Are Commitments Gaining Favor in UK Cartel Cases?

This blog considers the Competition and Market Authority's (CMA) stated policy on the acceptance of commitments in Competition Act 1998 cases, how that policy has been applied in practice, and what recent developments may indicate for the future. In particular, we examine whether the CMA’s recent willingness to accept commitments may signal a broader openness to resolving cartel investigations in this way in the coming year.

Commitments in CMA Antitrust Investigations

During the course of a CMA antitrust investigation, a number of outcomes are possible. The CMA may close the investigation without further action, for example on grounds of administrative priority. It may issue a decision finding no grounds for action, such as where the evidence is insufficient to establish an infringement. Alternatively, where it considers that an infringement may have occurred, the CMA may issue a Statement of Objections (SO). Finally, the CMA may accept commitments relating to future conduct where it is satisfied that its competition concerns will be adequately addressed. Commitments must be offered voluntarily and, if accepted, will become legally binding on the party as part of the decision adopted by the CMA (akin to consent decrees in the US). They are then enforceable (and penalties can be imposed for any breach).

Paragraphs 10.15 to 10.30 of the CMA’s Guidance on its investigation procedures in competition cases set out the circumstances in which commitments may be considered. Commitments must be offered by the party or parties concerned and may be structural or behavioural in nature, or a combination of both. The decision whether to accept commitments is a matter of discretion for the CMA.

The CMA will generally consider accepting commitments where:

• the competition concerns are readily identifiable;
• those concerns will be effectively addressed by the commitments offered;
• the commitments are capable of being implemented effectively; and
• implementation can be achieved within a relatively short period of time.

By contrast, the CMA is generally not to accept commitments where:

• the case involves secret cartel behaviour between competitors;
• the conduct in question involves a serious abuse of a dominant position;
• compliance with, or the effectiveness of, commitments would be difficult to monitor; or
• acceptance of commitments would undermine the deterrent objective of competition enforcement by avoiding a formal infringement decision.

Parallels with the EU Commitments Regime

This framework closely mirrors the approach taken by the European Commission under Article 9 of Regulation 1/2003. The EU commitments procedure is likewise discretionary and subject to broadly comparable conditions and limitations, as reflected in the Commission’s Best Practice Notice (see, for example, paragraphs 115 and 116). A recent illustration is the European Commission’s acceptance of commitments offered by Microsoft in September 2025 in relation to its Teams platform.

Early Engagement and the Housebuilders Decision

An important feature of the UK regime is that it is for the parties themselves to initiate discussions about commitments. The CMA also expects any proposals to be brought forward at an early stage of the investigation – typically before the issuance of an SO or the consideration of responses to an SO. By that stage, the CMA will usually have set out its provisional competition concerns, often in the context of a State of Play meeting, but without having formally "prosecuted" the case or reached any finding of infringement.

The most recent example is the CMA’s decision in October 2025 to accept commitments from seven of the UK’s leading housebuilders. This was accompanied by a £100 million ex gratia payment to support affordable housing initiatives and compliance improvements. Notably, the CMA made no formal findings of infringement. The commitments resolved concerns relating to suspected exchanges of competitively sensitive information, including information on sale prices, buyer incentives, visitor data for housing developments, and other property‑specific details. Acceptance of the commitments therefore avoided the prospect of protracted formal proceedings and potential infringement decisions.

Strategic Context and the CMA's "4Ps"

The CMA’s decision to accept commitments in the housebuilders case is particularly notable when viewed against the broader policy backdrop. In April 2025, following the Government’s Strategic Steer, the CMA set out its "4Ps" framework – pace, predictability, proportionality and process – "deliver meaningful changes to how we go about key aspects of our work. These 4Ps – pace, predictability, proportionality, and process – are designed to support growth, investment and business confidence in the UK’s competition and consumer regimes."

Against this backdrop, the commitments route offered the CMA an opportunity to resolve its investigation swiftly and to secure outcomes framed as delivering clear consumer benefits, which remains a primary focus of the authority.

Private Enforcement and Residual Exposure

Concerns that such an outcome would leave consumers without redress may be overstated. Importantly, the acceptance of commitments does not amount to a "get‑out‑of‑jail‑free" card for the parties concerned. Although the CMA’s decision addresses only the commitments and contains no finding of infringement, the housebuilders remain exposed to the risk of private damages actions.

Indeed, it appears that an opt‑out collective action – backed by a litigation funder – may be imminent before the Competition Appeal Tribunal. The proposed claim seeks class certification on behalf of purchasers of new‑build homes during the alleged infringement period. In the absence of a public infringement finding, the claimants will need to establish liability, causation and quantum, but the lack of a formal decision has not deterred the bringing of proceedings.

Key Takeaways

Several broader lessons may be drawn from these developments:

• Political and strategic pressure on the CMA to deliver outcomes quickly, to benefit consumers and to support economic growth may result in a more frequent recourse to commitments in appropriate cases.
• The housebuilders case demonstrates that the acceptance of commitments does not necessarily discourage collective actions. The prospect of follow‑on or stand‑alone claims may therefore make the commitments route more palatable for the CMA, as it does not preclude private enforcement.
• Disclosure risks remain significant. Defendants should anticipate disputes over access to the CMA’s files in subsequent litigation. Non‑privileged contemporaneous documents, including submissions made to the CMA, may be subject to disclosure and should be prepared with this risk firmly in mind.
• The creation of substantial funds under commitment arrangements may, in some cases, create scope for negotiated or mediated resolutions with claimants outside the formal framework of private damages actions.