The UK Competition Appeal Tribunal and the High Court handed down an important concurrent judgment regarding the territorial limits of the investigatory powers of the Competition and Markets Authority (the CMA) when investigating suspected breaches of cartel and dominance rules under the Competition Act 1998.
The judgment has significant implications for businesses with operations outside the UK in the context of CMA antitrust investigations. The effect of the judgment, which is currently under appeal, is that non-UK parent companies, and non-UK subsidiary companies that do not have a UK parent, cannot be required to produce information to the CMA unless they have a “UK territorial connection”. If a party intends to rely on this territorial “defence”, it must take care to identify what information (if any) can legitimately be withheld from disclosure. It must also weigh the merits of withholding information from the CMA, in circumstances where that same information might in any event have to be produced to agencies in other jurisdictions.
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