The UK government has relaxed the application of UK competition law to certain types of agreements across sectors.

By John D. Colahan and Anuj Ghai

On 21 May 2020, the CMA published a register containing links to each public policy exclusion order and notified agreement related to COVID-19 in the UK. A public policy exclusion order is a legislative tool used by the Secretary of State for Business, Energy and Industrial Strategy to relax UK competition law for certain agreements that may normally be considered anti-competitive.

The Secretary of State has made several public policy exclusion orders to enable a coordinated response to the COVID-19 pandemic. In March, for example, the UK government considered it necessary to relax the application of UK competition law to certain types of agreements in the groceries sector, in order to ensure a smooth and efficient supply of food and essential grocery products to isolated and vulnerable consumers.

In particular, the government’s Groceries Public Policy Exclusion Order enables grocery suppliers to:

  • Coordinate on (i) limiting purchases of particular groceries, (ii) setting the range of groceries to be supplied, (iii) assisting particular groups of customers (g., critical workers and vulnerable groups), (iv) setting store closure and opening hours, and (v) supplying areas of the country vulnerable to shortages
  • Share labour and/or facilities
  • Exchange information on day-to-day stock positions and services provided by logistic service providers

Similarly, the UK government passed the Health Services Exclusion Order permitting independent healthcare providers to work together to meet additional capacity requirements, including by sharing potentially commercially sensitive information. The government’s Health Services Exclusion Order allows NHS bodies and independent healthcare providers to:

  • Exchange information on capacity (including staff and facilities)
  • Coordinate the deployment of staff
  • Share facilities
  • Engage in joint purchasing
  • Coordinate on the treatments offered by different providers.

Other public policy exclusion orders have been passed in relation to Solent maritime crossings and health services for patients in Wales.