This report is provided by BRC Associate Member, CMS.

__________________________​

Price fixing, resale price maintenance and information exchange are areas that the CMA has focused on in the consumer and retail sector.

The UK’s Competition & Markets Authority (CMA) can investigate any business operating in the UK, even if you’re a business head quartered outside its borders.

In a first-of-its-kind report, the CMS Antitrust, Competition and Trade team has completed a rigorous analysis of competition enforcement in the UK, analysing all 164 CMA competition law decisions under the Competition Act 1998 and all the appeals to the Competition Appeal Tribunal.

The consumer and retail sector has seen the highest number of investigations (29% – including those that are still ongoing), reflecting the regulator’s focus on markets and activity that directly affect consumers. This is not surprising, as the CMA prioritises action that directly prevents consumer harm. The consumer and retail sector is also at high risk of whistleblowing and media scrutiny, which may result in the CMA being alerted to agreements or conduct that merit investigation.

Highlights for BRC members include:

  • Roughly 50% of the cases in the sector have resulted in infringement decisions
  • The remaining 50% of the cases are split between commitments decisions, no issues findings and closures without decisions.
  • Price fixing, resale price maintenance (RPM) and information exchange have been the main areas of focus.


The report by CMS has exposed some fascinating trends in how the CMA operates, including:

  • 68% of all infringement decisions involved a dawn raid. More domestic raids are likely as more people work flexibly and the CMA uses its powers to search for documents held away from the office.
  • The CMA is now considering director disqualification measures in every case it investigates, and the CMA has pursued director disqualification in the High Court or secured a CDU in 18% of cases (and in 29% of cases begun since 2016).
  • In almost three quarters of cases resulting in an infringement decision, parties benefitted from leniency and/or settlement.
  • Leniency and settlement procedures are not just hypothetical tools in the CMA’s enforcement toolkit. There can be substantial benefits in pursuing these routes during an investigation.
  • Over a third of the CAT appeals brought against CMA decisions have been successful, with another third of appeals being partially successful.
  • If companies and their advisers think that they have a strong reason to appeal against a CMA decision they should not shy away from doing so. The CAT has demonstrated that it is willing to rigorously test the CMA’s findings.


The data-driven analysis provided in CMS’s report will help BRC members to understand their level of risk, plan strategies for responding to an investigation and ensure that their people know how to respond. But what does the future of competition law enforcement look like?

Continued focus on e-Commerce

Since the CA98 came into force nearly 25 years ago, there has been a steady stream of cases focusing on competition restrictions within e-commerce including bathroom fittings, mobility scooters, musical instruments and sports equipment.

Investigations have focused principally on online RPM practices, with a few investigations relating to online sales bans and online price fixing. Whilst there is some recently introduced flexibility for businesses, the CMA is likely to continue to prioritise enforcement in e-commerce.

The CMA has rolled-out a digital data monitoring tool, which it has used in the musical instruments sector to monitor price levels automatically following RPM investigations in this industry. This tool, coupled with the CMA’s annual plan for 2024/2025 announcing the regulator’s intention to expand its use of data, technology and AI, will potentially result in the CMA conducting a greater number of investigations in respect of e-commerce.

Heightened focus on labour markets

The CMA has recently identified the protection of competition in labour markets as an enforcement priority – an area that might be considered to align with the “hipster” competition law movement. Over the past two years, the CMA has initiated investigations into the purchase of freelance staff supporting the production and broadcasting of sports and non-sports television content in the UK. Most recently, in January 2024, a cartel investigation into the fragrances sector was expanded to cover suspected no-poaching arrangements. In fact, competition authorities across the globe are increasingly focused on employment and labour markets.

Going green

Green agreements and issues relating to environmental sustainability are increasingly on the CMA’s radar. Supporting the transition to low-carbon growth has been, and continues to be, a strategic priority for the CMA. The CMA has announced in its most recent annual plan for 2024/2025 that it is committed to helping accelerate the UK’s transition to a net zero economy and to promoting environmental sustainability.  Agreements intended to facilitate the move to net zero will be looked at favourably even if they involve some degree of cooperation between rival companies.

In conclusion

Compliance with competition law is critical for retailers given their consumer facing businesses – the CMA will not hesitate to take action in this sector if it considers customers are suffering from higher prices or lack of choice and innovation. The CMS competition team is here to assist companies seeking to ensure competition law compliance by putting in place training and guidance for companies of all sizes.

Meanwhile if you would like to read it, you can access the full report here: Decoding CMA and CAT decisions - UK competition law enforcement report

Decoding CMA and CAT decisions - UK competition law enforcement report