The European Commission’s Antitrust Investigation into Mondelēz (Part 2)

Overview

To read part 1 "Home-Coming of Cadbury Dairy Milk Chocolate Bars," please click here.

There has also been a relatively recent development relating to Mondelēz that highlights the possibility for divergent enforcement action by the UK Competition and Markets Authority (CMA) and the European Commission (EC). On January 28, 2021, the EC initiated a formal antitrust investigation into Mondelēz to assess whether it might have restricted free competition in a range of national markets for chocolate, biscuits and coffee by hindering the cross-border trade of these products between the EU Member States, which would be in breach of Article 101 and/or Article 102 of the Treaty on the Functioning of the European Union (TFEU).^[1]

The EC is concerned that Mondelēz^[2] may have restricted the so-called “parallel trade” of its products between the EU Member States through the following groups of practices:^[3]

A group of practices concerns certain possible restrictions in the concerned markets for the wholesale supply of Mondelēz’s chocolate, biscuits and coffee in the EU. This alleged conduct would consist in practices that may possibly have the object and/or the effect of restricting intra-EU trade, by segmenting the markets for the supply and/or by limiting the cross-border procurement and/or resale of the said products to and of its customers in the EU. Such practices would possibly constitute agreements and/or concerted practices within the meaning of Article 101 TFEU.
Another group concerns possible restrictions in the relevant markets for the wholesale supply of chocolate tablets with the object and/or effect of restricting intra-EU trade by imposing the segmentation of such markets in Bulgaria and Belgium. Such practices would possibly constitute infringements of Article 102 TFEU.

The EU noted that traders and retailers try to procure products in the internal market where the prices are lower and trade them to markets where prices are higher, which generally leads to price decreases in countries where prices are higher. Restrictions to such parallel trade may result in: (i) the isolation of a national market whereby the manufacturer or supplier can charge higher prices to the detriment of consumers; and (ii) less product diversity.^[4]

In particular, the EC will investigate certain potentially anti-competitive practices by Mondelēz including:^[5]

possible limitations of the sales territories within the EU through agreements that determine in which EU Member State a trader can or cannot sell the products, or that restrict passive sales;
possible curtailing of parallel trade through agreements that raise prices or limit volumes specifically for customers that trade the products across the EU Member States;
possible agreements with customers not to engage in parallel trade or not to procure products from parallel trade, inter alia, in exchange for payments or other forms of compensation;
possible restrictions on the languages used on the packaging either unilaterally or through agreements with traders, thereby creating friction on sales to certain other EU Member States;
possibly refusing to supply certain traders with a view to restricting imports into certain markets.

The opening of a formal antitrust probe was preceded by unannounced inspections carried out by the EC at the premises of Mondelēz in November 2019 following concerns raised by citizens, EU Member States’ competition authorities and the European Parliament that prices for food and drink products significantly varied across EU Member States.^[6]

The EC indicated that it will conduct its in-depth investigation as a matter of priority, although the launch of a formal probe does not prejudge its results. On the other hand, Mondelēz said that it will work constructively with the EC.^[7]

The End of the Brexit Transition Period: Applicable Framework

Now that the Brexit transition period has ended (at 11 p.m. GMT on December 31, 2020), the UK is no longer an EU Member State and, in principle, has more freedom to pursue its own antitrust enforcement and policy agenda. As a result of the EU antitrust rules no longer applying in the UK, the CMA is no longer prohibited from taking enforcement action against suspected anti-competitive practices or abuse of dominance in the UK where the EC is investigating the same conduct. Therefore, companies will potentially become subject to parallel EU antitrust and CMA proceedings in respect of allegedly anti-competitive behaviour that has an impact in the UK on the one hand and the EU on the other with respect to investigations commenced after 2020.

The Operation of Substantive UK and EU Competition Law

After the transition period, the operation of substantive UK and EU competition law is governed by the following legislation:

EU law adopted as “retained EU law”. Under the European Union (Withdrawal) Act 2018 (EUWA), as amended by the European Union (Withdrawal Agreement) Act 2020 (WA Act 2020),[8] EU law that applied to the UK at the end of the transition period (including any principles of the Court of Justice of the European Union (CJEU) decided by the end of the transition period, unless otherwise specified under the legislation) has become part of domestic UK law (sections 2 to 4, 6(7) of the EUWA, as amended by section 25 of the WA Act 2020).[9]
Statutory instruments – UK law correction and amendments to retained EU law. Prior to and during the transition period, the UK published various statutory instruments under section 8 of the EUWA, amending retained EU law to ensure it operates effectively. In particular, in January 2019, the Competition (Amendment etc.) (EU Exit) Regulations 2019 (Competition Brexit SI 2019)[10] resolved to adopt much of EU competition law into UK law. The regulations sought to correct deficiencies in competition legislation arising from EU law no longer applying to UK activity, and copy across EU competition precedent and interpretation through a new section 60A Competition Act 1998 (Competition Act), replacing the existing section 60 (paragraph 7 of Schedule 4, Competition Brexit SI 2019). The regulations also adopted existing EU block exemption regulations (BERs) into UK law. As the Competition Brexit SI 2019 was drafted to reflect a no-deal scenario, it did not anticipate the transition period or the treatment of cases initiated during this period and did not reflect the provisions of the UK-EU Withdrawal Agreement (UK-EU WA)[11] agreed in October 2019. To address this, on November 26, 2020, the UK published the Competition (Amendment etc.) (EU Exit) Regulations 2020 (Competition Brexit SI 2020)[12] to cure some aspects of the Competition Brexit SI 2019, set its application from the end of the transition period, and make transitional provisions for jurisdiction and the enforcement of commitments and remedies.

The Vertical Agreements Block Exemption Regulation

There are currently seven BERs under EU law (including the Vertical Agreements Block Exemption Regulation (VABER) – Commission Regulation 330/2010 on the application of Article 101(3) of the Treaty to categories of vertical agreements and concerted practices). After the end of the transition period, the Competition Brexit SIs preserve the EU BERs as modifications to the block exemption provisions within the Competition Act. These modifications amend section 10 of the Competition Act[13] to provide for “retained block exemptions”, and exempt any agreement from Chapter I prohibition “if it falls within a category of agreements specified as exempt in a retained block exemption regulation” (Competition Brexit SI 2019, regulation 3).

The Competition Act prohibits agreements and arrangements between businesses that restrict competition in the UK (unless they meet the conditions for an exemption or are otherwise excluded). An agreement is exempt from that prohibition if it creates sufficient benefits to outweigh any anti-competitive effects.

VABER is the block exemption regulation for “vertical agreements.” Vertical agreements are entered into between businesses operating at different levels of the production or distribution chain, such as agreements between manufacturers and wholesalers or retailers. VABER provides a “safe harbour” and automatically exempts agreements that satisfy its conditions. In other words, vertical agreements that meet the conditions of VABER are presumed to be lawful under UK competition law.

In particular, VABER provides a general exemption for most vertical agreements entered into between businesses with market shares of 30% or less. However, an agreement will not benefit from the block exemption if it contains any so-called “hardcore restrictions”. These include provisions imposing fixed or minimum resale prices (“resale price maintenance”) or restrictions on the territory into which – and the customers to whom – goods or services can be sold (subject to exceptions). Other restrictions, such as non-compete clauses exceeding 5 years, are “excluded” and must be assessed individually.

The new section 60A Competition Act under the Competition Brexit SI 2019 (as amended by the Competition Brexit SI 2020) requires UK courts and competition authorities to interpret UK competition law in a manner consistent with retained EU law by having regard to EU guidance on matters of competition law interpretation, including interpretation of the BERs, made by the EC before the end of the transition period, provided that decision has not subsequently been withdrawn.

The new section 60A applies to all UK cases from the end of the transition period, even if the investigation or court case is “live” before the end of the transition period, or concerns facts before the end of the transition period (paragraph 7 of Schedule 4, Competition Brexit SI 2019).

However, CMA guidance on post-Brexit competition law indicates that the use of any EU guidance to assist in UK competition law interpretation must also have regard to the fact the UK has left the EU and that it may be appropriate to diverge from retained EU law in particular cases. Post-Brexit, the UK courts will no longer be able to refer cases to, nor will they be bound by future decisions of, the CJEU.

The Procedural Aspects of UK and EU Competition Law Enforcement

With regard to the procedural aspects of competition law enforcement, under Article 92 of the UK-EU WA, the EC remains competent for ongoing administrative procedures relating to competition in the UK, that may impact trade between the EU Member States, provided these procedures were “initiated” before the end of the transition period.^[14]

Therefore, where the EC formally initiated proceedings before the end of the transition period, it retains jurisdiction over such cases (Continued Competence Cases), even as they pertain to UK market activity, and the CMA cannot investigate the same alleged infringements. Decisions issued by the EC in Continued Competence Cases are binding on the UK (Article 95(1), UK-EU WA) and any appeals are subject to review only by the EU courts (Article 95(3), UK-EU WA). The EU also retains monitoring and enforcement of any aspect of those decisions, subject to the potential transfer back of any UK-related elements.^[15]

Under Article 92(3)(b) of the UK-EU WA, an antitrust procedure is considered initiated at the moment at which the EC has decided to initiate proceedings and formally registered proceedings in accordance with Article 2(1) of Commission Regulation (EC) No 773/2004. For an Article 101 or Article 102 TFUE investigation, this means proceedings are formally initiated at the earliest date on which the EC issues:^[16]

A preliminary assessment of its investigation, as referred to in Article 9(1) of Regulation 1/2003 (in relation to commitments).
A statement of objections.
A notice pursuant to Article 27(4) of Regulation 1/2003 (in relation to commitments or a finding of inapplicability).

Conversely, if no EU proceedings were initiated before the end of the transition period, the EC ceases to have jurisdiction for the UK competition elements of the relevant investigation at the end of the transition period, regardless of any preparatory steps taken, and the CMA has jurisdiction to investigate any conduct that affects the UK whether the conduct occurred before or after December 31, 2020. On this basis, EU jurisdiction to investigate or make decisions in relation to competition matters concerning markets in the UK for any non-initiated procedure has lapsed at the end of the transition period, and jurisdiction for these matters has passed to the UK authorities and courts.

Given the possibility that towards the end of the transition period the CMA and EC were involved in preparatory work in relation to the same conduct, or the same leniency applications, under the UK-EU WA, the EC must provide the UK with a list of all individual ongoing administrative procedures within three months of the end of the transition period (Article 92(4), UK-EU WA) in order to minimise the risk of overlapping procedures.

Where the allegation is that illegal conduct is ongoing, a split jurisdiction and parallel proceedings may occur even where the EC formally initiated proceedings before the end of the transition period. The CMA would have jurisdiction to investigate facts post-dating the transition period, whilst the EC alone would continue to investigate the prior period conduct.

The EU-UK Trade and Cooperation Agreement

The EU-UK Trade and Cooperation Agreement, agreed on December 24, 2020, broadly provides for a level playing field for “open and fair competition”, leaving a wide discretion to the UK.^[17] As such, companies active in the UK and the EU (as is Mondelēz)^[18] are now subject to parallel regimes, with the CMA – which stated that it is “ready to take on new post-EU Exit responsibilities from January 2021” and “launch complex cartel and antitrust cases and merger investigations with a global dimension that would have previously been reserved to the European Commission”^[19] – having the ability to review the same or similar suspected infringement alongside the EC in all cases where formal proceedings were not initiated by the EC before the end of the transition period. In practice, this means that transactions and conduct with effects in both the UK and the EU can be investigated by the CMA (or the UK sector regulators) in parallel with the EC.

Vertical Restraints Post-EU Exit

Brexit will have implications for the enforcement of vertical restraints in the UK, in particular parallel trade. EU case law[20] and Article 4 VABER prohibit restrictions on intra-EU cross-border sales that are passively induced, with Article 4 VABER allowing the prohibition of active sales within a distribution network that allocates exclusive territories within the EU. Article 4(b) VABER, which makes it a hardcore restriction any direct or indirect restriction on the buyer’s ability to sell into certain territories (or to certain customers), does not expressly specify that the “territory” is a territory within the EU. However, the Vertical Restraints Guidelines state that: “This list of hardcore restrictions applies to vertical agreements concerning trade within the Union. In so far as vertical agreements concern exports outside the Union or imports/re-imports from outside the Union see judgment of the Court of Justice in Case C-306/96 Javico v Yves Saint Laurent [1998] ECR I-1983.”[21]

It is generally possible for a supplier in the EEA to prevent exports to a non-EEA country (subject to local laws) if the products could not realistically be re-exported into the EEA. Such a restriction would infringe EU competition law if the restriction appreciably affects trade within the EEA (because, for example, absent the restrictions, customers in the EEA would benefit from significant imports from the country concerned).

The interaction between the effect on trade concept and the extraterritorial application of EU competition law has come into play where one or more of the parties are located outside the EU. Specifically, the Guidelines on the effect of trade state that imports into one Member State may, in turn, affect EU trade to the extent that the imports from a third country resulting from the agreement or practice were sufficient to cause a diversion of trade between the Member States.[22] The Guidelines specify that such an effect is more likely to be established for agreements aimed at restricting competition within the EU than for agreements aimed at organising competition outside the EU.[23] For the latter, it is necessary to examine the effects on undertakings operating within the EU that rely on the undertakings party to the agreements.[24]

Further, intra-EU trade may be affected by re-import clauses in agreements with undertakings located outside the EU where, in the absence of such a clause, it would be possible and likely for imports to affect trade patterns within the EU. In Javico, the CJEU held that a ban imposed by a luxury brand upon its distributors outside the EU on the re-importation of luxury goods into the EU from countries such as Russia was not necessarily prohibited. The CJEU came to the conclusion that such an agreement did not have an anti-competitive object within the EU as it related to the sale of goods outside of the EU. It highlighted several factors to consider when determining whether the agreement could restrict competition within the EU, including the degree of concentration of the market within the EU and the existence of an appreciable price difference between non-EU and EU products. Finally, the CJEU found that the smaller the proportion of the total products sold within the EU accounted for by re-imported products, the less likely intra-EU trade could be appreciably affected.

Possible Developments in UK Competition Law

Post-Brexit, there may be a risk of suppliers potentially being able to partition the UK market from the EEA market and preventing EEA distributors from exporting into the UK. This could result in increased prices for UK consumers, who could no longer benefit from cheaper prices through parallel imports and competition. It is possible that the CMA would find that agreements restricting sales into the UK could eliminate competition in the UK and, therefore, breach UK domestic competition law. It remains to be seen whether the CMA / UK competition law will adopt such an approach. In its previous no-deal guidance, the CMA said that “in certain circumstances, passive sales bans affecting sales to a UK market or UK customer are capable of falling within the scope of the Chapter I prohibition. They may not satisfy the requirements of the Retained Vertical Agreements Block Exemption Regulation and may be treated as hardcore restrictions of competition.”^[25]

In relation to exports to the EU, it is possible that UK competition law may decide to permit a greater degree of territorial restrictions on resale into the EEA as there will be no underlying single market integration agenda. For example, it may be(come) legal under UK competition law for a UK supplier to prevent its UK distributor from selling outside of the UK into the EEA.

Scope for Divergence Between the EU and UK Competition Regimes

Although the treatment of vertical agreements under the EU and UK competition regimes remains aligned for now,[26] it must be noted that the CMA is currently reviewing the retained version of VABER (which, like the EU version, is due to expire in May 2022), as confirmed by the CMA and the Department for Business, Energy and Industrial Strategy (BEIS) on February 10, 2021. The CMA plans to carry out a series of roundtable discussions in spring 2021 and consult on its proposed recommendations over the summer.[27] The CMA is expected to send its final recommendations to the Secretary of State for BEIS in autumn 2021. The Competition Brexit SI 2019 enables the Secretary of State to renew or replace block exemptions as they expire. This can now be done independently of the EU, as the UK has a separate competition regime. This review, therefore, marks an early opportunity, since Brexit, for the CMA to recommend divergence from EU competition law.

For its part, the EC is also consulting on how both the EU version of VABER and its related Guidelines on Vertical Restraints should be amended before finalising new versions that will apply after May 31, 2022.

Therefore, the concurrent EU and UK reviews introduce potential for divergence and greater complexity for businesses active in both the EU and the UK. The scope for divergence is arguably greater regarding the Guidelines than the VABER itself; however, this is likely to become clearer when the CMA launches its formal consultation later this year.[28]

Conclusion

In light of the above, it will be interesting to see how the CMA will decide to address issues relating to the restriction of cross-border trade, post-Brexit, and whether there will be cross-border cooperation between the relevant authorities in their antitrust investigation and enforcement activities. In this instance, as the EC formally initiated proceedings under Article 2(1) of Regulation 773/2004 on January 28, 2021, it ceased to have jurisdiction over the UK aspects of the investigation at the end of the transition period, regardless of any preparatory work carried out. Therefore, it is possible that the UK may open a parallel investigation in relation to similar infringement activity conducted in the UK under UK competition law. Indeed, as of January 1, 2021, UK authorities no longer have the jurisdiction to enforce EU competition law, except where a UK authority is assisting the EC with a Continued Competence Case.^[29]

In brief, the practical effect of the end of the transition period is that:

UK companies doing business in the EU will still be subject to the application of EU competition law, enforced by the EC.
The CMA will have jurisdiction to investigate anti-competitive behaviour that affects the UK even if the EC begins an investigation into the same behaviour. Companies will potentially become subject to parallel EU competition and CMA proceedings in respect of allegedly anti-competitive behaviour that affects both the UK and the EU. The CMA (or the UK concurrent regulators) will only investigate suspected infringements of Chapter I and Chapter II prohibitions set out in the Competition Act and not of Article 101 and Article 102 of the TFEU.^[30]

Following the UK’s exit from the EU, the CMA will have materially more activity to cover and will be the only enforcement body in relation to UK-only competition law infringing activity due to a lack of overlapping jurisdiction with the EC. So far, the CMA has to a degree relied on the EC for the investigation of Article 101 and Article 102 TFUE cases even as they relate to the UK markets, and the potential parallel assessment of these cases by the CMA in future will require additional resources and prioritisation.

It must also be noted that there will likely be many cases where both the EU and the UK could, in parallel, open investigations, impose fines or other remedies, which could potentially add to risk, burden and cost for businesses.

[1] Case AT.40632 – Mondelez trade restrictions

[2] Infringements within the meaning of Article 101 and/or Article 102 of the TFEU were allegedly committed by Mondelēz International Inc., its subsidiaries and all companies under their control.

[3] https://ec.europa.eu/competition/antitrust/cases/dec_docs/40632/40632_385_9.pdf

[4] Executive Vice-President Margrethe Vestager, in charge of competition policy, said: “Chocolates, biscuits and coffee are products consumed by European citizens daily. We are opening a formal investigation to see whether Mondelēz, a key producer of these products, might have restricted free competition in the markets concerned by implementing various practices hindering trade flows, ultimately leading to higher prices for consumers. Trade in the internal market can lower prices and increase the variety of products offered across Member States.”

[5] https://ec.europa.eu/commission/presscorner/detail/en/IP_21_281

[6] In November 2020, the EC published a study on territorial supply constraints in the EU retail sector. The study also suggests that certain suppliers implement a number of practices that restrict the parallel trade of groceries, to the disadvantage of European consumers.

[7] https://www.bbc.co.uk/news/business-55846829

[8] The WA Act 2020 implemented provisions of the UK-EU Withdrawal Agreement into UK law and amended previous exit legislation, the EUWA, to enable most EU law to continue to apply during the transition period. The WA Act 2020 also mimicked the European Communities Act 1972 to ensure EU law has legal effect in UK law during the transition period, and ensure retained EU law is created at the end of the transition period.

[9] This new body of UK law, known as “retained EU law”, is defined in section 6(7) of EUWA. On December 21, 2020, the UK government made the European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020 (Commencement, Transitional and Savings Provisions) Regulations 2020 (SI 2020/1622). These regulations bring into force specified provisions of the EUWA (under regulations 2 and 3) and the WA Act 2020 (under regulations 4 and 5). The majority of these are brought into force on IP (implementation period) completion day (11.00 pm GMT on December 31, 2020), consistent with the key effects of the EUWA and the WA Act 2020 taking effect at the end of the UK-EU transition period.

[10] The Competition Brexit SI 2019 revokes Article 101 and Article 102 of the TFEU from the end of the transition period. However, these provisions are already reflected in Chapter I and Chapter II prohibitions of the Competition Act 1998, save that their geographical scope is the UK rather than the EEA. The EU block exemption regulations are revoked but replaced by “retained exemptions,” which mirror those block exemptions but apply to the UK only. After the end of the transition period, the CMA will no longer be able to investigate and enforce EU competition law and provisions facilitating reciprocal investigation and cooperation by EU competition authorities will no longer apply. However, UK businesses trading in the EEA will continue to be subject to the rules of EU competition law. For example, the appointment by a UK manufacturer of an exclusive distributor in an EU Member State will be subject to EU competition law. This means that UK businesses trading in the UK and the EU will face two sets of applicable rules. Although at the beginning at least there should be no substantive difference between those two sets of rules as the UK law will be the EU law as it was at the end of the transition period (subject to the necessary technical amendments to reflect that the UK is no longer part of the EU), the UK government may decide to repeal or amend the retained EU law over time.

[11] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12019W/TXT(02)&from=EN

[12] The Competition Brexit SI 2020 remained unchanged from the draft Competition (Amendment etc.) (EU Exit) Regulations 2020 which were published on September 30, 2020.

[13] The UK encoded EU BERs under section 10(1) of the Competition Act, whereby an agreement that was exempt from Article 101 TFEU “by virtue of a regulation” was also exempt from the UK Chapter I prohibition. This established a system of “parallel exemption”, which exempted an agreement even if it did not affect trade between Member States, but would otherwise fall under a block exemption regulation (section 10(2) Competition Act). Since May 1, 2004, Regulation 1/2003 has allowed the UK competition authorities and courts to apply and enforce Article 101 and Article 102 of the TFEU and related block exemptions in parallel to the EC and EU courts.

[14] This provision was transposed in UK law by the Competition Brexit SI 2019. At the end of the transition period, the EU also continues to have jurisdiction over UK market aspects where a relevant decision predates the end of the transition period and remains subject to any appeal through the EU courts.

[15] If the EC formally initiated the procedure before the end of the transition period and the matter becomes a Continued Competence Case, the UK may not open, or re-open, an investigation into the same UK subject matter (Competition Brexit SI 2019, Part 3 of Schedule 4). In addition, once the EC has made its decision in a Continued Competence Case the CMA cannot make a decision, or impose or accept commitments, in conflict with the EC’s decision. This provision prevents the UK from imposing a second penalty or administrative burden on companies that have already been subject to an EU’s decision.

[16] Articles 92(3)(b) and 2(1), Regulation 773/2004

[17] The EU-UK Trade and Cooperation Agreement contains provisions requiring the UK to have and maintain a competition regime (tackling anti-competitive agreements and practices, abuses of dominance and anti-competitive mergers) and a subsidy control regime that meets certain principles. It also includes provisions for cooperation between the EC and the CMA with regard to developments in competition policy and enforcement activities. The EC, or Member State competition authorities, and the CMA will endeavour to cooperate and coordinate their enforcement activities, where possible and appropriate, and also to exchange information. It also provides for the EC, Member States and the CMA to enter into a separate agreement on cooperation and coordination.

(https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22020A1231(01)&from=EN)

[18] The EU will continue to have jurisdiction over companies located solely in the UK if the relevant conduct meets the low bar for EU jurisdiction (i.e. implementation or reasonably foreseeable effects in the EU). If conduct can affect dealings with customers in the EU, EU law can apply concurrently to domestic law in the UK, even without a physical EU nexus.

[19] https://www.gov.uk/government/consultations/cma-annual-plan-consultation-202021/cma-annual-plan-consultation-202021

[20] Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission of the European Economic Community. Judgment of the Court of July 13, 1966. Joined cases 56 and 58-64.

[21] Note 5 to paragraph 47

[22] Paragraph 101

[23] Paragraph 103

[24] Paragraphs 106 and 107

[25]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915639/_EU_Exit_No_Deal_Guidance_Document_.pdf

[26] As, following the end of the Brexit implementation period, VABER has been retained in UK law (with limited changes to correct Brexit-related deficiencies) and the related EU Guidelines have the status of relevant statements of the EC to which the CMA, UK sector regulators with competition law powers and UK courts must have regard after 31 December 2020.

[27] The consultation closes on July 6, 2021.

[28] While VABER is a relatively short document and we would expect the CMA and EC to remain broadly aligned on the criteria around the types of anti-competitive conduct that cause an agreement to fall outside VABER, the Guidelines are instead much more detailed and unlikely to be replicated by a new UK version of the Guidelines.

[29] Competition Brexit SI 2020, Regulation 37

[30] Following Brexit, a new section 60A of the Competition Act provides that competition regulators and UK courts will continue to be bound by an obligation to ensure no inconsistency with pre-exit EU competition case law, unless appropriate in specific circumstances, including differences between markets in the UK and markets in the EU and a principle having been laid down or a decision made by the CJEU after the end of the transition period.