Competition Law (Antitrust) in Scotland

Scotland's system of competition law

Scotland has a well-developed system of competition law, derived primarily from previous membership of the European Union and, post the UK’s exit from the European Union, principally under the Competition Act 1998.

The system, which is enforced by the Competition and Markets Authority (CMA), addresses two main areas of concern:

The control of anti-competitive agreements between competitors (Chapter I prohibition of the Competition Act 1998)

The prohibition of the abuse of a dominant position the (Chapter II prohibition of the Competition Act 1998)

Competition Act 1998

Chapter I of the Competition Act 1998 (the Competition Act) prohibits any agreement or concerted practice which has the object or effect of preventing, restricting or distorting competition unless an exemption from the prohibition applies. Companies and individuals found to have breached the Chapter I prohibition are liable to fines of up to a maximum level of 10% of worldwide turnover for companies.

Additionally, unlike many systems of control of anti-competitive behaviour, the UK system envisages the possibility of criminal penalties for those individuals within an undertaking who participated in price-fixing, bid-rigging, market sharing or limitation of output or supply and these individuals may be subject to the imposition of a prison sentence of up to five years’ duration, unlimited fines, or both. Individuals in an offending undertaking may also be disqualified from acting as a director for up to 15 years.

Prosecutions in Scotland

In Scotland, the Lord Advocate is responsible for all prosecutions and exercises the same powers as the (English) Serious Fraud Office through the National Casework Division (NCD) of the Crown Office and Procurator Fiscal Service (COPFS). The CMA and COPFS cooperate to investigate and prosecute criminal cartel cases in Scotland.

There is a programme of the CMA offering leniency from both penalties and criminal liability for undertakings which whistle blow on illegal activity in which they have participated, subject to certain rules.

Penalties and damages

The penalties regime for a breach of the Chapter II Prohibition are the same as for Chapter I, save that there are no criminal penalties. Both the Chapter I and Chapter II prohibition can be enforced by the CMA and before the Scottish Courts.

Finally, parties who have suffered as a result of a breach of competition law are able to bring an action for damages before the Court of Session within the limitation period.

Communications with lawyers, including in-house lawyers and foreign lawyers, will, in general, benefit from legal privilege in relation to competition law proceedings in Scotland.

Legislation on Merger Control exists at national level with a voluntary notification regime dependent on the nature of the businesses, their turnover and market share.

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