Brexit is a significant consideration in relation to antitrust issues. There is a prospect of parallel regulation and enforcement in relation to merger control and anticompetitive conduct, requiring many cross-border transactions or cartel investigations to be considered not only at the EU level but also by the UK’s Competition and Markets Authority. The shape of the UK and EU antitrust landscape ultimately hinges on the exact scope of the future UK-EU arrangements and in particular whether Brexit takes place under the terms of the Withdrawal Agreement (or a similar agreement) or without an agreement (i.e. deal v no deal Brexit).
The Withdrawal Agreement provides for a transition period until at least the end of 2020, during which EU competition rules will continue to apply and there will be no change in the division of competences between the EU and the UK. The European Commission will continue to assess deals as if the UK were still in the EU under the one-stop-shop principle, and it may assert jurisdiction over UK conduct that infringes EU competition rules. For cases that are pending at the end of the transition period, the Agreement provides that the Commission will retain jurisdiction and the CMA will not acquire jurisdiction over any UK aspects.
If there is no deal, the UK will at once become a parallel jurisdiction, which could create an additional administrative and financial burden for businesses. For mergers, the UK will no longer part of the EU's “one-stop-shop”, and deals may trigger an additional UK merger filing. Businesses may also be subject to parallel EU and UK investigations of anticompetitive conduct. The UK will also operate its own standalone state aid regime, albeit the substantive rules will be in line with the EU regime.
Imminent Brexit Issues to consider
Are you planning an M&A transaction in the run-up to March 2019?
Do any of the parties to the deal have a significant UK presence? Are you going to have to file in the UK?
Have you considered how Brexit may impact the wording of merger control-specific provisions in transaction agreements (conditions precedent, warranties and remedy obligations)?
Have you thought about the impact of a no-deal Brexit on your deal timetable? And on the prospects for clearance?
Is your business currently subject to an EU antitrust investigation that is unlikely to end before 29 March 2019?
Does the alleged anticompetitive conduct have a UK nexus?
Is your business an immunity applicant? If your business applied for immunity and the alleged infringement has a UK nexus, have you considered submitting an application to the CMA?
Are you aware that the UK has no limitation period for antitrust infringements?
Is your business the beneficiary of state aid that falls within a block exemption?
Is your business an intended beneficiary of a state aid scheme that was notified to the Commission in the run-up to March 2019? And have you considered whether that scheme will have to be re-notified to the CMA?
If the state aid scheme will have to be re-notified to the CMA, has the aid grantor commenced informal pre-notification discussions?
Private antitrust damages claims
Has your business been affected by anticompetitive conduct, which is the subject of an EU investigation that is unlikely to end before March 2019?
Have you considered whether the CMA will launch a parallel investigation after March 2019?
Do you need to consider making a parallel claim in the UK and an EU Member State?
Have you thought about the impact of a no-deal Brexit on the enforcement of judgments of UK courts?
How Can Dechert Help
Dechert is a leading a transatlantic antitrust/competition practice with lawyers admitted to practice in all major European jurisdictions including England & Wales, France and Germany. Offices in Brussels, Frankfurt, New York, Paris, Philadelphia and Washington D.C. ensure that Dechert is well-positioned to serve wherever antitrust issues arise.
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