At £404m, the total fines imposed by the CMA in 2021/2022 were higher than ever. But with businesses and consumers alike affected by the cost of living crisis, what can we expect its areas of focus to be in 2022/2023 and beyond? Fieldfisher partner Jessica Gardner looks at the key takeaways from recent CMA activity.
Shaped by rising concerns over the cost of living and business recovery post-Covid-19, the CMA's Annual Report for 2021/2022 confirms that its intervention and investigations over the past year have delivered annual consumer savings of over £2bn (equivalent to £22.50 of direct benefit for every £1 spent by the CMA).
The CMA's key areas of focus have included:
- Competition law investigations (e.g. price-fixing, abuse of dominance) in sectors such as pharmaceuticals, online advertising and lighting. It imposed total fines of over £404m – the highest level of fines since the Competition Act came into force 22 years ago.
- Merger control inquiries, with a record 827 transactions reviewed (up from 600 the previous year). The CMA adopts a two-stage process for UK merger control: an initial review at "Phase 1" to assess whether the merger raises prima facie competition concerns; and an in-depth review at "Phase 2" for mergers that qualify under the Phase 1 test. Of the transactions investigated at Phase 1 by the CMA in 2021, over 50% were cleared unconditionally. Of the transactions opened at Phase 2, only 25% were cleared unconditionally.
- Consumer protection investigations, including in relation to unfair ground rents for leasehold properties, auto-renewals in antivirus software, and fake online reviews.
- Market studies launched in the digital sphere, including music streaming and mobile ecosystems, and two further studies concluded into electric vehicle charging and children's social care.
Looking ahead to the remainder of 2022 and beyond, we expect the CMA will focus on the following:
- More consumer protection investigations into unfair business practices, particularly where they concern essential consumer products and services that will be directly impacted by increases in the cost of living, and that consumers can ill afford to tolerate when money is tight. Auto-renewals, unfair refund practices, fake and misleading online reviews and marketing claims will be key areas of focus, and will be targeted using the CMA's dedicated 'Behavioural Hub'.
- More price fixing and market sharing investigations, particularly large and complex cases with a global dimension that would previously have been dealt with by the European Commission. The current economic and political climate is likely to present a number of risks to competition: businesses may fail at a higher rate and there may be reduced pressure to compete, exposing those businesses to greater competition law risk. For the CMA, this means a more active and vigilant watch for possible anti-competitive conduct across all sectors in the UK.
- Tech giants and digital markets will be more heavily scrutinised by the CMA's new Digital Markets Unit, which will oversee a new regulatory regime for big digital firms and take action against harmful practices.
- A focus on cases where practices could impede the transition to a low-carbon economy (a notable example being misleading environmental claims), and a more pro-active role in guiding businesses on how to engage in sustainability activities without exposing themselves to unnecessary competition law risk.
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