Antitrust Law Daily Wrap Up, ANTITRUST NEWS: CMA general counsel discusses agency’s enforcement priorities, approach, (Feb 23, 2016)

By Michael Menzhuber, J.D., LL.M.

Sarah Cardell, General Counsel for the Competition Market Authority (CMA), discussed the agency’s progress in its competition work, as well as its challenges and opportunities, in a February 23 speech at the IBC UK Competition Law Conference 2016 in London.

In considering the progress of the CMA over the past two years, Cardell focused on three main aspects: (1) the CMA’s priorities in 2016 and they are reflected in its work; (2) what the CMA has learned from recent litigation challenges, which raised issues of pace and process; and (3) how and why the desire for more effective enforcement is something that everyone can play a part in.

Cardell stated that a recent National Audit Office (NAO) report, after highlighting the CMA’s significant progress in improving the UK’s competition regime, noted the need for increased case flow in the enforcement of competition. According to Cardell, the challenge to increase pace without compromising quality is recognized across the CMA.

She discussed how, from an organizational perspective, careful thought has been given to best delivering legal advice to the CMA to achieve this twin objective. Cardell then discussed two CA98 infringement and penalty decisions, issued last year, which demonstrated the balance the CMA was trying to strike and on which it plans to build as it progresses the new cases that have been opened.

The general counsel explained that, while the settlement of the cases clearly delivered efficiencies for both the CMA and the parties involved, not all cases will be appropriate for settlement. She then identified factors it would consider in determining whether settlement was appropriate in a case.

After stating that expedited processes should not come at the cost of robustness, Cardell discussed the value of robust decisions, as well as the importance of Case Decision Groups (CDG), as the final decision makers in all competition enforcement cases (other than those involving settlement and commitments).

Cardell explained how litigation interacts with pace and rigor. She noted: (1) the value of the court’s role in clarifying important points of law: (2) how the guidance provided can help to ensure that the CMA does not compromise fairness and rigor in its work; and (3) the hope that not compromising fairness and rigor will result in fewer successful appeals of its decisions.

She stated that businesses involved in a CMA investigation can benefit from quick resolution by providing information to the CMA. The official discussed the agency’s approach to determining whether a case is right for commitments and whether commitments are right for a case. Cardell concluded by observing that the CMA would continue to focus on swift and effective enforcement and on seeing through the work that it has started.

News: Antitrust