Apresentação
Este é um informativo diário que traz para o(a) leitor (a) notícias e casos de defesa da concorrência das principais jurisdições antitruste do mundo (CADE, FTC, Comissão Europeia, CMA etc).
Notícias
Publicada pauta da sessão de julgamento da próxima quarta-feira 11/12). Confira!
Seis casos serão apreciados durante a 241ª reunião do Tribunal Administrativo
Publicado em 05/12/2024 06h38 Atualizado em 05/12/2024 09h42
Foi publicada, no Diário Oficial da União desta quinta-feira (5/12), a pauta da próxima sessão de julgamento do Conselho Administrativo de Defesa Econômica (Cade). A 241ª Sessão Ordinária de Julgamento, que terá seis casos apreciados pelo Tribunal, acontecerá no dia 11/12, às 10h, com transmissão pelo YouTube.
Confira a pauta de julgamento:
1. Ato de Concentração nº 08700.008386/2024-06
Requerentes: iFood Holdings B.V. e Shopper Holdings, LTD.
Relator: conselheiro José Levi
2. Processo Administrativo nº 08012.002222/2011-09
Representante: Ministério Público do Estado de Minas Gerais
Representados: Kauan de Lucas Virtuoso, Altisberto Martins Ferreira, André Neves de Magalhaes , Apolônio Fernades dos Santos, Armando Pedro Torteli, Carlos Eduardo Ramirez, CM Hospitalar S.A., Comercial Cirúrgica Rio Clarense Ltda., Cristália Produtos Químicos Farmaceuticos Ltda., Dilma Mendes Luz, Dimaci Material Cirurgico Ltda., Douglas Peres de Araújo, Drogafonte Ltda., Dupatri Hospitalar Comécio, Importação e Exportação Ltda., Felipe de Melo Campos Chaves, Fernando Luís Prochnow, Gustavo Neves de Magalhães, Hipolabor Farmacêutica Ltda., Julio Issao Miyaoka, Laboratório Teuto Brasileiro S.A, Leonardo Teixeira Alves de Oliveira, Ligia Balestra de Pina Medeiros, Lucio Mauro dos Santos Broseguini, Luiz Eustaquio Silva, Macromed Comercio de Material Médico e Hospitalar Ltda., Merriam-Farma Comércio de produtos Farmaceuticos Eireli EPP, Novafarma Indústria Farmacêutica Ltda., Paulo César Prochnow, Profarma Specialty S.A, Renato Alves da Silva, Rhamis Distribuidora Farmacêutica Ltda., Sanval Comécio e Industria Ltda., Torrent do Brasil Ltda.
Relator: conselheiro Sérgio Ravagnani
Voto-vista: presidente Alexandre Cordeiro
3. Processo Administrativo nº 08700.000556/2019-39
Representados: Ciemarsal Comércio de Indústria e Exportação de Sal Ltda. – ME
Relator: conselheiro Diogo Thomson
4. Processo Administrativo nº 08700.003473/2021-16
Representados: Conselho Federal de Fisioterapia e Terapia Ocupacional – COFFITO e Conselho Regional de Fisioterapia e Terapia Ocupacional da 15ª Região – Crefito
Relator: conselheiro Carlos Jacques
5. Processo Administrativo nº 08700.003388/2018-52
Representados: Ana Proneli Bremm de Castro ME; Atos Livraria e Papelaria EIRELI EPP; Drogaria Furtado Ltda. ME; E.B de Castro Junior Cafeteria e Informática EPP (antiga DPM de Castilho Cafeteria e Informática. EPP); Lopes & Pereira Ltda. ME; Marilza Tomaz Pereira Cabeleireiros ME; Ana Proneli Bremm de Castro; Eduardo Bremm de Castro; Eduardo Bremm de Castro Júnior; Giullian Pereira da Costa; Jair Varela de Castilho; Maria Izabel Lopes Pereira; Rose Lopes Pereira; e Marilza Tomaz Pereira.
Relatora: conselheira Camila Alves
6. Consulta nº 08700.007814/2024-75
Requerentes: Bompreço Bahia Supermercados Ltda.
Relator: conselheiro Gustavo Augusto
Cade realizou sessão de distribuição nesta quarta-feira (5/12)
Cinco itens foram distribuídos entre os membros do Tribunal Administrativo
Publicado em 05/12/2024 10h02
OConselho Administrativo de Defesa Econômica (Cade) realizou, nesta quarta-feira (5/12), a 321ª Sessão Ordinária de Distribuição. Nas sessões de distribuição, os casos em análise na autarquia são encaminhados para um conselheiro relator, designado por sorteio.
Confira abaixo os casos sorteados:
1. Recurso Voluntário nº 08700.009932/2024-18
Recorrente: Apple Inc. e Apple Services LATAM LLC.
Relator: Conselheiro Victor Oliveira Fernandes.
2. Processo Administrativo para Imposição de Sanções Processuais Incidentais nº 08700.009316/2024-67
Representante: Conselho Administrativo de Defesa Econômica ex officio.
Requerentes: 3R Petroleum Oshore S.A. e Consórcio Papa-Terra.
Relator: Conselheiro Diogo Thomson de Andrade.
3. Processo Administrativo nº 08700.004235/2021-28
Representante: Conselho Administrativo de Defesa Econômica ex officio.
Representados: Alchem International Pvt Ltd.; Alkaloids of Australia Pty Ltd.; Alkaloids Corporation, India; Boehringer Ingelheim Pharma GmbH & Co. KG; Linnea SA; Transo-Pharm Handels-GmbH, Germany; Vital Laboratories Pvt Ltd.; Christian Beltrametti; Christopher Kenneth Joyce; Gilbert Georges Gara; Hellmuth Spoennemann; Massimiliano Carreri; Philipp Alexander Titulski; Raman Mehta; Rajiv Bajaj; SL Karnani; Stefan Bertram; e Stephen Mitchard.
Relator: Conselheiro Gustavo Augusto Freitas de Lima.
4. Processo Administrativo nº 08012.008871/2011-13
Representante: Conselho Administrativo de Defesa Econômica ex officio.
Representados: Havix Electronics Co. Ltd, Albert Hung, Albert Teng, Alex Wang, Alex Yeh (“Chung Cheng Yeh”), Alleh Jo, Anderson Liao, Andrew Cheng, Anita (“Min-Chang”) Huang, Arex (“Alex”) Huang, Asuka Hsu, Bock Kwon, Bon Joon Koo, Champ Shin, Chang Suk Chung (“Shane C.S. Chung”), Chien-Yuan (“C.Y”) Lin, Chieng-Hon (“Frank”) Lee, Chih Chuh (“C.C.”) Liu (Liou), Ching Sian (“Sam”) Wu, Chu Gang Tsui, Da-Gang (“Tai Kang”) Wu, Daniel Lee, David Chu, David Hsieh, Ding-Huei (“David”) Joe, Dominic Chen, Duk (“Mo”) Koo, Eddy Chu, Eric Hsieh, Geoffrey Wei –Tsu Liu, Gilbert Hua, Hank Yu, Hsueh – Lung (“Brian”) Lee, Jeffrey Kim, Jim Yang, John Tsai, Johnson Hsu, Joseph Y.J. Jun, Joshua Lo, Kenneth Hong, Kevin Chang, Kevin Cheng, Kevin Choi, Lu Pao (“L.P.”) Hsu, Luke Hsu, Mandy Chen, Mandy Liu, Marty Chiou, Meng Yueh Wu, Mian Wang, Michael Shieh, Milton Kuan (“Guan”) Guanjim, Nancy Huang, Nero Hung, Oscar Hsu (“Hsu Hwa Chang”), Rebecca Chen, Richard Bai, Samuel Lin, Sang Woo (“Stanley”) Park, Sean Wu, Sharon Wu (“Wsur”), Shu-Ren (“Steven”) Wang, Steven Ahn, Susy Liang, Sylvania Hung, Terry H. Lim, Tim Cheng, Tony (“Wen Jun”) Cheng, Tony Chien, Tony Hsu, Tai-Yuan (“Tyler”) Hsiao (“Shiao/Shiau”), Vera Wang, Vic Huang, Vicent Lau, Vicente Cheng, Wan Shou (“Wilson”) Wen, Wei-Hua Ji, Y.D. Lee e Yvonne Yun.
Relatora: Conselheira Camila Cabral Pires
5. Processo Administrativo nº 08700.000620/2022-87
Representante: Conselho Administrativo de Defesa Econômica ex officio.
Representados: Laboratório Gross S.A., Next Farma Comércio Ltda., Eugênio José Gusmão da Fonte Neto, Luiz Renato Garofani e Paulo Augusto Pereira do Nascimento Mós.
Relator: José Levi Mello do Amaral Júnior.
La CNMC recomienda reforzar la vigilancia y la motivación de decisiones en la evaluación de tecnologías sanitarias
Sector: Nota de prensa
Ámbito CNMC: Promoción de Competencia
Compartir
- El proceso es crucial para la toma de decisiones en política sanitaria. Incluye medicamentos, productos sanitarios, procedimientos médicos o quirúrgicos e incluso modelos organizativos para la prevención, el diagnóstico o el tratamiento de enfermedades.
- La CNMC considera que la norma puede generar eficiencias económicas y organizativas que beneficiarán tanto a operadores económicos como a los pacientes.
- Propone reforzar las garantías para evitar duplicidades y justificar mejor las decisiones que se aparten del criterio científico.
La Comisión Nacional de los Mercados y la Competencia (CNMC) ha analizado el proyecto de Real decreto por el que se regula la evaluación de tecnologías sanitarias (IPN/CNMC/026/24).
Este proceso abarca desde medicamentos hasta modelos organizativos para la prevención y tratamiento de enfermedades, y debe garantizar decisiones fundamentadas sobre la inclusión, financiación o exclusión de tecnologías en el Sistema Nacional de Salud.
El proyecto integra tanto aspectos clínicos (armonizados por normativa de la UE) como no clínicos (derivados a la competencia de los Estados miembros de la UE).
Análisis y recomendaciones de la CNMC
En términos generales, el proyecto no presenta restricciones injustificadas a la competencia, y se alinea con la necesidad de ofrecer prestaciones médicas avanzadas y asignar de manera eficiente los fondos públicos.
Sin embargo, la CNMC recomienda:
- Evitar duplicidades: Asegurar la aplicación efectiva de los principios de coherencia y no duplicidad de las actuaciones ante las diversas instancias administrativas.
- Motivar decisiones: Reforzar la necesidad de justificar adecuadamente cualquier decisión que se aparte de las evaluaciones científicas realizadas.
La CNMC puede actuar de oficio (de acuerdo con el artículo 5.1.h de la Ley 3/2013, de 4 de junio, de creación de la Comisión Nacional de los Mercados y la Competencia) o a petición de las Cámaras Legislativas, el Gobierno, los departamentos ministeriales, las Comunidades Autónomas, las Corporaciones locales, los Colegios Profesionales, las Cámaras de Comercio y las Organizaciones Empresariales y de Consumidores y Usuarios (de acuerdo con su artículo 5.2).
Documento no oficial, destinado a los medios de comunicación, y que no vincula a la CNMC. Reproducción permitida solo si se cita la fuente
Palestra
UK competition law enforcement: a look ahead
A speech by Juliette Enser, interim Executive Director for Competition Enforcement at the CMA, delivered at King’s College London.
From: Competition and Markets Authority and Juliette Enser
Published 5 December 2024
Location: King’s College London, Bush House, Strand campus, 30 Aldwych, London, WC2B 4BGDelivered on: 4 December 2024 (Speaker’s notes, may differ from delivered version)
Introduction
What is on the horizon for UK competition enforcement as we approach the 25th anniversary of the Competition Act 1998? That is the question I am aiming to answer today. And to do so in the context of what I see as the important drivers for our work: the strategic aims that guide both what we do and how we do it.
Strategic aims
I will highlight 3 key aims that drive our approach to public competition enforcement. The first is the CMA’s role in harnessing the power of competition to drive growth. And in support of that aim, the second is deterring anti-competitive conduct and the third, keeping markets contestable.
The CMA and growth
Turning first to our role in driving growth. Growth is the new government’s top priority; a mission that is supported by a modern industrial strategy. And history and evidence tell us that competition is core to growth. That’s why, in early 2023, we made driving productive and sustainable growth a key pillar of the CMA’s strategy.
But what is the link between competition enforcement and growth? We know that the pressure of competition, and the rewards from success are what drive firms to keep prices low, to innovate and to operate more efficiently. In this way, competition can act as a direct driver of growth. It follows then that competition enforcement can be an important tool for removing barriers to growth, whether through rooting out collusive arrangements that drive prices higher, or supporting innovative challengers by removing anti-competitive barriers raised by powerful incumbents.
To give just one example: in recent years we’ve had a focus on tackling cartels in the construction area, from concrete pipes to demolition services, imposing fines of over £136 million across 6 cartel cases. Our work in this sector directly contributes to ensuring prices for inputs in major infrastructure projects remain competitive.
However, we also recognise that, in some circumstances, collaboration between competitors can be beneficial. For example, when firms work together, they may be able to bring new products to market more swiftly and at a lower cost than when they work in isolation. As such, it is important that the competition regime, and the way we enforce it, does not get in the way of pro-competitive, efficiency enhancing collaboration, a theme I will return to later in the presentation.
Deterring anti-competitive conduct
Given that competition drives innovation, productivity and growth, then my second point is that the CMA’s role in deterring anti-competitive conduct rightly stands at the heart of our competition enforcement activities. With our enforcement work we aim not only to put an end to egregious and harmful conduct, but also to deter others who might be tempted to engage in anti-competitive conduct.
The reason for ensuring our work has a strong deterrent impact is clear. It amplifies the direct impact of enforcement action by preventing further behaviour that is harmful: harmful to customers (whether consumers or businesses), to fair-dealing competitors and to the wider economy.
The behaviour under discussion is also in many cases carried on in secret, making it hard to detect, as well as typically being expensive and time-consuming to investigate, which provides a reason to prevent it from occurring in the first place.
Deterrence comes about primarily through the imposition of punitive fines – with the CMA having imposed penalties of around £600 million in the past decade. But for those who have infringed the law, the consequences of their unlawful conduct do not stop at fines. Company directors are accountable for the conduct of the businesses they run and we have secured the disqualification of 30 directors involved in wrongdoing from holding company directorships or being involved in the management of a company. And going forward, when the Procurement Act 2023 comes into force, expected to be next February, cartelists will face the prospect of mandatory exclusion from future public tenders.
The research is clear that these consequences do have a deterrent impact – the messages about the costs and risks of wrongdoing can be heard far beyond the bounds of any individual enforcement case. That’s why, for me, deterrence must and will always be at the core of our strategic approach to enforcement.
Keeping markets open
This brings me to my third point; keeping markets open. Keeping the door open for rivalry by creating a level playing field is another strategic aim of our work. Competition and contestability are catalysts for innovation, which must be central to growth for any modern economy.
In recent years, much competition enforcement in the UK and internationally has been focused on digital markets where the scope for innovation is clear. For example, last year following investigations we accepted commitments from both Amazon and Meta to address the CMA’s concerns to enable fair competition, helping businesses that rely on these platforms to develop their own customer offerings.
The introduction of the DMCCA next year represents a significant development, ushering in a tailor-made regime, designed to unlock growth and opportunities in the tech sector in the UK.
With the advent of a new regime, I am often asked whether there will be a role for the more traditional competition tools in digital markets. And I can tell you that, when it comes to those firms and activities within the scope of the regime, we expect to use its highly bespoke tool-box, with interventions developed through a forward looking, participative process, providing the predictability that is critically important in these dynamic sectors.
However, this tailor-made regime deliberately applies only to the very largest of tech firms – those with UK turnover exceeding £1 billion – and even for these firms, it only applies to a specific subset of their activities.
At their core, the Competition Act and the DMCC share many aims: they can level the playing field, making sure that markets remain contestable by smaller players, to the ultimate benefit of consumers. However, the DMCC is consciously designed to target a particular type of conduct by a small number of the very largest firms, whereas there is a clear potential for harm in the digital sphere more widely: whether resulting from coordinated behaviour by online retailers or conduct by niche platforms with power in smaller but still significant markets. And while this conduct might not meet the threshold for intervention under the DMCC Act, it is also capable of having a substantial impact on consumers or taxpayers, on businesses and on the wider economy.
To give an example of the type of case I have in mind, in 2022 and 2023 we investigated the conduct of Education Software Solutions Ltd (‘ESS’), a software company supplying a management information system to schools. This software, which allows schools to collate and use student and staff information, is critical to the administrative functioning of schools, and switching to a new provider takes significant time, resources and planning. What concerned us (and, indeed, many schools we talked to) was that ESS was locking schools into longer-term contracts at a time that other cloud-based services offered by competitors were becoming particularly attractive to schools. As a result of our intervention, ESS entered into legally binding commitments which required ESS to give certain schools the choice whether to switch to an alternative software provider. And indeed, when we looked at the market again earlier this year, we found that a considerable number of schools had switched from ESS to new providers since our previous investigation and that ESS’ share of the relevant software market in England was declining.
Other examples might arise from the use of pricing software, an area that I will address below.
What to expect from the CMA
But what does this mean in practice? I have talked about how helping the UK economy to grow is a key strategic aim for the CMA, underpinned by deterring harmful anti-competitive conduct and supporting innovation in emerging markets. But what does all this mean for what we choose to do? And how we choose to do it?
And both of these are critically important questions, particularly when it comes to making an impact within the limits of, broadly speaking, defined resources.
A big part of making a real impact is about choosing the right things to do; which has implications for both how we go about creating a pipeline of cases that we want to investigate and how we effectively prioritise within that pipeline to ensure that what we do tackles the right problems in the right way: in other words how we generate and pursue work that meets our strategic aims. This includes recognising where we can also make an impact through our non-enforcement work, which I’m going to talk about later.
And to illustrate our approach to what we do, I want to talk about 3 separate questions that I think about a lot and have a significant bearing on our pipeline and prioritisation decisions. First, the interaction between public and private enforcement, including when it comes to leniency. Secondly, the areas where we should be focusing our efforts to deliver impact in the near term. And thirdly, when we might need to intervene to support pro-competitive collaboration.
The role of public enforcement
Complaints
So first, when might public enforcement be needed? One of the most notable developments in UK competition enforcement in the last decade is the explosion in what is frequently described as private enforcement: specifically, the enforcement by claimants – typically, but not exclusively, businesses – of their competition law rights, whether in the form of damages or an order of the court, putting an end to anti-competitive conduct. And to my mind this is largely a welcome development. The prospect of paying damages should act as an additional deterrent to engaging in illegal conduct and, where injunctive relief is granted, harm can be brought to an end at relatively little cost to the public purse.
However, there will always remain cases where it is right for the CMA, acting in the public interest, to take action. This may, in the right case, take the form of enforcement, allowing the CMA to impose penalties and with that deter other businesses from participating in similar illegal behaviour, or imposing market-opening remedies that benefit the full suite of actual or potential competitors. In others, our role can take the form of intervention in private proceedings, for example where we believe that there is an issue of importance at stake.
And we are conscious that the public interest in our taking enforcement action to achieve our strategic goals – whether for deterrence or to open markets – may be higher when the CAT’s caseload is under increasing pressure from all directions. And in that context, I would flag that we have interim measures powers that allow us to act relatively quickly to bring anticompetitive behaviour to a close and that we stand very ready to use those powers in the right cases.
Indeed, while the CMA has formally applied its powers under section 35 of the Competition Act by issuing Interim Measures in only one investigation to date (the CMA’s ongoing investigation of the Atlantic Joint Business Agreement between American Airlines and British Airways), we have prepared to issue interim measures in other cases in recent years. However, in the end it has not proved necessary because, for example, the party in question has voluntarily changed its behaviour.
So that means that we actively want to hear complaints from businesses if they are victims of anti-competitive conduct; for example, seeing their efforts to break into new markets or to grow hampered by unfair dealing. Now of course as I’ve already said we can’t prioritise every case that we hear about. But we strive to operate an open and transparent regime. Those who want to know whether we might be interested in taking forward a complaint can take a look at our prioritisation principles and also our annual plan to understand our areas of focus at any one time, whether that be specific sectors, for example, accommodation and food or cross-economy, for example, sustainable and productive growth. And in practice my door is open for those who want an early indication of our likely level of interest in a particular case.
I do not want to leave the impression however that we are just sitting around waiting for ‘victims’ to come to our door, but rather to signal our interest in hearing from businesses about the problems they face. I will speak later about our specific work with public sector procurers. And Sarah Cardell, our CEO, has talked recently about the CMA’s engagement with a wide spectrum of industry and of investors, as we look to understand what their concerns may be.
We also need to recognise that, while generally complementary, there are sometimes tensions between public enforcement and private rights of redress; to the extent that the prospect of paying damages can deter businesses or individuals from cooperating with the CMA. This issue is particularly acute when it comes to cartels, which are rarely brought to light without the intervention of an authority like the CMA (because they are carried out in secret) and where the prospect of private enforcement might deter self-reporting under our leniency programme.
Now the question of the interaction between leniency and damages is a much debated and difficult one. Some argue that leniency applicants should not pay damages, so as to encourage them to self-report. However, any limitation on damages paid by immunity applicants risks under-compensating victims and reducing deterrence. On the other hand, cartels by their very nature are secret, meaning private action is rarely possible without public intervention first.
Consistent with this, the UK department for business received mixed views when it consulted on the question in 2021 and decided to retain the current system at least for the moment (not least to give time for the existing limitations on the liability of immunity recipients to bed in). And indeed, this is consistent with the position in other countries worldwide where immunity recipients do not typically receive full immunity from damages; and there is an argument that it does not make sense to consider the UK system in isolation in this context.
However, what I think it is important to underline while we have the current system, is that the mere fact a business decides not to come forward, does not mean a cartel remains secret, such that no damages will be payable. For many years now, around half of our cartel cases have originated from leniency applicants and this has continued to be a rich source of cases for us, despite the rise of private actions and follow-on damages. The other half has come from a mix of our own detection activity, for example through our informant and whistle-blower reward programme.
And to dispel any misconceptions on this front, our intelligence-led work is not limited to domestic cases. Indeed, it is a sometimes overlooked fact that the case that has spawned so many damages actions – the Commission’s Trucks case – in fact followed hot on the heels of the OFT (our predecessor) launching an own-initiative investigation into… trucks.
And obviously there are severe consequences for those that are uncovered, in penalties, director disqualification and the possibility of debarment.
So our message remains that there are strong reasons for companies to come forward for leniency. And in the meantime, we are in the middle of updating our policy to make it easier for firms to use, by bringing it up to date with developments in policy and practice, and by streamlining our procedures; as well as ensuring it continues to have the right balance of incentives. We will be formally consulting on our leniency guidance in the new year.
Areas of focus
Turning now to our areas of focus for competition enforcement, there are 4 areas of our work that I’d like to talk about. These are public procurement, labour markets and algorithmic collusion when it comes to Chapter 1 enforcement, as well as exclusionary conduct by companies with market power under both Chapters 1 and 2.
I’ve chosen these to talk about, partly because I think they each illustrates how we work to achieve an impact in areas directly related to our strategic objectives; also because I expect they will remain priorities for the near future.
I should however sound one note of caution here: that change can come very quickly when we are talking about priority areas – I don’t think anyone in 2019 would have anticipated that in 2020 we’d have been investigating suspected price-gouging of hand sanitisers! And indeed, one of the hallmarks of the CMA’s work is its ability – with intention and agility – to focus on new issues as they emerge.
Public procurement
Moving on to public procurement, an area which I think illustrates both the strategic approach to pipeline development we have been increasingly adopting, as well as our success in achieving a deterrent impact through strong enforcement action.
I should start by stressing that the CMA generally has a strong track record when it comes to enforcing the law against illegal conduct that has an impact on the public purse.
One example of this is our work in pharmaceuticals, a sector we have made a priority for deterrence because of its impact on the NHS, and ultimately the taxpayer. In relation to just one drug, we found that inflated prices and the activities of a dominant supplier in buying off its competitors, together resulted in NHS spending rising from around £500k per year to over £80m. As well as imposing large fines – in total across our cases in the pharmaceutical sector, this stands in the region of £400m – to act as a strong deterrent to this type of conduct, our actions can clearly be linked to significant savings for the NHS.
We are also actively engaged in work aimed at uncovering bid-rigging in public procurement. Public procurement represents around a third of all public expenditure. The OECD estimates that, where present, bid-rigging may inflate prices by 20% or more. Evidence from around the world suggests it’s highly vulnerable to anti-competitive behaviour. And we know that a significant portion of the UK public sector spend is in areas that are widely recognized as high risk for cartel activity, such as the construction sector.
So, in the last 2 or 3 years we have worked closely with public procurers who can help uncover unlawful conduct, with a view to taking enforcement action. Our outreach work, intended to help potential ‘victims’ of cartel activity to spot and report suspicious behaviour, has so far reached about 80,000 public sector officials, resulting in an increasing number of approaches about suspicious activity. And we also provide advice to government and public authorities across the UK on the design of competitive procurement processes.
Building on this foundation, we see an opportunity to intensify our work in this area in partnership with Government and the wider public sector, by taking advantage of data science techniques, including AI tools. Using the right tools and where the right data is available, we can increase the prospect of detecting unlawful conduct, potentially unlocking further savings and productivity in the public sector. And working with our in-house data team we are well-positioned to do this work.
And, as I said before, when the new procurement regime comes into force, the risks attached to public sector bid-rigging will also increase – with those found to have infringed the Competition Act facing the prospect of being added to the new central debarment register and excluded from all public procurement for up to 5 years
Labour markets
Moving on to the second area I wanted to highlight, labour markets: well-functioning labour markets are of benefit to workers (allowing them to receive a fair value for their work) and to businesses (who can obtain the skills they need to grow at the right price) but also the economy more generally. So as a competition authority, we are concerned if businesses collude to restrict competition between them in labour markets.
Using our Competition Act powers (the same powers we use to address cartels in product markets), we have opened 2 investigations into suspected anti-competitive conduct relating to rates for workers in the sports and non-sports TV production and broadcasting sectors, and broadened one of our other existing cartel investigations to cover suspected unlawful no-poaching arrangements in the consumer fragrances industry. We have also published some high level advice to business about their obligations in this area. While I cannot say much about these investigations now because of the stage they are at, we anticipate that our current and future work in the area of labour should help bring home to businesses their obligations in this area, as well as ultimately helping reduce labour market frictions.
While we are clear in our intent to take action against illegal labour market cartels, consistent with what I’ve already said about not chilling beneficial outcomes, this obviously does not mean the CMA will or should step in to use our competition enforcement powers in every case involving labour relations. For example, as we have already made clear, the CMA does not expect that we will stand in the way of genuine collective bargaining between self-employed workers (including through their representatives such as trade unions) and their employers.
It is also worth noting that restrictive covenants in employment contracts, such as non-compete arrangements between an employer and an employee, are typically a matter for employment law in the UK rather than competition law. That said, they are also capable, like no-poach agreements, of reducing the mobility of workers and hence the reallocation of labour towards more efficient firms. Research carried out by our dedicated Microeconomics Unit on labour markets – part of our policy advisory function – has highlighted that non-compete clauses are quite prevalent across all types of industries, so this is an area we have highlighted in our response to the government’s Industrial Strategy Green Paper delivered last week as potentially meriting further attention.
Pricing algorithms
This brings me on to one of the most far-reaching developments we are all facing, in all aspects of our lives, and that is the implications of the use of algorithms and pricing algorithms in particular. Pricing algorithms are tools that are used by firms to help them set prices, whether online or in the real world. And they are tools that are capable of having significant benefits as was highlighted in the research we published in 2021. These can include more intense competition, lower costs for businesses and faster changes in prices to better match demand and supply in markets.
But there is also a risk that pricing algorithms result in poor outcomes, and in particular that these tools result in prices that are higher than they should be, to the detriment of customers and ultimately the wider economy. This could happen, for example, when the algorithm acts as a conduit for exchanges of strategic information or where price monitoring software is used to ‘police’ an illegal arrangement. Whether there is a problem depends on the market in question, as well as the tool and how it is used, but the rapid adoption of these tools means they are an area of increasing focus not only for the CMA but also for authorities globally.
Last month we published a blog to help businesses – both users of algorithms and also providers – to stay on the right side of the law when they use a pricing algorithm to set prices. We did this because we want both to support those businesses who want to do the right thing – which we know is the majority – but also to highlight to the businesses involved, the serious risks of enforcement action if they don’t take care with how they use their tools. And to explain to those who think they may have broken the law or witnessed others doing so, how they can report the matter to the CMA and the incentives for doing this, whether that be in the form of leniency for participants or monetary rewards for whistleblowers.
This blog builds on our Horizontal Guidelines published last year and includes 2 high level principles:
- at a minimum, if a pricing practice is illegal when implemented offline, there is a high probability that it will also be illegal when implemented online
- businesses involved in illegal pricing practices cannot avoid liability on the ground that their prices were determined by algorithms. In the same way that an employee or an outside consultant working under a firm’s “direction or control”, an algorithm remains under the firm’s control, and therefore the firm is liable
More generally, in partnership with our in-house data and technology teams we are keeping a close eye on developments in this space, given the growing use of algorithms and AI across the UK economy. Ultimately, we want to help support innovation and growth in this space, while retaining the rivalry that lowers prices for consumers.
Exclusionary conduct
Finally, in terms of priority areas, I wanted to return to the issue of exclusionary conduct. I have already talked about how our work can help preserve competition in digital markets.
But we are also keen to protect competition in other markets, keeping them open so that customers can benefit from enhanced competitive rivalry and businesses can compete on a level playing field. Our work in the EV charging markets is a good example of this, cited in our recently published Industrial Strategy Green Paper response. In 2022, following a Competition Act investigation, we accepted commitments which addressed the CMA’s concerns about long term exclusive arrangements for the supply of EV chargepoints on or near motorways. That investigation followed a market study which made a suite of broad recommendations about how to promote competition to unlock investment in these markets.
And just yesterday we published an open letter to local authorities and public transport bodies supporting suppliers of EV charging infrastructure, which feature advertising screens. In particular, we have made it clear that they are not prevented from offering on-screen advertising by agreements between local authorities and JCDecaux, one of the UK’s largest suppliers of street furniture-based advertising. By intervening in this way, I hope we can further support the roll out of EV charging points.
Pro-competitive collaborations
In this last section, I want to touch on a part of our work that perhaps gets less attention – ensuring that our enforcement work does not have chilling effects on pro-competitive collaborations between competitors.
The Competition Act prohibits anti-competitive agreements, but it still allows cooperation to drive innovation or other economic benefits, in certain circumstances. And that is important particularly important when we are thinking about how the CMA’s work can boost economic activity, including growth in the green economy.
We published the Green Agreements Guidance in October last year for all companies who are considering collaborating so they can understand how to work towards green goals without breaking the law. The guidance goes further than before – it gives firms greater comfort about when agreements that genuinely contribute to addressing climate change will be exempt from competition law. And our open-door policy means we can work with companies to give them tailored informal guidance on how they can work together to boost the green economy. Our first year of operating this policy has demonstrated that there is an appetite there for this type of assurance – we’ve had approaches about a dozen projects of which 2 have already resulted in published informal advice.
Perhaps less well-known but equally important is our work on competitor collaborations in the pharmaceutical area, where we have worked in close collaboration with public health bodies to clarify where and how competing drug firms can work together on combination therapies for the treatment of serious conditions.
Now it is important to sound a note of caution here: our intention is not to start providing bespoke legal advice on every agreement – to return as it were to the days of a notification regime. That would certainly not, to my mind, be a sensible use of taxpayer’s money. Nonetheless, I think our track record demonstrates that where we are convinced on the evidence there is a real risk that, absent our providing appropriate comfort, the economy will lose out on beneficial collaboration then we are prepared to act.
How we do our work
As well as what we enforce, I am very conscious that how we enforce law is equally if not more important. It matters to our stakeholders: to businesses under investigations, to their customers and suppliers, and to competitors seeking a level playing field. But it also matters a great deal in terms of our ability to deliver impactful outcomes that make a real difference to people, businesses and the economy.
Pace
Chief among the issues we contend with under this heading must be the pace at which we act. And I should emphasise that when it comes to speed, our interests as the CMA are very much in tune with those of the wider stakeholder community. It’s a fairly simple proposition, but also one that is at the heart of my thinking on how we should approach our work: if we complete cases more quickly, we can turn to the next matter in our (busy) pipeline of cases and increase the volume of our casework – increasing our overall deterrent impact.
And the need for speed will also soon be backed up in law: with the new duty of expedition within the DMCC.
At the same time, it is important that investigations are carried out with due process, that we do not jump to conclusions, that we listen to the businesses under investigation if they challenge our provisional conclusions. That all takes time. However, in cases where a business does not want to contest a case, we have a range of options to put the matter to bed without going through the full process. But this comes with an important caveat, which is that the resulting outcome must remain in the public interest, including the need to ensure that harmful behaviour is deterred. In practical terms, this means that when it comes to the most egregious behaviour, we are unlikely to walk away, simply with a promise to do better in future.
Effectiveness
With a view to increased pace and effectiveness, my colleagues and I are always on the lookout for how we can better take advantage of technological developments to improve and hasten our processes. This includes for example harnessing the considerable skills and experience within our in-house data team to develop bespoke tools based on GenAI that can be used to enhance our evidence review processes as well as to help detect anti-competitive conduct from publicly available data.
On the subject of how we can be more effective in our work, I should also mention that the DMCC will bring us some enhanced powers of investigation. This includes stronger powers to take action against those who destroy material relevant to our investigations, a power we see as particularly important given the nature of modern communication and the prevalence of remote working.
Partnering
It is almost a truism that we can achieve more by working together and that certainly is the case for competition enforcement.
I have already in this speech referred to the strong internal partnership between the CMA’s competition enforcement staff and our data scientists; and how the goals of our advisory teams (whether on the procurement side or the labour side) chime with those of our competition enforcement work.
Equally, we are looking increasingly to strengthen our partnerships externally, whether with potential victims like public or private procurers or other enforcement agencies like fraud teams or specialist regulators.
And what is true domestically also holds true internationally. As I’ve already mentioned, we operate in global marketplace. And Brexit has seen us take on more large-scale, complex cases where the businesses under investigation and the conduct we are investigating may have taken place, at least in part, elsewhere. It has also seen us deepen and extend our cooperation with other authorities, whether that be in relation to know-how sharing or cooperation on specific cases. In recent years many of our investigations have been opened at the same time and in consultation with other agencies, like the EC and the US DOJ. And most recently the Government has concluded negotiations on the UK-EU Competition Cooperation Agreement which will allow for closer cooperation not only between the CMA and the European Commission but also with our counterparts in the EU Member States. In addition, the DMCC will strengthen international cooperation once it comes into force. First, it will enable the CMA to use its formal investigative powers – including in respect of cartels – to provide investigative assistance to agencies outside of the UK that have reciprocal rules. The DMCC Act will also simplify the process for the CMA to share information with international counterparts where there is a cooperation agreement in place.
Now of course this does not mean that we will be neglecting to tackle conduct with a more localised impact, and much of the conduct that I’ve talked about – in labour markets and in public procurement – is largely national or even local in nature. But equally, we recognise that when it comes to conduct that takes place across borders but which harms UK consumers – like cross-border cartels – then cooperation is and will remain an integral part of the way that we work.
And finally, of course, we don’t always need to pursue an investigation to achieve a positive outcome for consumers or to change behaviour.
We already make use of warning and advisory letter sent to businesses throughout the UK, alerting them that they may need to change their business practices to comply with the law and setting out the risks if they fail to do so. Indeed, we sent over 500 such letters in the period 2018 to 2023. And as we did in the outdoor advertising matter yesterday, we may publish an open letter where we think there is a wider public interest in understanding our expectations of businesses. These so-called soft tools can therefore allow us to make a real difference and to do so at pace and with agility.
This is on top of the work we do to advise and inform businesses more generally as to their obligations – such as the advice to employers or the algos blog I’ve talked about or the work. And, as I’ve also highlighted, in making businesses more aware of our areas of focus, we can also encourage reporting, so these publications also serve a dual purpose of driving our pipeline. And by making businesses aware of our completed enforcement cases and the serious consequences for the businesses and individuals involved, we can also amplify the deterrent impact of our work.
As such, these ‘tools’ have the potential to play an important part in achieving impact. That said, I firmly believe that enforcement – with its deterrent impact – will and must remain at the core of what we do.
Conclusion
I hope I have left you with a sense of where the CMA might be heading in the coming years when it comes to enforcement. But more than that, I hope I have given you some sense of the excitement I feel when I survey the landscape about the ability of competition enforcement to adapt with the times: whether that be through the tools we are using or in our areas of focus. All the while still staying true to the CMA’s core mission to promote competition for the benefit of people, businesses and the UK economy.
Updates to this page
Fonte: CMA
Atos de concentração – Decisões
CMA
- The CMA is investigating the anticipated joint venture between Vodafone Group Plc and CK Hutchison Holdings Limited concerning Vodafone Limited and Hutchison 3G UK Limited.
- The Competition and Markets Authority (CMA) is investigating the completed acquisition by GXO Logistics, Inc. of Wincanton Plc.
- Proposed commitments would ensure the merger boosts competition in UK telecoms with rollout of 5G connectivity
Autorité de la Concurrence
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Distribution
Décision de contrôle des concentrations|
Publication du sens de la décision le : 06 décembre 2024
Secteur(s) :
Décision de contrôle des concentrations|
Publication du sens de la décision le : 05 décembre 2024
Secteur(s) :
Décision de contrôle des concentrations|
Publication du sens de la décision le : 05 décembre 2024
