Competition (Amendment etc.) (EU Exit) Regulations 2020

Baroness McIntosh of Pickering Excerpts

Monday 16th November 2020 Grand Committee

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, the role of competition in the economy and in protecting consumer choice is extremely important, and the EU competition rules have done so for a defining period of time. I must declare my interests: in the late 1970s, I spent six happy months as an intern—a stagiaire—in DG IV, now DG COMP. I saw a great future for myself as a competition lawyer; sadly, that was not to be.

I thank my noble friend the Minister for introducing these regulations, but a number of questions arise. It is clear that great uncertainty lies ahead for companies under the regime set out in the regulations. As my noble friend Lord Lansley alluded to, there are many unanswered questions on state aid and subsidies, which are still part of the negotiations. In the context of these regulations, what will the definition of “dominant position” be for merger policies once the CMA takes over, as regards any UK company wishing to continue to do business in the EU? If my understanding is correct, there will be a period of time when a UK company is subject to two different regimes, as my noble friend the Minister set out earlier. Obviously, that could lead to a degree of confusion.

On the ongoing rights of the European Commission in looking at live cases, what will be the position for an appeal to be made under any decision taken in those cases? Will it still have the right to appeal to the European Court of Justice or will it have to rely on entirely UK-based remedies? Which body should it apply to in this regard?

I echo what the noble Baronesses, Lady Bowles and Lady Bennett, said about the current unhealthy state of competition and the UK’s ability sufficiently to ensure a level playing field and protection for consumers against giant tech firms. This area concerns me greatly going forward, so I would be interested to know what proposals my noble friend has in that regard. In this brave new world of leaving the protections of the EU’s competition policies, how can he reassure British consumers that their rights will be protected? Does he at least have an update on what the situation will be regarding roaming charges from 1 January 2021? Will roaming charges revert to UK providers being able to charge fantastic amounts for our use? Obviously no one is going anywhere at the moment but, when travel resumes, will they be able to charge what they deem to be reasonable but others might deem extortionate?

If under the regulations before us today the UK courts no longer have the facility to refer questions of interpretation of competition policy in European Union law to the European Court of Justice, what protection will businesses have from potential unfair competition for their products in the rest of the European Union? It would be helpful to understand what that would be. Can my noble friend assure me also that there is no possibility of a double penalty being imposed under the two regimes appearing to run in parallel for an interim period? I know that the Explanatory Memorandum states clearly that the CMA will “have regard to” penalties that might have been imposed by the European Commission, but it would be helpful to have clarification in that regard.

Can my noble friend also reassure me that businesses that continue to operate in the EU will not face more red tape as a result of the regulations before us than is currently the case? I do not oppose the regulations, but I am deeply concerned about some of their implications.