The Use of Competition Powers by Sector Regulators – the Origins, Experience and Potential Future of the UK's Concurrency Arrangements

This paper discusses the UK's concurrency arrangements under which sector regulators can apply aspects of competition law to their industry. It is frequently claimed that concurrency is a unique aspect of UK competition policy. However, this paper argues that it arose during the 1980s as one aspect of an almost uniquely pro-competitive regulatory framework for privatised telecommunications and other UK infrastructure industries. The paper discusses the origins of these formal concurrency arrangements and their use in the UK since the 1980s. It also compares the UK with other EU and OECD countries over the role of ex post competition policy relative to ex ante regulation and the interactions between sector regulators and competition authorities. It emphasises the role of ‘informal' concurrency as well as ‘formal' concurrency in the UK and other countries. The paper concludes with a discussion of the likely prospects for the UK under the enhanced concurrency regime established in 2013 and makes some recommendations for the future. Developing and implementing effective methods to evaluate the net welfare benefits of the enhanced concurrency regime will be crucial both in its own right and in establishing a robust deterrence strategy against anti-competitive behaviour in industries with sector regulators