Brexit is a significant consideration in relation to antitrust issues. Following the expiry of the transition period under the Withdrawal Agreement at the end of 2020, the UK becomes a parallel jurisdiction. There has been continuity during the transition period, with the UK competition regime remaining de facto part of the EU system. Although the UK is no longer a Member State, it has been treated as one for purposes of EU competition rules. The Withdrawal Agreement also contains specific arrangements for cases that straddle the end of the transition period.
Parallel regulation and enforcement in relation to merger control and anticompetitive conduct will create an additional administrative and financial burden for businesses: cross-border transactions or cartel investigations may need to be considered not only at the EU level but also by the UK’s Competition and Markets Authority.
For mergers, the UK is 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 it remains to be seen if the substantive rules will mirror the EU regime.
Imminent Brexit Issues to consider
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 UK merger control review on your deal timetable? And on the prospects for clearance?
Is your business currently subject to an ongoing EU antitrust investigation?
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 December 2020? 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
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?
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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