UK-EU Competition Cooperation Agreement Published 15th April

On 15 April 2026, the Foreign, Commonwealth & Development Office published the UK–EU Agreement regarding Cooperation on the Application of their Respective Competition Laws (the “ Competition Agreement ”). This post by Jack Williams of Monckton Chambers summarises the Agreement’s background and key provisions, and explains how it is implemented in UK domestic law.

Background

As foreshadowed by the Commission’s press release of 29 October 2024 announcing the conclusion of technical discussions between the UK and the EU, the parties have now agreed a Competition Agreement aimed at promoting formal “cooperation and coordination” between the EU competition authorities (the Commission and national competition authorities) and the UK’s Competition and Markets Authority (“ CMA ”) only – UK sector regulators with concurrent competition powers are not included within scope). The stated objective is to “enhance the effective enforcement” of both EU and UK competition law (Article 1). This is the first agreement of its kind for the EU that enables EU national competition authorities, as well as the Commission, to cooperate directly with a third-country competition authority.

The Competition Agreement implements the objectives of Article 361 of the Trade and Cooperation Agreement (“ TCA”). Article 361 provides that the competition authorities on both sides “shall endeavour to cooperate and coordinate, with respect to their enforcement activities concerning the same or related conduct or transactions, where doing so is possible and appropriate”, and “may exchange information to the extent permitted by each Party’s law” (Article 361(2) and (3)). Article 361(4) of the TCA specifically envisaged a separate agreement setting out conditions for the exchange and use of confidential information. The Competition Agreement is that separate measure.

It is also noteworthy that the Competition Agreement is a “supplementing agreement” within the meaning of Article 2 of the TCA. As a result, it is an “integral part of the overall bilateral relations as governed by” the TCA and “forms part of the overall framework” of the TCA. In practice, this means the interpretative, oversight and enforcement mechanisms in the TCA also apply to the Competition Agreement, and if the TCA is terminated, the Competition Agreement falls away too (see Article 14(5) of the Competition Agreement). That said, Article 14(4) excludes the Competition Agreement from the dispute settlement mechanisms under Title I of Part 6 of the TCA.

Key provisions

The Competition Agreement contains four key substantive provisions on notification, coordination, comity and the sharing of information.

First, under Article 3, where a competition authority considers that any of its enforcement activities is likely to affect the important interests of the other party, it “shall” notify the other party’s competition authority of that enforcement activity. The term “enforcement activities”, as defined in Article 2(1)(d), captures both antitrust and merger investigations, as well as certain market studies and investigations.

Notifications must be made “promptly after the first publication of an investigative step”. The explanatory notes suggest, for example, that in a CMA merger investigation this would “typically be the Phase 1 launch announcement on the CMA’s website”.

Second, under Article 4, where competition authorities pursue or intend to pursue the “same or related” enforcement activities, they “may” agree that it is in their mutual interest to coordinate those activities, including (but not limited to) the voluntary provision of information. Such coordination may be limited or terminated at any time. As the explanatory notes say, this “retains the flexibility” for the competition authorities to act in accordance with their own enforcement priorities and resource availability.

Third, under Article 5, competition authorities “shall”: (1) “give careful consideration to each other’s important interests throughout all phases of their enforcement activities”, to the extent compatible with their own important interests and within the framework of domestic law; and (2) “make all reasonable efforts to arrive at an appropriate accommodation of each other’s important interests” where it appears that enforcement activities by one party’s competition authority may adversely affect the other party’s important interests.

This negative comity obligation is designed to reduce the likelihood of conflict or inconsistency. The caveat in Article 5(1) (concerning acting within the framework of domestic law) is reinforced by Article 12, which provides that nothing in the Competition Agreement requires a competition authority “to take any action that is inconsistent with existing domestic law”.

Fourth, Article 6 of the Competition Agreement permits, but does not require, competition authorities to share information (including confidential information) to the extent that the sharing of that information is lawful under applicable domestic law, including those governing confidentiality and data protection. Sharing of information requires the prior written consent of the information provider unless the domestic laws of the party concerned permits sharing of that information without consent. The relevant UK domestic law is set out in Part 9 of the Enterprise Act 2002. Section 239 concerns disclosure by way of consent. Section 241(1) permits disclosure “for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment” and sections 243A-243F specifically cover disclosure of certain information to an overseas public authority. The explanatory notes to the Competition Agreement explain that:

“In practice, if the CMA is considering making a disclosure for the purpose of its investigation, it will most commonly consider making the disclosure with the consent of the person to whom the information relates (for example, in the form of a waiver) or by the statutory functions information gateway under section 241 (1) of the Act.

The information sharing gateways allow the CMA (and other public authorities falling within the scope of the Act) to share information with an overseas public authority to facilitate (a) both its own statutory functions and the specified functions of the overseas authority; (b) only the specified functions of the overseas authority; and (c) a designated cooperation arrangement (i.e. treaties or non¬-legally binding arrangements between the UK and overseas territories relating to cooperation in competition and consumer matters that have been designated by the Secretary of State).”

It will be interesting to observe (and perhaps test) whether the CMA will “commonly” act with consent, especially given the broad terms of sections 243A-243 of the Enterprise Act 2002 and section 25 of the Enterprise and Regulatory Reform Act 2013 under which the CMA “must seek to promote competition, both within and outside the United Kingdom, for the benefit of consumers” (my emphasis).

It will also be interesting to track whether and when parties will challenge (a) any CMA decision to proceed without consent (especially given the purposes for which information can be used by the receiving competition authority under Article 7 of the Competition Agreement), and/or (b) the nature and scope of any disclosure provided without consent. In the latter regard, section 244 of the Enterprise Act 2002 specifically mandates the CMA to consider the “need” to exclude disclosure, so far as practicable, of sensitive, commercial, or private information, and the extent to which the disclosure of the information is “necessary” for the relevant purpose.

Article 7 of the Competition Agreement deals with how information exchanged under the Agreement can be used (which can, in certain circumstances, be used in evidence for the enforcement of competition laws – including to impose sanctions – and also for purposes other than the enforcement of competition laws), and Article 8 deals with issues of confidentiality.

Implementation

The Competition Agreement is not yet in force.

On the EU side, the EU Council must now adopt a decision to conclude it and the European Parliament will also need to provide its consent.

On the UK side, the Agreement will need to be ratified in accordance with the usual constitutional requirements, including the process under the Constitutional Reform and Governance Act 2010.

The explanatory notes baldly state that the Competition Agreement “does not require new domestic legislation”. I have not done anything like a full audit mapping the powers and duties in the Competition Agreement to the statutory functions and powers of the CMA in domestic legislation, but I make two initial observations.

First, one condition for use of section 243C of the Enterprise Act 2002 (disclosure of information to an overseas public authority for the purposes permitted under or by virtue of a designated cooperation agreement) is that the agreement is designated in regulations made by the secretary of state: see section 243C(6) of the Enterprise Act. I would be surprised if the Competition Agreement were not so designated (unless the other statutory gateways are considered sufficient in any event).

Secondly, although the explanatory notes set out clearly the domestic statutory basis for provision of information (i.e. Part 9 of the Enterprise Act 2002), they do not provide references for the domestic statutory provisions for the notification, coordination or negative comity provisions in the Agreement. It is likely that the broad pre-existing statutory purposes and functions of the CMA are sufficient to encompass relevant powers (and, perhaps, duties) corresponding to the Competition Agreement’s terms, but I would be interested to hear any thoughts or reactions to that.

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