Response to the CMA’s Consultation on Its New Digital Markets Competition Guidance

BRG professionals recently responded to the UK Competition and Markets Authority’s (CMA) consultation on its digital markets competition regime guidance.

BRG professionals noted that the guidance on strategic market status designation, conduct requirements and pro-competition interventions (PCIs) is drafted very broadly; this could lead to significant difficulties for the CMA and other stakeholders when it comes to implementing the regime.

BRG professionals can understand the CMA’s desire to maintain a substantial element of discretion at this stage, but the level of discretion may provide the incentive for many stakeholders to attempt to influence the CMA in how it applies that discretion, leading to a likelihood that any decisions made by the CMA will be appealed and the risk that judgments in such appeals will set rule and precedents that the CMA will have to abide by subsequently. This dynamic is likely to obstruct the CMA in its implementation of the regime and lead to delays and costs for all parties, including the CMA.

In addition, BRG professionals noted that the timeframe for conducting PCI investigations and imposing remedies appears to be extremely challenging for the CMA to achieve in a robust manner.