Much of the speculative commentary on Brexit and its
implications for competition law has adopted "a business as
usual" analysis. It is said that we are bound to follow EU law
while we are members and that it is likely that competition law
based on the EU/EEA model will kick in once we leave –
subject to obvious changes on merger control etc. As we shall
see, this analysis is not quite right.
One of the distinct features of EU competition policy, apart
from its "single market" goal, was, and is, its
embodiment of other public policy objectives. These include
environmental, health, social, labour and cultural
objectives. In seeking to balance these objectives with
competition policy, the European Court of Justice has held that
public health outweighed competition considerations, that ethical
standards outweighed them too and that the administration of
justice also outweighed them. (See Meca Medina, Laurent
Piau & Wouters)
Back in the day, when the Competition Bill was going through
Parliament, Lord Simon the Government spokesman said that
"The Commission has to take into account a wide range of
counter-vailing benefits when making decisions under Article 85
(now Article 101 TFEU). In particular, the Commission has taken
into account the public health benefits of agreements when reaching
decisions. However the issue goes wider than public
health. The Commission has for example taken into account the
environment benefits of agreements. It is clear that under
the Bill the Director General (now the Competition & Markets
Authority) can be expected to do likewise and to form the same
judgments against the body of law that I have mentioned which have
existed in the interpretation by the Commission under Article
85" (now Article 101 TFEU).
Lord Simon supported his view by reference to the written
opinion of Professor Richard Whish. Subsequently however, the
European Commission (but not the European Court
of Justice) and the UK competition authorities have not given such
weight to public policy (unlike the Dutch Competition Authority for
example). Few decisions if any can be cited which show that
the UK authorities have adopted a broader approach balancing other
policies with competition. Indeed, Lord Simon seems to have
been forgotten and key policy makers consider that it is preferable
if UK competition law follows a sole "consumer
welfare" goal. "Consumer welfare" is a more
strictly economic approach and has certain aspects in common with
the Chicago School of Economics. It is a narrow and hard
edged approach that in some cases may conflict with the other
policy considerations to which the European Court of Justice
has given precedence.
To the extent that the sole goal of "consumer welfare"
is applied in practice and other objectives are ignored or
overridden, the UK is out of line with its obligation under the
Competition Act 1988 – which is to follow decisions of the
European Court of Justice. Arguably, this makes the UK
already semi-detached from its European 'parent' whose
policy was informed right from the beginning by the belief that
there should be a market economy with a safety net which would
allow other wider public policy considerations to be taken into
In recent years, the need for a serious competition policy has
been bipartisan in the UK without much debate on what that might
actually mean. This is likely to change once it becomes clear that
actually Brexit will provide an opportunity for a government of the
day to rid UK competition policy of public policy objectives
identified by the European Court of Justice. If say, a Conservative
government does so, this won't be an enormous change because
arguably it has been made already on the quiet. But it will
at least be explicit official and formal; hopefully its
prospect will trigger some debate before the next Election –
at which point others might take a different view.
1 For an early description of the EU's unique approach,
see "Competition Policy in the 80's more policy less
competition?". Stephen Hornsby ER Rev 79-101.
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