Competition law

Horizon scanning

One year in: the evolution of competition law enforcement under the new Labour government

In January 2025, the government surprisingly removed Marcus Bokkerink as Chair of the Competition and Markets Authority (CMA). He had chaired the CMA since 2022 and was replaced on an interim basis by Doug Gurr, director of the Natural History Museum and former Country Manager of Amazon UK. Bokkerink's departure was a rare example of direct political intervention in UK competition policy. The government justified the removal on the basis that the CMA was failing to deliver on its mandate to support the UK's growth strategy.

Prime Minister Keir Starmer singled out the CMA in his speech at the International Investment Summit on 14 October 2024, noting that the CMA had to "[take] growth as seriously as this room does". In recent years, the CMA has been criticised for taking an aggressive approach to competition law enforcement. For instance, in 2023, Microsoft's vice chair and president, Brad Smith, criticised the CMA after it initially blocked Microsoft's acquisition of Activision Blizzard. Smith considered the CMA's decision had a far

broader impact than the context of the acquisition alone, sending a message to the international community which would discourage innovation and investment in the UK, particularly as the acquisition had been approved in the EU and US.

The CMA eventually approved the $69bn (£56bn) deal after Microsoft was required to offer remedies. Although the government intervention was unexpected and criticised in some quarters, it is a sign that the new Labour government is seeking to encourage international businesses and investment communities to do business in the UK.

The government recently published its strategic steer to the CMA, setting out the regulator's key role in upholding and promoting the UK's reputation as "a centre for certain, proportionate and transparent regulation".

To achieve this objective, the government is actively encouraging the CMA to prioritise pro-growth and pro-investment interventions, focusing on markets and harms that particularly impact UK-based consumers and businesses.

Merger control

One way the CMA is delivering on the government's mandate is through its "4Ps" framework, which covers: pace, predictability, proportionality and process. These underlying principles are designed to transform the CMA's current processes, particularly in relation to merger control. The CMA's new Mergers Charter, published in March 2025, also employs the 4Ps framework as the underlying principles for constructive and direct engagement with businesses during merger reviews. Further, the CMA is currently conducting a review of its approach to merger remedies.

The purpose of the review is to ensure that the regulator is applying effective remedies in line with the government's pro-growth and pro-investment mandate. This means considering circumstances where behavioural remedies may be appropriate, how remedies can be used to preserve pro-competitive effects of a merger and how to make the process of assessing remedies more efficient.

Investigations

In a recent speech, Juliette Enser, Executive Director for Competition Enforcement, explained how the 4Ps framework informs the CMA's approach to competition enforcement:

pace: Enser referenced the regulator's new statutory "duty of expedition" under the Digital Markets, Competition and Consumers Act 2024, which it seeks to meet through continued investment in technology to speed up processes and its streamlining of investigations and decisions

proportionality: the CMA is focused on achieving the right suite of interventions, balancing circumstances where softer tools or consensual outcomes are more appropriate, with circumstances where substantial fines ensure the deterrence impact of the regime. Further, the CMA is focused on delivering on three proportionality commitments, namely: (i) only opening a formal investigation where it considers it warranted by the expected impact, and weighed against the risk and resources involved; (ii) committing to closing investigations or scoping them more narrowly where it is proportionate to do so (eg by reducing the number or parties or the relevant time period investigated); and (iii) putting matters to an end by consensus without undermining the deterrence impact of the regime (eg through settlement or commitment procedures)
predictability: Enser used the Green Agreements Guidance, which includes accessible advice and the CMA's open-door policy, as a benchmark for the CMA's objective to make its processes and decisions more predictable for businesses and other stakeholders

process: The CMA is focusing on two areas of engagement with businesses and other stakeholders, namely its leniency programme (which is undergoing public consultation) and a new "Complaints Charter" intended to make the CMA's complaints process more accessible and predictable.

Why does it matter?

The government's strategic steer is arguably the most marked political invervention in UK competition policy in recent decades and the message seems to be clear – restore international confidence in the UK as a competitive market to conduct business. The CMA has moved quickly in the past few months to deliver on this mandate, conducting major overhauls of its merger control and competition investigations regimes.

What action should you take?

Businesses and other stakeholders can expect a more engaged and transparent regulator. Companies considering transactions that raise potential competition issues in the UK, may now find a regulator more ready to engage to find practical solutions. However, this new approach will not deter the CMA from taking appropriate enforcement action. Companies should therefore remain vigilant as regards competition law and seek guidance as required.

Tom McQuail
Partner
+44 7561 104098
tom.mcquail@rpclegal.com

Mariyum Mahmood
Associate
+44 20 3060 7327
mariyum.mahmood@rpclegal.com

Recent developments

Employers, HR and resourcing teams beware

Anti-competitive behaviour in labour markets has become more of a focus of the Competition and Markets Authority (CMA) in recent years (a key area in its 2023/24 Annual Plan). This has been highlighted by the CMA's first infringement decision in this area and its intention to publish further guidance for employers on avoiding anti-competitive behaviour in labour markets "in the coming months".

In early 2023, the CMA published a guide for employers on how to avoid infringing UK competition law, highlighting three main categories of anti-competitive conduct:

no poaching agreements: at least two businesses agree not to approach or hire each other's employees (or not without the other's consent)
wage-fixing agreements: at least two businesses agree to fix employees' wages or other benefits

3. information-sharing: exchange of
commercially sensitive information
regarding wages, benefits and other terms
and conditions offered to employees.

The CMA made clear that this guidance applied to hiring freelancers and other contracted workers, as well as salaried employees.

In early 2024, the CMA's Microeconomics Unit reported on trends in the UK labour market, focusing on the impact of competition and employer market power.

The CMA issued its first labour markets infringement decision, announced in March 2025 and published in April. This related to anti-competitive arrangements involving competitors (namely, Sky, the BBC, BT, IMG and ITV) in the purchase of freelance services supporting the production and broadcasting of sports content, such as major football games and rugby tournaments.

The CMA found 15 competition law infringements involving the bilateral sharing (whether exchange or disclosure and receipt) of commercially sensitive information about pay, including day rates and pay rises, for 20 different production roles with the object of preventing, restricting or distorting competition in breach of Chapter I of the Competition Act 1998 (the explicit aim in most cases being to "coordinate how much to pay freelancers").

It imposed fines of £4.2m in total on ITV, IMG, BT and the BBC. All, but the BBC, applied under the CMA's leniency policy. Sky received full immunity and escaped a fine for approaching the CMA before it launched its investigation. The other three leniency applicants received fine reductions of 42.5%, 40% and 15% respectively (two applied within days of the dawn raids).

Further, the companies agreed a settlement with the CMA (which resulted in a streamlined process) and a 20% fine reduction.

At the same time as this decision, the CMA also announced the closure of its investigation (which opened in October 2023) into freelance services for non-sport television content on administrative priority grounds, ie without any determination as to whether there had been illegal conduct.

The CMA also has a third investigation, which began as an investigation into suspected unlawful conduct in relation to the supply of fragrance and fragrance ingredients and which it subsequently expanded to cover conduct relating to the hiring or recruitment of certain staff.

What impact has it had?

All those involved in the recruitment/hiring of salaried employees or freelancers are on notice that competition law applies to their activities and, in particular, any discussions with competitors for these hires regarding pay and other benefits. The exchange, disclosure or receipt of this commercially sensitive information is potentially a serious competition law breach with severe consequences for the businesses and individuals involved.

Whilst the decision highlights significant benefits from applying for leniency, and settlement with the CMA, any business should seek legal advice first to understand all the implications and make an informed decision.

Conclusion

Historically, competition law may not have been considered relevant to HR and recruitment teams. However, whether a business has its own workforce, relies on freelance workers or a mixture of the two, competition law is relevant to its hiring practices and any discussions with its competitors for this workforce. All those involved in hiring employees and freelancers should receive compliance training (or a timely refresher) and understand how "chats" about salaries/ remuneration, other benefits or terms and conditions could amount to illegal exchanges of commercially sensitive information.

Tom McQuail
Partner
+44 7561 104098
tom.mcquail@rpclegal.com

Melanie Musgrave
Of Counsel
+44 7525 601312
melanie.musgrave@rpclegal.com

Recent developments

New shoots from the CMA's Green Agreements Guidance

To ensure that UK competition law is not a barrier to legitimate collaboration on environmental sustainability initiatives, the Competition and Markets Authority (CMA) introduced its Green Agreements Guidance in October 2023. This "gives firms greater certainty about when agreements that genuinely contribute to addressing climate change will be exempt from competition law". There is also an accompanying "open-door" policy, whereby parties can seek informal guidance on their proposed environmental sustainability agreements.

Whilst the open-door policy is described as a "light touch review" proportionate to the size, complexity and likely impact of the arrangement, the CMA does not just rubber stamp green initiatives as illustrated by its recently published third informal guidance.

The CMA previously published informal guidance for initiatives by two not-for-profits,

namely the Fairtrade Foundation (December 2023) and WWF-UK (March 2024). The CMA has now published informal guidance on the British Merchants Federation's (BMF) proposal to recommend a single provider of supply chain assurance services to accelerate the adoption of supply chain ESG assessments within the construction industry. The BMF is a trade association with over a thousand members (both builders' merchants and suppliers to the building materials sector in the UK).

Under the proposal, the BMF would recommend (but not mandate) the use of the single preferred platform, to be provided initially by Verisio (which had developed an ESG questionnaire for a large BMF member after winning a tender). The BMF would work with Verisio on developing further an ESG questionnaire with input from members and non-members (and potentially other ESG platform providers) and which would then be available on an open-source basis to potential providers.

Access to the platform and the fee structure would not discriminate between BMF members and non-members. The BMF would also ensure data portability so that information could be transferred at no extra cost to an alternative provider and the BMF would run competitive processes following the initial appointment of Verisio (without a tender) to reduce foreclosure risks. Measures would also be in place to protect commercially sensitive information.

What impact has it had?

The informal guidance and process involving the BMF illustrates various important considerations:

the open-door policy is not a speedy process; the informal guidance took 13 months (the CMA's aim is to provide guidance in five to seven months)

the applicant may need to adjust their proposal following the process. The BMF submitted a revised proposal four months after its initial request and, following discussions with the CMA, conducted a self-assessment of the proposal under the s9 exemption criteria (ie whether the benefits outweigh the harm to competition). The CMA's willingness to work with the BMF to reach a solution should give some comfort to business
the applicant must make a competition law assessment and quantify any benefits as part of the request. Whilst the CMA noted that the BMF's proposal did not have an anti-competitive objective, it assessed the likely impact on competition and the application of the s9 criteria. The BMF had quantified in its submission both the benefits from a cost reduction and timing perspective and the environmental benefits, including emissions reductions, and these were sense-checked by the CMA

the BMF is required to keep matters under review to ensure that the arrangement continues to comply with the Guidance and that there are no new factors which would make a "material difference" to the CMA's assessment and resulting guidance. Under its light touch approach, the CMA reviews the parties' submissions and public information, but does not conduct market testing
the CMA did not take a position on the merits of the initially selected service provider and on whether the quality of the service would be sufficient. The CMA noted that its Green Claims Code was relevant and that businesses should therefore consider whether any assessment scheme sufficiently substantiates any environmental claims.

Conclusion

Competition law compliance is an important consideration, but need not be a barrier to legitimate collaboration in pursuit of an environmental sustainability goal. Whilst not every request will be eligible for informal guidance, the CMA has demonstrated a willingness to support businesses where, having considered the Guidance and the informal guidance published to date, there is uncertainty about the application of UK competition law to their proposed green initiative.

Tom McQuail
Partner
+44 7561 104098
tom.mcquail@rpclegal.com

Melanie Musgrave
Of Counsel
+44 7525 601312
melanie.musgrave@rpclegal.com