Super-complaints can be brought by certain designated consumer bodies, such as the Consumers' Association (Which?) and the National Association of Citizens Advice Bureaux. The CMA can proactively initiate such a study or, alternatively, a study may be launched in response to a so-called "super-complaint". Generally speaking, market studies are undertaken in markets where there has been some suggestion that competition is not functioning optimally.
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In broad terms, the CMA uses market studies to educate itself about a market, looking at the economic and regulatory drivers and patterns of consumer and business behaviour. In order to inform its decision as to whether to make a market investigation reference, the CMA can first undertake a "market study" under the CMA's general review function in section 5 of the EA02. Accordingly, the authorities are able to recommend changes to government behaviour or legislation which is harming competition. Importantly, the definition also allows market investigations to cover government behaviour and legislation, often called "public" distortions of competition. where behaviour in an upstream market is foreclosing competition in a downstream market), known as a "cross market reference".Īs a result, the authorities are able to address issues such as the situation where a lack of customer understanding and information about the product or service under consideration makes comparing competing offers difficult and results in muted competition because customers are reluctant to switch suppliers. In addition, in cases where "conduct" is a feature of concern, the reforms under the ERRA13 allow for a market investigation reference to be made in more than one market if necessary (e.g. In particular, the definition encompasses inherent structural issues not attributable to the conduct of any particular business or businesses and also encompasses the behaviour of customers, including both end-consumers and intermediate purchasers.
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It is this broad definition of "feature" which allows market investigation analysis to go beyond looking at conduct of market participants which could potentially be assessed under the rules on anti-competitive agreements and abuse of dominance.
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The functions of the Competition Commission (CC) and many of the functions of the Office of Fair Trading (OFT) were transferred to the CMA on 1 April 2014. The Enterprise and Regulatory Reform Act 2013 (ERRA13) established the Competition and Markets Authority (CMA) as the UK's competition authority responsible for ensuring that competition and markets work well for consumers. There are exceptions to this, however, such as the investigation of BAA's ownership of airports in South East England and Scotland. As such, the focus of these investigations is generally upon industry-wide practices (or, indeed, consumer behaviour) that appear to be harming competition, rather than the behaviour of a specific firm or firms. There may be no wrongdoing by firms in terms of unlawful conduct, but there may still be adverse effects on competition which give rise to significant consumer harm. Market investigations allow the UK competition authorities to investigate markets where particular features of the market may give rise to anti-competitive effects which might not be captured by other competition law rules (in particular, the prohibition-based rules on anti-competitive agreements and abuse of dominance).
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This guide summarises the market investigations regime in the UK.