Notice

International cooperation on competition and consumer law enforcement

Published 6 January 2025

Introduction

Memorandum of understanding between the Department for Business and Trade and the Competition and Markets Authority

1. The Department for Business and Trade (DBT) and the Competition and Markets Authority (CMA) are agreed that international cooperation in competition and consumer law enforcement provides benefits to consumers in the UK and overseas.

2. This Memorandum of Understanding (MoU) establishes a framework for international cooperation in competition and consumer law enforcement, as it pertains to DBT and the CMA.

3. This MoU sets out expectations, roles and responsibilities related to cooperation between DBT and the CMA on matters including:

(a) the disclosure of relevant information for use in civil and criminal investigations and proceedings

(b) the provision of investigative assistance to overseas regulators and

(c) international cooperation arrangements

4. This MoU is a statement of intent which will guide and be taken into account by the relevant staff and does not give rise to legally binding obligations on the part of either DBT or the CMA. The arrangements set out in this MoU are subject to what is required or permitted by law.

Overseas disclosures

General principles

5. The CMA’s ability to share information with overseas public authorities is governed by Part 9 of the Enterprise Act 2002 (EA02):

(a) section 237 of EA02 imposes a general restriction on the disclosure of information relating to the affairs of an individual or the business of an undertaking which the CMA has obtained during the exercise of any of its functions (‘specified’ information)

(b) sections 241, 243A, 243B, and 243C of EA02 allow the disclosure of specified information to an overseas public authority in certain circumstances and subject to the considerations and safeguards set out in EA02

6. This section of the MoU applies to the proposed disclosure of specified information under sections 243A and 243B of EA02. These provisions allow the CMA to disclose specified information to an overseas public authority for the purpose of facilitating the exercise of, respectively, both the CMA’s functions and the overseas public authority’s functions, or only the overseas public authority’s functions. The Secretary of State may direct that a proposed disclosure under sections 243A and 243B of EA02 must not be made if certain conditions are met. This MoU sets out a framework to facilitate an efficient process for the consideration and review of proposed disclosures under those provisions.

7. Sections 243F(2) and (3) of EA02 list relevant considerations that the CMA must have regard to when considering whether to make a disclosure under sections 243A or 243B. Under section 243F(5) of EA02, the Secretary of State may by regulations amend sections 243F(2) and (3) of EA02 to alter, remove or add further considerations. DBT commits to carefully consider the impacts on the CMA’s ability to carry out its functions effectively and efficiently if and when considering possible amendments to sections 243F(2) and (3) of EA02.

Secretary of State disclosures

8. Under section 243E of EA02, the Secretary of State may direct that a disclosure to an overseas authority otherwise permitted under section 243A or 243B of EA02 must not be made if the Secretary of State thinks that, in connection with any matter in respect of which the disclosure could be made, it is more appropriate:

(a) if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another country or territory (rather than by the overseas public authority to which the information is to be disclosed)

(b) if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another country or territory (rather than in the country or territory of the overseas authority to which the information is to be disclosed)

9. The role of the Secretary of State is therefore connected to the appropriateness of an authority in the United Kingdom or in another country or territory (rather than in the country or territory of the overseas authority to which the information is to be disclosed) to conduct an investigation or to bring proceedings.

10. The power of the Secretary of State to direct that a disclosure must not be made does not apply where the disclosure:

(a) is being made under a designated cooperation arrangement (that is, a disclosure under section 243C of EA02), or

(b) relates to investigative assistance which has been authorised by the Secretary of State under Part 5, Chapter 2 of the Digital Markets, Competition and Consumers Act 2024 (DMCC24) or which is being given under a qualifying cooperation arrangement as defined in that Chapter

11. While there is no explicit requirement to notify the Secretary of State of proposed overseas disclosures under Part 9 of EA02, DBT and the CMA are agreed that relevant proposed disclosures should be notified to the Secretary of State in accordance with this MoU to enable directions to be made where appropriate. Where notified of a proposed overseas disclosure, DBT will review the proposed disclosure in the light of the grounds set out in section 243E of EA02. DBT will endeavour to review notifications in a timely manner to prevent delays where possible.

12. The CMA is not expected to notify the Secretary of State in relation to disclosures described in paragraph 10 and the arrangements set out in this MoU should be construed accordingly.

13. The purpose of notifying proposed overseas disclosures under sections 243A and 243B of EA02 to DBT is to enable the Secretary of State to exercise their power under section 243E of EA02 effectively. Accordingly, only where the CMA reasonably considers, based on the information available to it, that there is no possibility that the Secretary of State would seek to direct that a disclosure must not be made under section 243E of EA02, may it decide not to notify DBT of the proposed disclosure. This could be for example where it is clear that the investigation carried out by the overseas authority could not be brought in the UK or in another jurisdiction, and there are no proceedings related to the investigation that could be brought in the UK or in another jurisdiction either.

14. In all other cases, the CMA will notify DBT before any overseas disclosure under sections 243A and 243B of EA02 takes place. Notifications are to be submitted by email to relevant officials in the Consumer and Competition Policy Directorate at DBT. Any notifications should include confirmation of:

(a) the overseas authority the information will be disclosed to

(b) the type of information which is subject to the proposed disclosure

(c) the scope and nature of the investigation or proceeding for which the disclosure is being made, including confirmation of the parties that are or may be investigated, the conduct or transactions that are or may be investigated and the legal basis for the investigation or proceedings, or potential investigation or proceedings

(d) whether disclosure would be appropriate, having had regard to sections 243A and 243B of EA02 and the relevant statutory considerations in sections 243F and 244 of EA02

(e) whether any of the grounds for a direction by the Secretary of State are engaged and, where relevant, the details of any engagement with the relevant overseas authority on that matter, and

(f) any other information the CMA considers relevant to the Secretary of State’s decision whether or not to issue a direction

15. Where the CMA has notified DBT of a proposed overseas disclosure under sections 243A or 243B of EA02 in relation to a specific investigation or proceedings and no direction is made, further overseas disclosures to the same overseas authority for the same investigation or proceeding do not need to be notified. The only exception is where there are material changes to the scope or nature of the overseas investigation or proceeding.

16. DBT will endeavour to maintain confidentiality regarding any non-public information contained in the CMA’s notification or shared by the CMA in connection with it. DBT also agrees not to use or further disclose any such information received from the CMA and not already available to or in the possession of DBT, for any purpose other than facilitating the exercise of the power under section 243E of EA02, subject to any legal obligations to disclose DBT may be under.

Streamlined procedure

17. Where the CMA considers that a proposed disclosure under sections 243A or 243B of EA02 is unlikely to raise issues of relevance to the Secretary of State under section 243E of EA02, it must notify DBT of the proposed disclosure but may request that it is considered on a streamlined basis whereby the disclosure will be subject to a lighter touch review by DBT officials (the streamlined procedure).

18. The CMA may make such a request in its notification to DBT where it considers that all of the following criteria are met:

(a) the proposed disclosure relates to an investigation or proceeding by the overseas authority carried out (or to be carried out) under the overseas jurisdiction’s competition, digital competition, or consumer protection laws

(b) based on the information available to it, the CMA believes that:

(i) the conduct or transaction being investigated (or to be investigated) is, or has been, implemented in the overseas jurisdiction

(ii) the conduct or transaction being investigated (or to be investigated) is, or has been, targeted at consumers in the overseas jurisdiction, or

(iii) in the case of a merger, the merger has been notified to the overseas jurisdiction

(c) the overseas investigation or proceeding is (or would be) civil rather than criminal in nature, and

(d) where an agreement or arrangement is in place between the UK and the overseas jurisdiction, or between the CMA and the relevant overseas authority, which governs the disclosure of such information, the proposed disclosure would be made in accordance with the terms of that agreement or arrangement

19. When requesting that the consideration of its proposed disclosure is streamlined, in addition to providing the information set out at paragraph 14, the CMA will explain in its notification why it considers the relevant criteria are met.

20. Where a notification is being considered under the streamlined procedure, DBT will aim to respond promptly, ordinarily within 5 working days (subject to exceptional circumstances). A notification which is being considered in this way will be reviewed and cleared by DBT by a senior official on behalf of the Secretary of State.

21. Where DBT officials consider that a proposed disclosure cannot be appropriately considered under the streamlined procedure (for example, because it raises potential concerns regarding the legitimate jurisdictional interests of the UK), DBT will notify the CMA within 5 working days after receipt of the notification of its intention to consider the notification under the standard procedure, as follows.

Standard procedure

22. Where the CMA considers that criteria for a disclosure to be considered under the streamlined procedure are not met, it must notify the proposed disclosure for review under the standard procedure whereby, following an initial consideration by DBT officials, the final decision will be made by the Secretary of State or another minister on the Secretary of State’s behalf. DBT will seek to respond to the CMA’s notification in a timely manner.

23. Where the Secretary of State considers in accordance with section 243E of EA02 that the proposed disclosure should not be made, the Secretary of State will issue a direction to that effect. A direction will be brought to the attention of those likely to be affected by it in compliance with the requirement on the Secretary of State under section 243E(3) of EA02 and will set out the reasons for it.

Designated cooperation arrangements for overseas disclosure purposes

24. Section 243C of EA02 allows the CMA to disclose specified information to an overseas public authority for a purpose permitted under a designated cooperation arrangement. International cooperation agreements or arrangements (whether legally binding or non-legally binding) may be designated for the purposes of the overseas disclosure gateway in section 243C of EA02, if they meet the criteria set out in that section. Designation is by regulations made by the Secretary of State under section 243C(6) of EA02.

25. The CMA will engage with DBT and provide updates on any agency-to-agency agreements or arrangements which are under consideration or negotiation.

26. Before designating a cooperation arrangement, the Secretary of State will have regard to whether the arrangement or agreement in question includes provisions which restrict or prevent:

(a) the use for another purpose of information that has been disclosed for a purpose permitted under the relevant agreement or arrangement

(b) further disclosure of information

27. In addition to having regard to these considerations, the Secretary of State will only designate an agreement where the Secretary of State is satisfied that there will be appropriate protection in the overseas country against self-incrimination in criminal proceedings and in relation to the storage and disclosure of confidential information (section 243C(8) of EA02). As set out in section 243C(9) of EA02, protection in relation to self-incrimination and the storage and disclosure of information will be considered adequate where it corresponds, or is substantially similar, to that which is provided for in UK law.

Process for the designation of cooperation arrangements entered into by the CMA

28. Where the CMA considers that a cooperation arrangement it has entered into satisfies the criteria for designation, it may formally request the Secretary of State to consider designating such an arrangement for the purposes of the overseas disclosure gateway in Section 243C of EA02.

29. When considering whether designation may be appropriate, the CMA will have regard to whether the arrangement in question meets all of the following conditions:

(a) condition A: the arrangement is between the CMA and an overseas authority

(b) condition B: the arrangement relates to cooperation between the CMA and, where applicable, other UK authorities, on the one hand, and the overseas authority or authorities, on the other, in connection with functions mentioned in section 243A(1)(b) of EA02, and

(c) condition C: the arrangement provides for reciprocal assistance to be given for those purposes

30. Where all these conditions are met, the CMA may request that the Secretary of State consider designating the arrangement in question. Requests are to be submitted by email to relevant officials in the Consumer and Competition Policy Directorate at DBT.

31. In its request, the CMA will explain how the arrangement in question meets the statutory conditions (conditions A-C as set out in section 243C(3) to (5) of EA02 and summarised in paragraph 29) and provide its assessment of whether there are appropriate protections in the overseas country against self-incrimination in criminal proceedings and in relation to the storage and disclosure of confidential information.

32. Upon receiving a request, DBT will endeavour to review it promptly. The Secretary of State or another minister on the Secretary of State’s behalf will decide whether to designate. Where cross-Whitehall collective agreement is required or stakeholder consultation is undertaken, this will be obtained or undertaken prior to DBT communicating the Secretary of State’s decision to the CMA.

33. DBT may ask the CMA to provide supplementary information to assist the minister in making a decision regarding the designation of the arrangement in question.

34. Where the Secretary of State has reached a decision in relation to the designation of a relevant cooperation arrangement (and, where relevant, collective agreement has been reached), DBT will promptly communicate the decision to the CMA, ordinarily within 10 working days.

35. In appropriate cases, an arrangement will be designated by the Secretary of State via regulations subject to the negative Parliamentary procedure. DBT commits to promptly advance the making and laying of the required statutory instrument, subject to wider UK government and departmental legislative priorities.

36. The Secretary of State has the power to revoke a designation where the Secretary of State considers that a designated cooperation arrangement has ceased to be suitable for designation. The CMA will endeavour to make DBT aware of any matters that it reasonably considers likely to be relevant to a possible revocation of a designation. DBT will endeavour to notify the CMA at the earliest possible time of an intention to revoke a designation and will carefully consider the impacts on the CMA’s ability to carry out its functions effectively and efficiently if and when considering such a revocation.

Process for the designation of treaties and international agreements entered into by UK government

37. Where the UK government has entered into a treaty or international agreement which satisfies the criteria for designation, the Secretary of State will consider designating the treaty for the purposes of the overseas disclosure gateway in Section 243C of EA02. The CMA may formally request the Secretary of State to consider doing so.

38. Where the Secretary of State has reached a decision in relation to the designation of a relevant treaty which the UK government has entered into, DBT will promptly communicate the decision to the CMA, ordinarily within 10 working days. Where cross-Whitehall collective agreement is required, this will be obtained before DBT communicating the Secretary of State’s decision to the CMA.

39. An agreement will be designated by the Secretary of State via regulations subject to the negative procedure. DBT commits to promptly advance the making and laying of the required statutory instrument, subject to wider UK government and departmental legislative priorities.

40. The Secretary of State has the power to revoke a designation where the Secretary of State considers that a designated cooperation agreement has ceased to be suitable for designation. The CMA will endeavour to make DBT aware of any matters that it reasonably considers to be likely to be relevant to a possible revocation of a designation. DBT will endeavour to notify the CMA at the earliest possible time of an intention to revoke a designation and will carefully consider the impacts on the CMA’s ability to carry out its functions effectively and efficiently if and when considering such a revocation.

Investigative assistance

General principles

41. The CMA’s ability to provide investigative assistance is set out in Part 5 of DMCC24. Section 319 of DMCC24 allows the CMA and relevant UK regulators to provide investigative assistance to overseas regulators who have functions corresponding or similar to those of the UK regulators in relation to competition, consumer protection and digital markets. Section 321 of DMCC24 makes provision about how the CMA and other relevant UK regulators are to consider whether it would be appropriate to assist an overseas regulator, and section 322 of DMCC24 makes clear that investigative assistance is subject to authorisation by the Secretary of State unless it is provided under or in accordance with a qualifying cooperation arrangement (as defined in section 319).

Secretary of State oversight

42. The Secretary of State provides appropriate oversight of the provision of investigative assistance via one of 3 mechanisms:

(a) qualifying cooperation arrangement: When a Secretary of State signs such an arrangement on behalf of the UK, the CMA (and other relevant regulators) can provide investigative assistance under and in accordance with the arrangement without further authorisation

(b) general authorisations: Where no qualifying cooperation arrangement applies, investigative assistance can also be provided where the Secretary of State has made a general authorisation for requests of a particular description under section 322(2)(b) of DMCC24

(c) specific authorisations: Finally, the Secretary of State can also provide authorisation for one or more specific requests for assistance under section 322(2)(a) of DMCC24

Qualifying cooperation arrangement

43. DBT and the CMA recognise that securing investigative assistance provisions in international cooperation arrangements can make the CMA’s investigations more effective and contribute to the sound and effective enforcement of UK competition, consumer and digital markets law. DBT and the CMA agree to pursue the negotiation of investigative assistance arrangements where beneficial and appropriate.

44. The criteria for a qualifying cooperation arrangement are set out in section 319 of DMCC24. The term refers to any cooperation arrangement:

(a) to which the UK and the country or territory of the overseas authority are parties, and

(b) which provides for the provision of mutual investigative assistance – either between the UK and the country or territory of the overseas authority, or between the CMA (or other relevant regulators) and a person or body within the overseas country or territory – in relation to competition, consumer protection, or digital matters

45. Qualifying cooperation arrangements can take the form of a legally binding international agreement, most commonly a treaty, or a non-binding arrangement, such as a memorandum of understanding^{[footnote 1]}. The negotiations of agreements (whether legally binding or non-legally binding) relating to competition, consumer enforcement, or digital cooperation to which the United Kingdom is a party will be led by DBT and any relevant UK government departments. Approval and signing of these agreements will primarily rest with UK government ministers.

46. Where investigative assistance is provided under or in accordance with such a qualifying cooperation arrangement, no further authorisation from the Secretary of State is required. Consequentially, the CMA or relevant UK regulators are not required or expected to notify the Secretary of State of requests for investigative assistance made by overseas authorities under a qualifying cooperation arrangement.

47. The CMA will endeavour to regularly inform DBT of its activities under such an arrangement (at least every 6 months). In particular, this should include the frequency and type of assistance provided, alongside any further information the CMA considers could be of interest to DBT.

48. The absence of a qualifying cooperation arrangement does not preclude the CMA from providing investigative assistance in relation to civil matters. However, the CMA may only provide investigative assistance in relation to criminal matters where the request is made by the overseas authority under or in accordance with a qualifying cooperation arrangement.

General authorisations

49. Where the CMA considers that the criteria in paragraph 50 would be met and that a general authorisation is merited, the CMA may recommend to the Secretary of State to issue such a general authorisation. DBT commits to carefully consider all recommendations from the CMA for general authorisations and will seek to respond to the CMA’s recommendations in a timely manner.

50. The Secretary of State retains full discretion to decide on the appropriateness of issuing any general authorisation, and in doing so will have regard, in particular, to the factors set out in section 322(5) of DMCC24. The Secretary of State must have regard to whether the general authorisation would be made in accordance with any arrangements or agreements to which the UK is a party (whether legally binding or non-legally binding), whether it would be more appropriate for the CMA to carry out an investigation solely for its own purposes or that action should be taken in relation to the subject matter of the request by another UK body or by a body in a country or territory other than the requesting regulator’s country or territory, and whether any assistance which the CMA would provide would be contrary to the public interest.

51. Following an initial consideration by DBT officials, the final decision on issuing a general authorisation will be made by the Secretary of State or another minister on the Secretary of State’s behalf.

52. When issuing a general authorisation, the Secretary of State may do so subject to conditions to ensure that any assistance provided is appropriate (under section 322(6) of DMCC24). A non-exhaustive list of exemplary conditions can be found in section 322(7) of DMCC24.

53. When considering issuing a general authorisation covering functions related to digital markets, the Secretary of State will seek and consider the views of the Department for Science, Innovation and Technology.

54. The Secretary of State may withdraw a general authorisation at any time (under section 322(3) of DMCC24), especially, for example, if the Secretary of State considers it is no longer appropriate for the investigative assistance permitted under the general authorisation to be provided or that assistance of that kind should be authorised in future on a case-by-case basis. The CMA will endeavour to make DBT aware of any matters that it reasonably considers to be likely to be relevant to a possible withdrawal of a general authorisation. DBT will endeavour to notify the CMA at the earliest possible time of an intention to withdraw a general authorisation and will carefully consider the impacts on the CMA’s ability to carry out its functions effectively and efficiently if and when considering such a withdrawal.

55. The Secretary of State must publish the giving and the withdrawal of any general authorisation (under section 322(4) of DMCC24). Such a publication will ordinarily be on GOV.UK.

56. Unless otherwise specified (for example, as a condition for issuing a general authorisation), the CMA is not required or expected to notify the Secretary of State of each request for investigative assistance received by it which it considers is authorised under a general authorisation. However, the CMA will endeavour to regularly inform DBT of its activities under such a general authorisation (at least every 6 months). In particular, this should include the frequency and type of assistance provided, alongside any further information the CMA considers would be of interest to DBT.

Specific authorisations

57. Where neither a qualifying cooperation arrangement nor a general authorisation is applicable, the CMA can request authorisation from the Secretary of State for one or more specific requests for assistance.

58. Under section 323 of DMCC24, the CMA must notify the Secretary of State where it has received a request for overseas assistance and is inclined to provide the requested assistance (when neither a qualifying cooperation arrangement nor a general authorisation is applicable). Notifications are to be submitted by email to relevant officials in the Consumer and Competition Policy Directorate at the Department. Any notifications should state:

(a) which overseas authority has made the request

(b) the purpose of the assistance requested, including, to the extent reasonably practicable, which powers the CMA considers it may need to exercise in order to provide the assistance

(c) the scope and nature of the investigation or proceeding for which the assistance is being requested, including details of the parties that are being, or may be, investigated, the conduct or transactions that are being, or may be, investigated and the legal basis for the investigation or proceedings, or potential investigation or proceedings

(d) a confirmation that the CMA has had regard to section 321 of DMCC24

(e) any matters which may be relevant to the factors to which the Secretary of State must have regard under section 322(5) of DMCC24 and, where relevant, the details of any engagement with the relevant overseas authority on those matters

(f) any conditions for the authorisation the CMA would consider appropriate

(g) any other information the CMA considers relevant to the Secretary of State’s decision whether or not to issue a specific authorisation

59. DBT will endeavour to maintain confidentiality regarding any non-public information contained in the CMA’s notification or shared by the CMA in connection with it. DBT also agrees not to use or further disclose any such information received from the CMA and not already available to or in the possession of DBT, for any purpose other than facilitating the exercise of the power under section 322 of DMCC24, subject to any legal obligations to disclose that DBT may be under.

60. The Secretary of State retains full discretion to decide on the appropriateness of issuing any specific authorisation, and in doing so will have regard, in particular, to the factors set out in section 322(5) of DMCC24. The Secretary of State must have regard to whether the request is made in accordance with any arrangements or agreements to which the UK is a party (whether legally binding or non-legally binding), whether it would be more appropriate for the CMA to carry out an investigation solely for its own purposes or that action should be taken in relation to the subject matter of the request by another UK body or by a body in a country or territory other than the requesting regulator’s country or territory, and whether any assistance which the CMA provides would be contrary to the public interest.

61. Following an initial consideration by DBT officials, the final decision on issuing a specific authorisation will be made by the Secretary of State or another minister on the Secretary of State’s behalf. DBT will seek to respond to the CMA’s notification in a timely manner. This would ordinarily be within approximately 20 working days, but the timing could be shorter depending on the type of case and specific circumstances.

62. When issuing a specific authorisation, the Secretary of State may do so subject to conditions to ensure that any assistance provided is appropriate (under section 322(6) of DMCC24). A non-exhaustive list of exemplary conditions can be found in section 322(7) of DMCC24.

63. When considering issuing a specific authorisation covering functions related to digital markets, the Secretary of State will seek and consider the views of the Department for Science, Innovation and Technology.

International cooperation arrangements

64. Cooperation agreements are broadly about establishing how competition and consumer authorities may cooperate with their overseas counterparts. Among other things, they can include arrangements for sharing confidential information with or without consent of the person or business the information relates to. More advanced agreements may also include arrangements on investigative assistance.

65. Where it is beneficial and appropriate, DBT, with the support of the CMA, will endeavour to negotiate relevant agreements or arrangements (whether legally binding or non-legally binding) with overseas governments to facilitate cooperation with overseas competition and consumer authorities.

66. In advance of the negotiation of an international cooperation agreement (for example, a treaty), DBT, the CMA and any other relevant UK government department may agree guidelines for collaboration including to outline the roles and responsibilities, and procedures that the UK negotiation team will follow during the negotiation process.

Review Period

67. DBT and the CMA will maintain regular communication on the functioning of this MoU through the points of contact. Minor changes to the MoU may be agreed in writing between DBT and the CMA. If, through regular communication, it becomes clear the MoU requires substantive changes, the MoU will be revised.

Points of Contact

68. The CMA can contact DBT through established named contacts and the shared mailbox: CompetitionPolicy@businessandtrade.gov.uk.

69. DBT can contact the CMA through established named contacts and the shared mailbox: oiarequests@cma.gov.uk.

Confidentiality and Data Protection

70. DBT and the CMA will comply with data protection legislation in relation to processing personal data when acting as data controllers or data processors.

Signatories

Signed on behalf of DBT: Alex Williams, Deputy Director, Competition Policy, 6 January 2025

Signed on behalf of CMA: Chris Prevett, General Counsel, 6 January 2025

1. Memoranda of understanding between competition authorities do not meet the requirement to be a qualifying cooperation arrangement. ↩