All of the Competition and Markets Authority’s (CMA) infringement decisions in the building and construction industry involved a dawn raid, new data shows.
A report by law firm CMS reviewed all 164 investigations conducted by the CMA and appeals to the Competition Appeal Tribunal (CAT) since the Competition Act 1998 came into force in March 2000.
It shows that 88% of investigations in construction resulted in an infringement decision, all of which involved some form of anti-competitive agreement or concerted practice (most commonly around bid-rigging).
CMS said the industry’s high reliance on bidding processes and its historically lower awareness of antitrust laws are likely to increase the risks of the most concerning types of collusive behaviour, which can be effectively penalised through infringement decisions.
All of these investigations also included an unannounced or planned dawn raid. CMS said this is very high compared with the proportion carried out in other sectors where more than 10 investigations were conducted and closed.
It is believed these kinds of operation are the most effective for the CMA to obtain evidence and avoid risking missing materials or the destruction of evidence.
Industry on CMA’s radar
CMS said construction “is still very much on CMA’s radar”. It added that historically, lower awareness of competition law within the sector is likely to have resulted in increased enforcement activity.
“Companies active in this sector need to be particularly cautious when it comes to interactions with competitors,” the report advised. “Regular compliance training sessions, whether that be refreshers for long-term employees or targeted modules for new joiners, would certainly be a worthwhile investment for these companies.”
Building and construction is also among the sectors with more than 10 investigations where these have taken longer, typically ranging from 23 to 40 months.
In the case of construction, the number of companies under investigation could have lengthened the proceedings. The CMA is required to manage each party’s rights of defence.
Director disqualifications on the rise
The report also shows that across all sector investigations, directors were involved in 70% of cases that led to an infringement decision, yet the CMA pursued director disqualification (which it must do in court or by settling with the director) in only 18% of these cases.
All disqualifications happened in cases initiated within the last decade, which CMS believes signals a shift in CMA policy toward considering director disqualification.
The regulator now considers director disqualification in every case it investigates, with disqualification terms of up to 15 years.
Since the Competition Act came into force, 32 CMA decisions have been appealed to the CAT. Over a third of these appeals have been successful, and a further third were partially successful. In 14 cases, appellants managed to reduce the fines imposed by the CMA.
