Coordination Across the Channel: The EU and UK Agree on a Competition Cooperation Agreement

On May 20th 2025, the European Commission and the UK’s Competition and Markets Authority (CMA) announced that they had agreed on a competition cooperation agreement (the Agreement). Their announcement follows on from the conclusion of technical negotiations about such an agreement, which we previously blogged about last year. The Agreement is an important milestone in the evolving relationship between the EU and the UK in competition enforcement, which became institutionally more complex as a result of Brexit.

As can be seen in the OECD’s formidable inventory of such documents, formalised relationships between competition authorities can come in many shapes and sizes, such as administrative arrangements, terms of reference or memorandums of understanding (MoUs). The aim of such initiatives is to help agencies work together across national borders, especially when tackling anti-competitive practices with an international component. Agreements such as the subject of this post are, generally speaking, the strongest of such initiatives, since they create a formal framework for inter-agency cooperation with legally binding obligations. As such, they generally only take effect after ratification procedures by the parties in question.

This post will introduce the content of the Agreement, compare it to the pre-Brexit scenario as well as to other similar agreements that the Parties have signed, before concluding with our thoughts.

The Agreement

The Agreement covers matters related to competition law and merger control, as set out in Article 2. Other related matters, like sector competition regulation, such as the DMA, DMCCA or state aid, are not included in the Agreement. The authorities listed in the Agreement are the European Commission and the National Competition Authorities (NCAs) of Union Member States, and the UK’s CMA. The inclusion of NCAs is notable, since other similar bilateral agreements that the EU has entered into (such as the EU-US agreement) only mention the EU Commission (from the European side). As such, it goes some way to restoring the pre-Brexit level of cooperation between the CMA and European NCAs, when the former was a member of the European Competition Network (ECN). Notably, however, the agreement excludes other agencies which may also have the competence to enforce competition law, such as the UK’s Office of Rail and Road, and doesn’t cover domestic competition law in Union Member States.

Article 3 of the Agreement states that the parties must notify each other if their enforcement activities are “likely to affect the important interests” of the other party. This permits them to coordinate their enforcement activities as set out in Article 4, in cases where they are pursuing “the same or related enforcement activities”.

Article 5 contains negative comity provisions, which seek to ensure that the enforcement activities of one party do not “adversely affect the important interests of any of the other [parties]”. In cases where they might, the enforcing party must make “all reasonable efforts to arrive at an appropriate accommodation of each other’s important interests”.

Articles 6-9 contain perhaps the most interesting aspects of the Agreement, which pertain to information sharing. Article 6 contains provisions to let competition authorities party to the Agreement to share information between each other, to the extent allowable under domestic law. As noted by McGrath and Maneti, the UK recently amended Section 243C of the Enterprise Act 2002 to allow the sharing of confidential information in the context of international cooperation agreements such as this one. The Agreement also permits the transmitting competition authority to specify terms and conditions under which information can be used.

Negative comity appears again in Article 9, which compels competition authorities to work together in the case that shared information is accidentally disclosed or used in a manner contrary to the Agreement. In such cases, the parties “shall promptly confer on appropriate steps to minimise any harm resulting from such use or disclosure”.

Finally, the last articles of note are 10 and 11, which facilitate dialogue between the UK and EU competition authorities with regards to the functioning of the Agreement (Article 10), and stipulate that it must be reviewed within two years (Article 11). The inclusion of such provisions - which are rarely seen in such agreements - indicates that the parties are particularly keen to “further [develop] their cooperation” in the future.

Comparing to before Brexit

As mentioned above, the nature of the document in question - an Agreement - allows for a relatively strong form of cooperation. The provisions of the Agreement in question cover information sharing, coordination of enforcement activities, negative comity, and facilitate dialogue between the competition authorities party to the agreement. But while the Agreement represents a significant step forwards in the level of post-Brexit EU-UK competition enforcement cooperation, it is important to remember that before Brexit, the CMA was an NCA of an EU Member State, and therefore a member of the European Competition Network (ECN). With that in mind, the following section compares the current situation to that before Brexit

The Commission Notice on cooperation within the Network of Competition Authorities explains that cooperation between the EU Commission and its Member States’ NCAs, as well as between those NCAs themselves, allows for and encourages several modes of cooperation not present in the UK-EU Agreement. These include the re-allocation of cases between NCAs, positive comity, exchange of confidential information, and assistance in evidence gathering. Keeping in mind that the UK used to be an EU Member State, and used to be able to take advantage of these modes of cooperation, the following paragraphs will consider the value of each.

Re-allocation of cases is most helpful in regional, rather than bilateral, cooperation agreements. In the latter, both jurisdictions can typically pursue the case simultaneously. In the former, closely-linked jurisdictions may need to pass cases between another to ensure that a case is handled by the competition authority of the jurisdiction most affected by the practice in question. Despite their bilateral relationship, this latter case may also arise between the EU and UK, as the high levels of trade between them may mean that a practice notified to the EU Commission, for instance, affects both jurisdictions but more strongly affects the UK (or vice-versa). Such situations are typically handled with the inclusion of a positive comity provision, which would allow one Authority to request that another initiate an investigation. In that case, the requesting Authority could benefit from the outcome of the investigation (if the offending undertaking ceases the anti-competitive practice, for instance) or from the evidence gathered during the course of the investigation, which it would then use to reach its own outcome.

Positive comity is not covered by the EU-UK Agreement, despite the OECD recommending the inclusion of such a provision in Article IV of its 2014 Recommendation of the Council Concerning International Co-operation on Competition Investigations and Proceedings. In its Inventory of International Co-operation Agreements on Competition, the OECD describes positive comity as a tool for “effective allocation of enforcement resources by allowing the better-placed party to deal with the problem (for example, it avoids difficulties of obtaining evidence in a foreign jurisdiction) [which] minimises conflicts between jurisdictions that may be caused by enforcement actions against activities occurring in another jurisdiction”. Some agreements that include positive comity are those between the EU and Switzerland (2013), the EU and Korea (2009), and Canada and Japan (2005). Given these precedents, and the fact that provisions allowing for positive comity usually explicitly stipulate that they do not limit the discretion of the party being asked to carry out the investigation under its own competition laws and priorities, it is somewhat surprising that the current Agreement does not include one. One reason could be that, post Brexit, the UK was keen to protect its regulatory sovereignty, and minimise the degree to which EU institutions could influence its enforcement procedures.

The provisions allowing for exchange of confidential information, under the new Agreement, are relatively wide in scope, including compared to pre-Brexit. As described above, Article 6(2) of the current Agreement states that “It is not necessary for a competition authority to seek that consent to the extent that the sharing of that information without consent is permitted by applicable domestic law”. The OECD, in its Recommendation, refers to the exchange of confidential information between competition authorities without the need for obtaining consent from the parties in question, subject to certain conditions, as “information gateways”. An example of the conditions required is found in the above-mentioned cooperation agreement between the EU and Switzerland, which states that, in the absence of consent from the investigated parties allowing the competition authorities in question to share confidential information, the competition authorities can transmit information as long as: 1) the information in question relates to the same or related practices, which are being investigated by both authorities, 2) the request for information is clear and in writing, and 3) the requested competition authority determines which information is relevant to share. Similarly, the 2020 MoU between the competition agencies of the UK, Australia, Canada, New Zealand, and the US creates an avenue for the sharing of confidential information, “recognising that their respective jurisdictions all have some form of information sharing legislation that allows for sharing of confidential information in certain circumstances”. In these cases, competition authorities can exchange confidential information, under certain circumstances, without an explicit waiver from the parties involved, saving time and keeping the status quo of investigations more confidential. As such, we think that the information gateway established in the current Agreement is robust, and is in-line with that found in other agreements.

Finally, the EU Commission and European NCAs can assist one another in evidence gathering, even if the assisting competition authority is not investigating the same or related practices. While this is not ruled out under the current Agreement, neither is it explicitly provided for. An example of a provision to this effect is found in the Nordic Cooperation Agreement (2017). Article 4 of that Agreement states that “The competition authority of a Party may in its own territory carry out any requests for information under its national law on behalf and for the account of the competition authority of another Party in order for the requesting authority to apply competition rules or merger control rules”. Such provisions allow an investigating authority to obtain evidence that it may not otherwise be able to gather without requiring that the assisting competition authority is investigating the same, or a related, matter, which saves on time and resources.

Conclusion

The EU-UK Agreement is robust and will enable significant cooperation between CMA on the one hand, and the European Commission and Member State NCAs on the other. This should be celebrated since, as we explained in last year’s post, cooperation between competition authorities across the Channel is beneficial for both sides. While the Agreement does not fully restore the level of cooperation to that prior to Brexit, it might also be a little much to expect that the UK CMA to be given the same rights or obligations of a European NCA.  Nevertheless, some of the integral aspects of intra-EU cooperation - such as positive comity and assistance in evidence gathering - should be kept in mind for future evolutions of of the EU-UK relationship, especially given that these aspects are provided for in other Agreements and MoUs, including those to which the EU or UK are party. Given that the Agreement stipulates that it should be reviewed within the next two years, there will be plenty of opportunities to consider such changes in the future.

*The author Todd Davies discloses that he was employed at Google as a software engineer between 2016 and 2022. All relations with the firm ended in March 2022.