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1. Ban on anticompetitive agreements will have wider reach

2. Greater evidence-gathering powers for the CMA

3. Tougher sanctions for non-compliance with investigations and remedies

4. Exemplary damages possible in private antitrust litigation

5. A more flexible markets regime6. New antitrust powers in relation to motor fuels

The Digital Markets, Competition and Consumers Act 2024 will in the main start to take effect in stages later in 2024 and will bolster the powers of the Competition and Markets Authority (CMA) to enforce U.K. antitrust rules. You need to know about six changes.

1. Ban on anticompetitive agreements will have wider reach

• The prohibition will capture extra-territorial agreements that are implemented outside the U.K. as long as they have (or are likely to have) “immediate, substantial and foreseeable” effects within the U.K.

2. Greater evidence-gathering powers for the CMA

• Companies will need to be mindful of their updated duties and obligations in their compliance procedures when faced with inquiry from the CMA:
  
  Individuals and businesses will be under a new duty to preserve evidence where they know or suspect that an investigation is, or is likely to be, carried out by the CMA.
• The CMA will have broader powers to interview individuals unconnected to the company under investigation.
• The CMA will be able to obtain any information stored electronically and accessible from the business and domestic premises (e.g., in the cloud) during dawn raids executed under a warrant.
• When carrying out dawn raids at domestic premises the CMA will have “seize and sift” powers. This may well encourage even more inspections of private homes, which have become more common since the increase in remote-working.
• The CMA will be able to require companies and individuals to produce documents and information held outside the U.K. where they are the subject of an enforcement investigation or are third parties with a sufficient U.K. connection. This clarifies an issue that was recently subject to appeal before the U.K. courts. It also applies to the merger control regime.

3. Tougher sanctions for non-compliance with investigations and remedies

• Companies failing to comply with investigations will face fines of up to 1% of annual turnover (plus 5% daily penalties) on companies. Individuals could be fined GBP30,000 (plus a GBP15,000 daily penalty).
• Breach of remedies, including interim measures, commitments and orders, could result in fines of up to 5% of annual turnover (plus 5% daily penalties) on companies. Individuals face GBP30,000 fines (plus a GBP15,000 daily penalty).
• These sanctions apply across the board to antitrust, merger control and market investigations.
• We expect the CMA to be bold in the use of its new powers.

4. Exemplary damages possible in private antitrust litigation

• The Competition Appeal Tribunal will have the power to award exemplary (i.e., punitive) damages for breaches of antitrust law, except in collective proceedings.
• It will also be able to grant declaratory relief in individual and collective claims, such as a statement on the interpretation of a contractual clause or a statutory provision, or on the validity of a patent.
• This may encourage more claims.

5. A more flexible markets regime

• There will be a greater focus on ensuring remedies following a market inquiry are effective:
  
  The CMA will be able to accept binding commitments from businesses at any stage of a market study or investigation. This could bring inquiries to a close more swiftly.
• Businesses can be required to conduct “implementation trials” of certain consumer information remedies to ensure they work as well as possible.
• For up to ten years after finding an adverse effect on competition, the CMA will be able to vary, release, revoke or replace ineffective remedies, subject to a two-year cooling off period.
• Other amendments are designed to inject flexibility into the procedure, but could have mixed results for the companies involved:
  
  Giving the CMA the option to narrow the scope of an in-depth market investigation to focus on particular features (rather than the market as a whole)—this should minimize the burden on businesses.
• Enabling the CMA (in certain circumstances) to make a market investigation reference after previously deciding not to do so—this could result in uncertainty for market players.

6. New antitrust powers in relation to motor fuels

• Bolstering the CMA’s recent work to ensure effective competition in the motor fuel sector, it will have new powers to request information on the distribution, supply and retail of petrol and diesel.
• Failure to comply with CMA information notices will risk fines of up to 1% of global turnover (or 5% daily penalties) and could be a criminal offense.

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