On 9 June Brick Court Chambers hosted a roundtable to discuss the possible consequences for UK competition law of a Brexit vote in June 2016. The event was attended by partners and associates from a number of leading London law firms and a small number of competition law specialists within chambers.
The discussion, chaired by Helen Davies QC, was predicated on the assumption that a vote for Brexit would result in a ‘total’ separation between the UK and the EU, rather than the UK’s continued membership of the EEA. The conversation ranged widely but focused on four key topics.
Aidan Robertson QC addressed Commission investigations and direct actions before the General Court. He explained that UK lawyers would lose their rights to appear before the European Courts because they will no longer be qualified to practise in an EEA Member State. He also pointed out that legal advice provided by UK lawyers would cease to be privileged, for the purposes of European competition law. The subsequent discussion focused on how these consequences might be mitigated.
Marie Demetriou QC then addressed the effect a Brexit would have on competition damages claims. She explained that Brexit would give rise to jurisdictional questions (such as the circumstances in which it might be possible to sue for damage arising in other Member States), questions concerning the extent to which claimants could rely on a Commission decision and also questions concerning access to leniency material (given that EU law would no longer prevent their disclosure). The overall consensus was that a Brexit vote was highly likely to result in a decline of follow-on actions in this jurisdiction.
Tim Johnston led the discussion concerning substantive competition law, focusing particularly on the Damages Directive and the potential uncertainty concerning how the UK courts will construe domestic law that was introduced in order to implement EU secondary legislation. The attendees also pondered the possible difficulties that will arise in respect of cartel arrangements that operated before the UK leaves the EU but in respect of which the Commission might not reach a decision until after the UK has left.
Finally Daniel Piccinin pointed out some of the consequences for UK-based firms seeking merger clearance. He suggested that, perhaps counter-intuitively, that a greater number of cases might need to be decided at a European level following Brexit. At least in this respect, a vote to leave might result in less economic sovereignty for the UK.
The discussion was illuminating and stimulating and highlighted the breadth of issues that might arise in the event of a vote to leave the EU.