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FCA prepares for new competition powers

Financial Services analysis: What are the competition concerns in the context of financial services? Lucy Frew considers the likely implications of the Financial Conduct Authority's (FCA) new competition powers.

FCA: Competition Concurrency Guidance--Consultation, LNB News 15/01/2015 15

The FCA are consulting on procedural guidance relating to the competition powers they will get on 1 April 2015, and on minor amendments to the FCA Handbook. The FCA specifically seek views on draft guidance on their powers under the Competition Act 1998 (CA 1998), draft guidance on market studies and making market investigation references, and a draft legislative instrument to introduce minor amendments to the FCA Handbook. The procedures aim to ensure the FCA use their competition powers effectively and efficiently, benefitting consumers through detecting, enforcing against and deterring anticompetitive behaviour by firms. The period for consultation ends on 13 March 2015.

What are the key competition concerns in the financial services sector?

Generally speaking, the FCA is concerned with market features that distort the market and negatively affect the consumer, whether resulting from deliberate schemes by firms that are able to leverage a position of power, or inefficiencies such as information failure. For instance, the FCA is interested in curbing anti-competitive agreements among firms, such as price-fixing agreements. The goal is to eliminate market features that impede competition, promoting lower prices and more choice for the consumer. Financial sector firms have varying concerns relating to competition depending on their individual business model and perspective. A small start-up is likely to have a rather different view to a large, well established business.

How is the FCA intending to frame market studies and investigations?

The FCA will be able to conduct market studies under either the Financial Services and Markets Act 2000 (FSMA 2000) or the Enterprise Act 2002 (EA 2002). Whether the FCA chooses to use FSMA 2000 or EA 2002 will be determined on a case-by-case basis, bearing in mind the need to cooperate with the Competition and Markets Authority (CMA) to avoid duplicative effort. The procedures involved in producing a market study are similar under FSMA 2000 and EA 2002, but it should be noted that the FCA is limited when requiring information under FSMA 2000 to those firms it regulates. The purpose of a market study is more general than that of an investigation; the idea is to understand what features within a given market are working or not working to ultimately benefit consumers. If, on the other hand, the FCA thinks that a feature of a relevant market is distorting competition, it may make a market investigation reference to the CMA requesting it to conduct further investigation.

What are the key proposed changes to the FCA Handbook to prepare for the con-current competition powers?

Two amendments to the Supervision Manual detail the obligation of authorised firms to inform the FCA of any infringement, or possible infringement, of competition law. Authorised firms are already under an obligation to notify the FCA of any occurrence of which the FCA would reasonably expect notice--these amendments make it clear that this obligation applies to competition law matters as well. Unlike the other changes to the FCA's powers discussed in the Consultation Paper, this notification requirements applies to authorised firms only, although it applies to both regulated and unregulated activities.

What preparation has already occurred in the run-up to the new powers?

The FCA has prepared draft guidance on its powers under CA 1998, as well as guidance on its market studies and ability to make market investigation references under FSMA 2000 and EA 2002. It has also drafted proposed amendments to the FCA Handbook reflecting its concurrent competition powers. The amendments and the guidance documents have been published in a consultation paper, the FCA Competition Concurrency Guidance and Handbook Amendments, and comments have been solicited. In addition, the FCA has entered into a memorandum of understanding with the CMA detailing how information will be shared and cases allocated between them, on the basis of the principle that the regulator who is best placed to take on the task will do so.

Are there concerns that the FCA will not be ready to exercise these powers?

While there are no particular concerns that the FCA will not be ready to exercise these powers come April, the impact of any delay is unlikely to cause significant problems because all undertakings that will be subject to the FCA are already subject to competition law.

What should lawyers do in the run-up to the new powers coming into force?

Lawyers should be aware that their clients who are regulated entities under the FCA will need to report to the FCA any sanctions imposed by the CMA, or where it has or may have violated competition law, or potentially any other competition related issue of which the FCA would reasonably expect notice. In addition, the FCA may be requesting information of clients under both FSMA 2000 and EA 2002.

Interviewed by Nicola Laver

This article was first published on Lexis®PSL Financial Services on 2 February 2015.