The UK Competition and Markets Authority (CMA) has announced it
has reached a settlement agreement with an association of estate
and lettings agents, three of its members, and a newspaper
publisher regarding UK competition law breaches between 2005 and
2014. The enforcement action marks this newly-formed
authority's increase in planned activities against
anticompetitive "cartel" conduct in both local and larger
markets.
The CMA is the UK's primary competition authority with
responsibility for investigations into mergers and markets and the
enforcement of competition and consumer law. It has been operating
since 1 April 2014 when it took over the responsibilities and
functions of the Office of Fair Trading (OFT) and the Competition
Commission. This also is the first time that the CMA has reached a
settlement in an antitrust investigation. The companies involved
have agreed to pay fines totalling over £775,000 (US$1.15
million).
While the fines in this case do not themselves appear significant,
the CMA has the power to fine businesses 10% of their global group
turnover for competition law breaches. But this case is notable as
an indication of the CMA's ambition to be more active in
relation to cartel enforcement compared with its predecessor, the
OFT, including clamping down on smaller, regional breaches of
competition law in the UK as well as the higher profile national
cases. Since it acquired its powers last year, the CMA has opened
four new investigations into suspected competition law breaches,
bringing the total number of ongoing cases to ten. In comparison,
in its last year the OFT commenced just one such investigation.
Notably, four of the investigations being pursued by the CMA
involve criminal prosecution of cartel offenses, and two
individuals will stand trial in June 2015 (this will be the first
criminal cartel trial since the collapse of the trial of three
individuals in the British Airways/Virgin Atlantic price-fixing
case in 2010).
Background
Three Counties Estate Agents Association is a trade association
of estate and lettings agents (known as real estate brokers in
other countries). Three of its members are Waterfords Estate Agents
Limited, Castles Property Services Limited and Hamptons
International. The other defendant was Trinity Mirror Southern Ltd,
which publishes a local newspaper, the Surrey and Hants Star
Courier. The CMA issued a Statement of Objections against Three
Counties and Trinity Mirror in December 2014, indicating its belief
that the parties had breached the Competition Act 1998, which
prohibits anticompetitive agreements in the UK.
The three estate agents had entered into an agreement that
prohibited members of the association (including themselves) from
advertising their fees or discounts in the Surrey & Hants Star
Courier. Additionally, Waterfords Estate Agents and Hamptons
International had also agreed with the newspaper that any estate
agent, whether or not a member of the association, would be
prevented from advertising their fees or discounts in the
newspaper. This agreement was reflected in the membership rules of
the association.
The companies involved all admitted the allegations and agreed to
settle with the CMA in order to bring the investigation to an early
conclusion. According to the terms of the settlement, the companies
agreed to the following fines: Castles Estates £19,275;
Hamptons International £690,317; Waterfords Estates
£51,693; Trinity Mirror Southern £101,397; and Three
Counties Estate Agents Association £100. These penalties were
further reduced by an early settlement discount of 10% provided the
companies meet the agreed settlement terms. In agreeing the
settlement for the trade association, the CMA took account of its
very limited financial resources and low profitability during the
period the anticompetitive practices took place.
Outlook for Future CMA Enforcement
In announcing the fines, the CMA stated, "This case again
demonstrates the CMA will take action in local markets as well as
big national ones. It also shows that, where infringements take
place within the context of trade associations, both the members of
the association and the association itself can be found to have
breached the law. This can result in severe financial penalties for
the members, even where the association itself has limited
funds."
This latest decision may be of particular interest to trade
associations, whose activities can fall within the scope of UK
competition law, particularly where the association facilitates or
acts as a conduit for agreements among its members. The CMA's
predecessor competition authority only once found against a trade
association. In 2003, the OFT found that the Northern Ireland
Livestock Auctioneers Association had breached competition law.
However, due to the difficult conditions in the cattle market
following a foot and mouth outbreak, the OFT did not impose a
financial penalty on the association. In contrast, the CMA has
signaled that it will not hesitate to take action against trade
associations that are involved in breaches of competition law. The
penalty imposed on the estate agents' trade association was
nominal. In the future, we would expect trade associations and
their members to receive higher fines now that the CMA has served
notice of its intent to take a stricter approach.
The CMA is keen to exercise its enhanced powers to enforce
competition law more rigorously within the UK and at levels of the
economy that have previously not seen as much enforcement activity,
in particular, in small, local, or regional markets. Companies and
trade associations should be aware they may be targeted for
activities the CMA's predecessor may not have regarded as a
priority for investigation. The CMA believes that these cases will
send out a strong deterrence message to other parts of the economy
about the need for competition law compliance. In particular, the
CMA went on to signal that, following other complaints it had
received, it was considering commencing investigations into
potentially similar conduct between other estate agents and local
newspapers unless those businesses take action to remove the
relevant restrictions.
Although the full text of the CMA's decision will not be
published until April, its press release is here. CMA has published an Annual Plan for
2015/16, which can be found here. CMA's Guidance on Competition Law
for Trade Associations is here.
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