In March 2022, the CMA launched an investigation into suspected Infringements of UK competition law in relation to the take-back, dismantling and recycling of end-of-live vehicles or ELVs (i.e. those categorised as waste due to being written off due to age or accident) and involving vehicle manufacturers and some industry bodies. Manufacturers are subject to regulations regarding the disposal of ELVs in a sustainable way and requiring them to offer a free recycling service to their customers. This investigation is in parallel to one launched on the same day by the European Commission, with whom the CMA is ‘working closely’ and, thus, an example of parallel investigations post-Brexit. The CMA has made clear that it has reason to suspect that important aspects of the suspected anti-competitive arrangements were agreed outside the UK and then implemented in the UK. The CMA’s investigation is ongoing with an updated expected in July 2023.

In the meantime, the CMA has announced the imposition of a penalty on BMW AG (the BMW Group is one of the manufacturers under investigation) for failing, without reasonable excuse, to comply fully with a s26 Notice, a formal request for the provision of documents and information by a specified deadline. Currently, such failure to comply is subject to a maximum fixed penalty of £30,000 and a daily rate of £15,000 which the CMA has decided to impose in this case (new penalties are expected under the anticipated Digital Markets, Competition and Consumer Bill). BMW AG had contended that the CMA was acting ultra vires in seeking the document production under the s26 Notice as it is a company incorporated and situated outside of the UK and the relevant information and documents are located outside of the UK. Thus, its position has been that it had a reasonable excuse for not responding and that the CMA was also acting ultra vires in seeking to impose a penalty on a non-UK domiciled company.

BMW AG is appealing the CMA’s fining decision in the Competition Appeal Tribunal.

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