing mergers to be taken into account by the CMA, and these considerations set up in sections 42 to 68 of Enterprise Act 2002 are substantially similar to the EUMR criteria. 34. Lucrezia Busa and Elisa Zaera Cuadrado, “Application of Article 21 of the Merger Regulation in the E.ON/ Endesa case”, Competition Policy Newsletter, n°2, 2008, p.1. 35. Brexit Competition Law Working Group, “Conclusions and Recommendations”, July 2017, p.17, §3.6 to §3.8. 36. Article 107.1, TFEU. 37. European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.9. 38. Guidelines on regional State aid for 2014–2020: Acceptance of the proposed appropriate measures pursuant to Article 108.1 of the Treaty on the Functioning of the European Union by all Member States, (OJ C 101, 5 April 2014); EC Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid, (OJ L 379, 28 December 2006), subsequently replaced by Regulation 1407/2013. 39. Theresa May’s Speech to the Confederation of British Industry, 19 November 2018: “We have agreed a transition period, to avoid a cliff-edge for business and to provide the certainty you need to invest". 40. Articles 95.1 and 95.3, DWA. 41. Article 126, DWA. 42. Jennifer Rankin, “Brexit transition could be extended to 2022, says Barnier”, The Guardian, 18 November 2018. 43. Chris Bryant, Dave Anderson and Paul Culliford, “The Draft Brexit Agreement and Competition Law”, Lexology, 16 November 2018. 44. Article 92, DWA. 45. Article 92 3(c), DWA. 46. Article 95.2, DWA. 47. Article 92.1, DWA. 48. Article 92, DWA. 49. Article 95.2, DWA. 50. Article 92.3.a. DWA. 51. Article 93, DWA. 52. Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom, 22 November 2018, Part II: Economic Partnership (“PD”).. 53. European Council “(Art. 50) guidelines for Brexit negotiations”, Press release, 29 Avril 2017, available at http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines. 54. Article 132 DWA. 55. Good Friday Agreement, 10 April 1998. 56. Jessica Elgot, Peter Walker, “Theresa May tells MPs: no Brexit deal comes without a backstop”, The Guardian, 26 November 2018, article can be found at https://www.theguardian.com/politics/2018/nov/26/theresa-may-tells-mps-no-brexit-deal-comes-without-a-backstop 57. Article 6 of the Protocol on Ireland and Northern Ireland (“Backstop Protocol”). 58. Article 20, Backstop Protocol. 59. European Commission, Fact Sheet, “Protocol on Ireland and Northern Ireland”, 14 November 2018. 60. Ibid. 61. Article 6, Backstop Protocol. 62. Article 17, Backstop Protocol. 63. Article 18, Backstop Protocol. 64. Article 19, Backstop Protocol. 65. Articles 17.1, 18.1, 19.1, Backstop Protocol. 66. Article 22.2, Backstop Protocol. 67. Article 21, Annex 4, Backstop Protocol. 68. Article 22, Annex 4, Backstop Protocol. 69. White Paper, Chapter 1.6.2 §115. 70. Article 23, Annex 4, Backstop Protocol. 71. Article 9, Annex 4, Backstop Protocol. 72. Post-Brexit state aid in the UK, Speech by Juliette Enser, CMA State Aid Director, 8 October 2018, 73. G Peretz, K Bacon, and I Taylor, “Bringing State Aid Home: Could an Effective State Aid Regime Be Devised for the UK?” 2017, UK State Aid Law Association, §25; Government Response to HoL, p.14. 74. “A view from the CMA: Brexit and beyond”, Speech by Michael Grenfell, CMA Executive Director, 16 May 2018. 75. Article 10, Annex 4, Backstop Protocol. 76. Article 10.4, Annex 4, Backstop Protocol. 77. Article 11, Annex 4, Backstop Protocol. 78. Article 13.1, Annex 4, Backstop Protocol. 79. Article 164, DWA. 80. Articles 13 and 14, Annex 4, Backstop Protocol. 81. Article 170, DWA. 82. PD, Part II, Chapter XIV, §79. 83. Heather Stewart, “Brexit: how the meaningful vote will work”, The Guardian, 28 November 2018, article can be found at https://www.theguardian.com/politics/2018/nov/28/brexit-how-the-meaningful-vote-will-work 84. David Boffey, Jennifer Rankin and Sam Jones, “Brexit deal: take it or leave it, EU tells Britain”, The Guardian, 16 November 2018, article can be found at https://www.theguardian.com/politics/2018/nov/16/brexit-deal-take-it-or-leave-it-eu-tells-britain 85. Richard Partington, “Bank of England says no-deal Brexit would be worse than 2008 crisis”, The Guardian, 28 November 2018, article can be found at https://www.theguardian.com/business/2018/nov/28/bank-of-england-says-no-deal-brexit-would-be-worse-than-2008-crisis 86. European Commission, “Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan”, 13 November 2018, p. 6. 87. The Institute for Government, European Union Withdrawal Act, 7 November 2018, article can be found at https://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-act 88. UK Government, “Merger review and anti-competitive activity if there's no Brexit deal”, 13 September 2018. 89. Explanatory Memorandum to the Competition (Amendment etc.) (EU exit) Regulations 2019, §2.4. 90. The Competition (Amendment etc.) (EU Exit) Regulations 2019, 29 October 2019. 91. Explanatory Memorandum to the Competition (Amendment etc.) (EU exit) Regulations 2019, §7.4. 92. Clause 6.2, EUWA. 93. Regulation 1/2003. 94. Commission Notice on cooperation within the Network of Competition Authorities. (2004/C 101/03). 95. Article 12, Regulation 1/2003. 96. ECJ, judgement of 6 September 2017, Intel v EC II, C-413/14; Court of first instance judgement of 25 March 1999, Gencor Ltd v. EC T-102/96 (NB: Gencor was a merger case, but its reasoning on jurisdiction remains valid in relation to Articles 101 and 102.) 97. Articles 20 to 22, Regulation 1/2003. 98. The Competition (Amendment etc.) (EU Exit) Regulations 2019, 29 October 2019. 99. Explanatory Memorandum to the Competition (Amendment etc.) (EU Exit) Regulations 2019, §7.2. 100. . Ibid. 101. Government Response to HoL Report, Recommendation 5, p. 7. 102. Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law, 26 November 2014. 103. UK Government, “CMA's role in mergers if there's no Brexit deal”, 30 October 2018. 104. .Ibid 105. Hogan Lovells, “UK preparations for a ‘no deal’ Brexit – competition law”, 9 November 2018. 106. Hogan Lovells, “UK preparations for a ‘no deal’ Brexit – competition law”, 9 November 2018; Explanatory Memorandum to the Competition (Amendment etc.) (EU Exit) Regulations 2019, §7.18. 107. UK Government, “Guidance on Mergers: How to notify the CMA of a merger”, 31 March 2014, article can be found at https://www.gov.uk/guidance/mergers-how-to-notify-the-cma-of-a-merger 108. UK Government, “CMA's role in mergers if there's no Brexit deal”, 30 October 2018. 109. UK Government, “Merger review and anti-competitive activity if there's no Brexit deal”, 13 September 2018, article can be found at https://www.gov.uk/government/publications/merger-review-and-anti-competitive-activity-if-theres-no-brexit-deal/merger-review-and-anti-competitive-activity-if-theres-no-brexit-deal#after-march-2019-if-theres-no-deal 110. UK Government, “CMA's role in mergers if there's no Brexit deal”, 30 October 2018, article can be found at https://www.gov.uk/government/publications/cmas-role-in-mergers-if-theres-no-brexit-deal/cmas-role-in-mergers-if-theres-no-brexit-deal 111. .Ibid 112. Ronan Scanlan, “UK: Brexit - The need for a special approach to EU mergers”, Concurrences n°2-2018. 113. Ibid, §21. 114. Ibid, §22. 115. European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.9. 116. Sarah Long, David Robert, “Losing the ‘one-stop-shop’: the real cost of a dual UK/EU merger process post-Brexit”, article can be found at http://www.inhouselawyer.co.uk/legal-briefing/brexit-and-mergers/ 117. .Ronan Scanlan, “UK: Brexit - The need for a special approach to EU mergers”, Concurrences n°2-2018, §12; Section 22 of Enterprise Act 2002. 118. .Bruce Lyons, David Reader and Andreas Stephan, “UK competition policy post-Brexit: taking back control while resisting siren calls, Journal of Antitrust Enforcement, 2017, 5, 347–374; Section 58 Enterprise Act 2002. Section 42(2) Enterprise Act 2002 also affords the Secretary of State the power to intervene on specified public interest grounds. 119. .Government Response to HoL Report, Recommendation 11, p. 10. 120. See Department for Business, Energy and Industrial Strategy, ‘Government confirms Hinkley Point C project following new agreement in principle with EDF’ (Press Release, London, 15 September 2016); 121. Government Response to HoL Report, Recommendation 11, p. 10. 122. Explanatory Memorandum to the Competition (Amendment etc.) (EU exit) Regulations 2019, §7.15. 123. Ibid, §7.23. 124. Government Response to HoL Report, p.13. 125. Office for National Statistics, “Who does the UK trade with”, 3 January 2018. 126. Government Response to HoL Report, p.13. 127. European Commission, “Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan”, 13 November 2018, p.5. 128. “Brexit political declaration: what it means for the future UK-EU relationship”, The Conversation, 22 November 2018, article can be found at https://theconversation.com/brexit-political-declaration-what-it-means-for-the-future-uk-eu-relationship-107256 129. PD, Part II, Chapter I, §17. 130. “Fish, level playing fields and Gibraltar: Some of the issues at a high-stakes Brexit summit”, CNBC, 23 November 2018, article can be found at https://www.cnbc.com/2018/11/22/eu-brexit-summit-fish-level-playing-fields-and-gibraltar-are-up-for-discussion.html 131. PD, Part II, Chapter XIV, §79. 132. “EU’s Vestager insists on ‘level playing field’ after Brexit” (AFP source), Business Times, 20 November 2018, the article can be found at https://www.businesstimes.com.sg/government-economy/eus-vestager-insists-on-level-playing-field-after-brexit 133. Ibid. 134. “What to look for in Brexit declaration?”, BBC News, 20 November 2018, article can be found at https://www.bbc.com/news/world-europe-46278361 135. “France and Spain push for extra EU demands on Brexit”, Financial Times, 19 November 2018, article can be found at https://www.ft.com/content/9154d4fe-ec0b-11e8-89c8-d36339d835c0 136. UK White Paper on the future relationship between the United-Kingdom and the European Union, (“White Paper”), 12 July 2018, Chapter 1.6 §105. 137. . Ibid, Executive summary. 138. PD, Part II, Chapter II, §21. 139. PD, Part II, Chapter XIV, §79. 140. White Paper, Chapter 1.6, §106. 141. Agreement between the European Union and the Swiss Confederation Concerning Cooperation on the Application of their Competition Laws, 17 May 2013. (“EU-Swiss Cooperation Agreement on Competition Matters”). 142. Government Response to HoL Report, Recommendation 12, p. 11. 143. Article 23.4, Backstop Protocol. 144. White Paper, Chapter 1.6.2, §116. 145. . PD, Part II, Chapter XIV, §79. 146. Article 23.2, Backstop Protocol. 147. Article 23.3, Backstop Protocol. 148. Government Response to HoL Report, Recommendation 12, p. 11. 149. White Paper, Chapter 1.6.2, §116. 150. Article 1 and 28, European Economic Area Agreement. 151. Articles 99, 102 to 104, European Economic Area Agreement. 152. PD, Part II, Chapter II, §21. 153. .Agreement between the European Union and the Swiss Confederation Concerning Cooperation on the Application of their Competition Laws, 17 May 2013 (“EU-Swiss Cooperation Agreement on Competition Matters”). 154. Section VII §3, Agreement between the European Communities and the Government of Canada Regarding the Application of their Competition Laws, done at Bonn on 17 June 1999. 155. Article 7.4.a, EU Swiss Cooperation Agreement on Competition Matters. 156. . Article 4, EU Swiss Cooperation Agreement on Competition Matters; Lenz and Staehelin, “Cooperation Agreement between Switzerland and the EU on competition law enters into force”, Lexology, 14 November 2014. 157. Article 6, EU Swiss Cooperation Agreement on Competition Matters. 158. Article 7.6, EU Swiss Cooperation Agreement on Competition Matters. 159. Article 7.4.a, EU Swiss Cooperation Agreement on Competition Matters. 160. Article 8.3, EU Swiss Cooperation Agreement on Competition Matters. 161. . European EC, Press release, “European Union and Switzerland sign Cooperation Agreement in Competition Matters”, 17 May 2013. 162. PD, Part II, §16. 163. PD, Part II, Chapter II(A) §22. 164. . PD, Part III, Chapter II(A) §23. 165. PD, Part III, Chapter III(A) §29. 166. . European Union Committee of the House of Lords, “Brexit: Competition and State aid”, 12th Report Session 2017-19, published 2 p. 23, §80. 167. See the Protocol on Procedural Rules Applicable to the International Chamber of the Court of Appeals of Paris, 26 January 2018. 168. Florian Wagner-von Papp, “Competition Law in EU Free Trade and Cooperation Agreements (and What the UK Can Expect After Brexit)”, p. 43. 169. . PD, Part II, Chapter XIV, §79. 170. . Article 19, Backstop Protocol. 171. Article 22, Backstop Protocol. 172. PD, Part II Chapter XIV §79. 173. Ronan Scanlan, “UK: Brexit - The need for a special approach to EU mergers”, Concurrences n°2-2018, §22. 174. Ibid. 175. Government Response HoL Report, Recommendation 4, p. 6. 176. . Article 23, Backstop Protocol. 177. EU Swiss Cooperation Agreement on Competition Matters. 178. Government Response to the HoL Report, Recommendation 4, p. 6. 179. Ronan Scanlan, “UK: Brexit - The need for a special approach to EU mergers”, Concurrences n°2-2018, §37. 180. Article 5, EU Swiss Cooperation Agreement on Competition Matters. 181. Article 5.1, EU Swiss Cooperation Agreement on Competition Matters. 182. Article 5.1 EU Swiss Cooperation Agreement on Competition Matters. 183. European Union Committee of the House of Lords, “Brexit: Competition and State aid”, 12th Report Session 2017-19, published 2 February 2018 §84. 184. Ronan Scanlan, “UK: Brexit - The need for a special approach to EU mergers”, Concurrences n°2-2018, §48. 185. Ibid. 186. CMA technical notice on “CMA's role in mergers if there's no Brexit deal”, 30 October 2018. 187. European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.13. 188. . White Paper, Chapter 1.6 §108 (a). 189. European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.44. 190. Ibid. 191. . Ibid. 192. . Government Response to HoL, p.12. 193. John Vickers, “Consequences of Brexit for competition law and policy”, Oxford Review of Economic Policy, Volume 33, n°1, March 2017, p.71. 194. 4. Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, 29 May 2014. 195. .Igor Svechkar and Sergiy Glushchenko, Global Competition Review, Know-How, State aid 2018, Ukraine, article can be found at https://globalcompetitionreview.com/jurisdiction/1005138/ukraine 196. EC Switzerland Trade Agreement, 22 July 1972, Official Journal L 300, 31/12/1972 p. 0189. 197. State aid 2015, Switzerland, Franz Hoffet, Marcel Dietrich, Gerald Brei and Alain Girard, Global Competition Review, Know-How, article can be found at https://www.eversheds-sutherland.com/documents/global/switzerland/Publications/GCRCH_State_Aid_2015.pdf 198. .Ibid 199. . European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.46. 200. Government Response to HoL Report, p.2. 201. European Union Committee of the House of Lords, “Brexit: competition and State aid”, 12th Report of Session 2017-19, published 2 February 2018, p.46. 202. Government Response to HoL Report, p.4. 203. Government Response to HoL Report, p.6. 204. . Frédéric Marty, “Le Brexit et les politiques de concurrence britannique et européenne”, Revue de l'Union européenne, 2016 p.557. 205. . Martine Pauwels, “Sans accord sur le Brexit, l'économie britannique vivra un scénario noir”, Arte Journal, 28 November 2018, article can be found at https://info.arte.tv/fr/afp/actualites/sans-accord-sur-le-brexit-leconomie-britannique-vivra-un-scenario-noir