CMA’s problems ‘greater than one man’ - competition lawyers reflect on ousting of regulator's chair

UK government cites pro-growth agenda as Competition and Markets Authority chair Marcus Bokkerink resigns

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Antitrust lawyers in the City say the resignation of Competition and Markets Authority’s chair Marcus Bokkerink underscores the UK government’s pro-growth agenda, but warn that a fresh approach at the CMA is not a “cure-all for economic sluggishness”.

Bokkerink, a former senior partner at Boston Consulting, was asked to step down this month by business secretary Jonathan Reynolds, who hinted at the government’s frustration with the CMA’s approach to merger clearance.

Reynolds said: “We want to see regulators, including the CMA, supercharging the economy with pro-business decisions that will drive prosperity and growth, putting more money in people’s pockets.”

Bokkerink will be temporarily replaced by former head of Amazon UK Doug Gurr while the CMA searches for a new chair.

The regulator drew criticism from the technology industry in 2023 for initially blocking a major takeover between Microsoft and video games-maker Activision Blizzard, before later ushering the merger through. It also recently approved a previously delayed merger between mobile network providers Vodafone and Three, which according to a briefing from Cleary Gottlieb, was given “against the backdrop of widespread scepticism of consolidation in the mobile telecommunications sector across Europe”.

The CMA has changed chairs during their term previously – with Lord Tyrie stepping down as chair during the previous Conservative administration in 2020 – but Bokkerink’s exit was seen as overtly politically motivated.

Willkie Farr & Gallagher competition partner Rahul Saha suggested that Gurr’s appointment as Bokkerink’s interim replacement signalled the government’s dissatisfaction with the CMA’s approach and its impact on the UK’s business backdrop.

Saha noted: “Replacing Bokkerink with the former UK country manager of Amazon was one way to signal that the government is unhappy with the CMA’s interventionist approach, creating a perception that it is difficult to invest in the UK.”

He argued that this perception, rooted in the CMA’s stringent mergers record, had been acknowledged by CMA CEO Sarah Cardell, who emphasised a shift towards a more “rounded, informed” analysis to facilitate investment.

Ronan Scanlan of Steptoe, writing in a series of posts on LinkedIn, highlighted systemic issues within the CMA that transcended individual leadership. He argued: “The problems facing the CMA are greater than one man. They largely reflect systemic issues with reforms stretching back to 2014 that have impacted the agency’s day-to-day resourcing and strategic governance.”

He added it was “a real shame recent merger control investigations have undermined the entire mission of the CMA”. He offered constructive comments on potential reforms, adding: “There is a limit to what a competition regulator can do to generate growth. The CMA cannot be a cure-all for economic sluggishness.”

Scanlan called for a fundamental overhaul of the CMA’s structure, advocating for leaner decision-making processes and better resourcing at junior and mid-levels to restore the agency’s credibility. He said: “The issues here are serious but manageable and are less about retrenchment as the need for overdue reorganisation.”

Alex Haffner, a competition partner at Fladgate, viewed Gurr’s appointment as a strategic move, stating: “[It] cannot be pure coincidence, coming as it does at the same time as the UK government is banging the drum for its growth agenda and calling regulators to account for their policies on stimulating growth.”

Haffner noted that Gurr’s commercial background contrasted with Bokkerink’s consulting experience, suggesting a potential shift in CMA enforcement policy.

Damien Geradin of Geradin Partners criticised the emphasis in the government’s press statement on Gurr’s Amazon background, calling it “frankly ridiculous/insulting at a time when the CMA is called to implement the [Digital Markets, Competition and Consumers Act 2024]”, which was recently implemented.

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