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#NotMyBrexit and Competition Law

The last few days have been whirlwind of bad news and questionable choices. Both major UK political parties are in disarray, and the only forceful political voice with a clear way forward comes from the SNP.

It will be of no surprise to anyone that I supported Remain. My support was with a heavy heart; not because I have less than full support for EU Membership, but because the campaign itself was woeful. There was a failure to make a positive case for EU Membership – no doubt because the Tory leaders of the Remain campaign had taken every opportunity to blame the EU for all the UK’s ills in the decade before the referendum.

We can see now that what Leave dubbed as ‘Project Fear’ is becoming ‘Unfortunate Reality’. The consequences of a political decision to leave the EU will be dwarfed by the consequences should we ever actually do so.

The only chink of light going forwards is that the UK has not yet decided to Leave the EU, never mind the more consequential step of notifying the European Council of its formal intention to do so, thereby triggering the withdrawal process under Art 50 TFEU. As there appears to be no ‘Plan A’ for the UK’s post Brexit engagement with the EU 27 I cannot see how there can be any desire for the UK Govt, who exercise such Prerogative powers, to rush towards triggering Art 50, even if they can come to a decision whose hand should be on the tiller.

I that time I hope there is the opportunity for Parliament to exercise its sovereignty and exercise control on the Govt to avoid any rash steps, driven by the internal division within the Conservative Party, that would put the UK’s trading relationship with the rest of the EU in jeopardy. It is perhaps difficult after the tumult of the last few days to hope that wise heads might prevail, but I still hold that hope.

As to competition law I am more optimistic. In substantive terms I don’t think that there would be desire, even from the most ardent Europhobe, to address the EU’s influence on competition law as one of the 1st pieces of UK reform; there are far more obvious areas where de-regulation might be more appealing. Given the CMAs position in relation to competition policy I also see limited internal push for the UK reforms; although there is perhaps reason to think that the formalistic line taken by the CJEU in relation to Art 102 TFEU, might not be followed so slavishly by the CMA and the UK Court’s if they were freed up from s 60 of the 1998 Act. There are larger questions surrounding the UK’s continued participation in the EU Merger Regulation and within the ECN should the UK leave the EU. While the substantive rules in mergers or antitrust may be very similar in in the UK and EU the loss of effective cooperation between the CMA, DG Comp, and the 27 NCAs will reduce the effectiveness of competition law enforcement across the UK and the EU 27. The loss of the UKs voice in competition policy debates within DG Comp and the ECN could lead towards  a more interventionist stance in EU policy; which would , rather ironically, potentially impact on the the activity of significant UK firms in vital EU markets.

I hope the UK will continue to have a good trading and competition law enforcement relationship with the rest of the EU for a long time coming. I’m not ready to file away my copy of the Treaty quite yet.

For a video that explains the impact of Brexit on Competition Law from Oke Odudu, see:

https://youtu.be/MXWth0e4whQ

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