In terms of content, the Withdrawal Agreement does not contain any requirements for the period after the end of the transition period. According to all reports, however, the signatories intend to respect the current “pillars” (antitrust ban, abuse control and merger control) under the future free trade agreement and to set certain minimum standards in this regard. A fundamental divergence between the UK and the EU in terms of substantive rules in the future seems unlikely, in part because both sides are closely involved in the International Competition Network (ICN), of which some degree of harmonisation is one aspect. The free trade agreement, on the other hand, seems to be much more important for the substantive question of what will happen to state aid control after the end of the transition period. As regards the calculation of turnover for concentrations, the Commission Guidelines state that the relevant date for the establishment of merger competence is the date of conclusion of the binding legal agreement, the announcement of a public offer or the acquisition of a majority stake or the date of the first merger notifications, whichever is earlier. If any of the relevant events occur before the end of the transition period, the Commission will take into account the turnover of the parties to the concentration in the United Kingdom. This is purely the Commission`s approach to determining whether it is competent. If the procedure is not initiated before 2021, the Commission`s substantive analyses and remedies will not be able to deal with the UK market. The CMA`s guidelines specify that it is free to invoke concurrent jurisdiction if the Commission has not initiated proceedings before the end of 2020. While the British government has somewhat softened its intransigent stance in recent weeks and it appears that a compromise could be reached, it is unclear at this stage what position the UK will take on state aid control after Brexit.
Discussions are currently revolving around the idea that the UK has its own control regime overseen by the CMA and the writing of some “high-level” substantive principles in the future free trade agreement. The question also arises as to how to deal with differences of opinion, i.e. dispute settlement mechanisms. It therefore remains to be seen what path, if any, the EU and the UK will have taken to agree on state aid control. On 29 March 2017, MP Theresa May, then British Prime Minister, officially announced the UK`s intention to leave the EU (i.e. Brexit), launched the process of withdrawing Article 50 from the TEU and launched the process of the UK`s two-year withdrawal from the EU. This withdrawal period has been extended several times until 31 January 2020. Meanwhile, the EU and the UK negotiated an agreement that governed the terms of their withdrawal (the Withdrawal Agreement). Subsequently, a revised Withdrawal Agreement was negotiated and published on 17 October 2019. At this point, it is still unclear what eu-UK relations will look like after 31 December 2020. It is difficult to say whether a free trade agreement will be signed and, if so, in what concrete form it will take place.
As long as things are not clearer, the people concerned have no choice but to prepare for the different possible scenarios. Negotiations on a free trade agreement between the UK and the EU are ongoing. However, the question of whether a free trade agreement is likely to bring about significant changes and consequences for competition law seems dubious at this stage. Fortunately, the legal roadmap for the transition from the current status quo, such as the “one-stop-shop” principle in merger control and the European Competition Network in the area of anti-cartel law, is largely established. .