THE UK PRIME MINISTER, THERESA MAY, HAS ANNOUNCED THAT THE TIME FOR TRIGGERING ART. 50 OF THE LISBON TREATY IS DRAWING VERY CLOSE.
Art. 50 states that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”, and “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.
Since the agreement that will be negotiated has to be approved by the UK Parliament, the Council and the European Parliament, it is likely that the UK will leave the EU in mid 2019.
The implications of Brexit for Competition Law enforcement are still unclear. Focusing on its effects on merger control it may be observed that, for the time being, operations with a community dimension are cleared by the EU Commission on the “one stop shop…” basis, whilst operations that do not reach the thresholds for a community dimension are dealt with by the national competition authorities. It is therefore clear that, from about the end of 2019 when Brexit takes effect, merger clearance, even for operations with a community dimension, will need to be granted by both the EU Commission and the UK Competition and Markets Authority (CMA).
Doubtless, the EU Commission and the CMA will have to find a way to cooperate in order to avoid negative effects. First of all, it could happen that the conclusions of the two authorities following their analysis of anti-competitive effects of a particular operation may differ; a further negative effect would be if a complete duplication of work were necessary, such as if a phase 2 investigation had to be opened.
Furthermore, the ECN – European Competition Network, that was established pursuant to Council Regulation 1/2003, will exclude UK from Brexit onwards with the immediate consequence that, in theory, no further cooperation and exchange of information (that in many occasions determined a common view of the cases to be cleared), can be expected.
So future cooperation between the UK and the EU should also address possible future amendments to existing legislation. Without such co-operation, what is now considered as a normal way enforce antitrust law, i.e. having substantially similar legislation on the subject, could well change.