According to the Global Competition Review (published in July 2016), 2015 was “a slow year for behavioural enforcement” at the Competition and Markets Authority (“CMA”) and “the CMA simply needs to do more in 2016”.
It appears that in 2016 the CMA has stepped up its enforcement activity by:
- securing its first disqualification of a company director for breaching competition law;
- issuing over £140 million in fines in 2016, representing a dramatic increase from the £1.2 million of fines issued in 2015;
- issuing 7 infringement decisions in 2016, compared with an average of 2.8 infringement decisions a year in the 5 years from April 2010 to March 2015;
- opening 12 new Competition Act cases in 2016, compared with an average of 6.8 Competition Act cases a year in the 5 years from April 2010 to March 2015;
- using its new powers to impose a £10,000 fine for a failure to respond on time to an information request without a reasonable excuse for such failure to respond;
- imposing remedies in the retail banking and energy market investigations, as well as opening new market investigations into digital comparison tools, legal services and care homes.
The CMA has launched a consultation on its draft annual plan for 2017/18, which indicates that the CMA intends in its fourth year “to further step up the pace, scale and impact of our enforcement against anticompetitive or unfair practices”. The consultation can be found here and closes on 15 January 2017.
Coupled with this, Michael Grenfell (CMA Executive Director – Enforcement) has stated that the CMA intends to continue to tackle a mix of larger and smaller cases. Recent enforcement decisions range from the almost £90 million fine imposed on Pfizer and Flynn Pharma for excessive pricing to the £163,371 fine imposed on Trod Limited for its part in an agreement to fix prices. The CMA has been criticised for prioritising smaller cases, however Michael Grenfell stated in response that “it is in no one’s interest that small businesses (which are an important part of our economy) should be immune from competitive pressures or from the reach of competition law”.