CMA: Updated Procedural Complaints Guidance for All Enforcement Cases

• The CMA has updated its procedural complaints guidance for Competition Act, market, merger, digital market, and direct consumer enforcement cases.
• The Procedural Officer handles Competition Act cases, while the Procedural Complaints Adjudicator addresses digital market and direct consumer enforcement issues.
• Both roles are independent and aim to resolve procedural issues quickly and efficiently.
• The Procedural Officer can review specific issues like deadlines, confidentiality redactions, document disclosure, and oral hearing arrangements, but not substantive case matters.
• Parties must apply for a review within five working days of the Senior Responsible Officer's decision, after attempting to resolve the issue directly.

Adhering to this strict five-working-day deadline is paramount for parties wishing to challenge procedural decisions effectively.

The Competition and Markets Authority (CMA) has established a clear framework for parties to address procedural concerns arising during its various investigations. This guidance, which has recently been updated to align processes across different types of cases, outlines the roles, scope, and application procedures for raising procedural issues that cannot be resolved directly with the case team. It is designed to ensure fairness and efficiency in the CMA's enforcement actions, covering Competition Act, market, merger, digital market, and direct consumer enforcement cases.

Recent amendments to this guidance reflect a harmonization of procedures across merger and market investigation phases, and explicitly include digital markets, direct consumer enforcement, and the Office for Interoperability and Markets (OIM) functions. The CMA has also published specific decisions from the Procedural Complaints Adjudicator, such as decisions 2026/1 and 2026/2 related to direct consumer enforcement, and a Procedural Officer decision concerning Flynn Pharma, providing practical examples of the application of this mechanism.

Central to the CMA's procedural complaints guidance are two independent roles: the Procedural Officer and the Procedural Complaints Adjudicator. The Procedural Officer is designated for Competition Act, market, and merger cases, serving as an avenue for parties to raise procedural issues that remain unresolved after initial attempts with the responsible CMA group or staff member. This officer also presides over oral hearings in Competition Act investigations, ensuring an impartial process.

For digital market competition regime cases and direct consumer enforcement matters, an independent Procedural Complaints Adjudicator is appointed. Both the Procedural Officer and the Adjudicator operate independently from the specific CMA investigations, case teams, and decision-makers involved. Their primary objective is to facilitate the swift, efficient, and cost-effective resolution of procedural issues, thereby upholding due process within the CMA's enforcement activities. In direct consumer enforcement cases, a CMA staff member not involved in the day-to-day investigation or as a decision-maker will chair oral hearings or consider procedural complaints.

The types of procedural issues that can be brought before the Procedural Officer or Procedural Complaints Adjudicator vary depending on the specific case type. For significant procedural complaints in Competition Act investigations, the Procedural Officer is empowered to make determinations on a defined set of matters. These include disputes over deadlines for parties to respond to information requests, submit non-confidential versions of documents, or provide written representations concerning the Statement of Objections, Supplementary Statement of Objections, or any Draft Penalty Statement.

Additionally, the Procedural Officer addresses requests related to confidentiality redactions of information found in documents on the CMA’s case file, within the Statement of Objections, a Draft Penalty Statement, or the final decision. Issues concerning the disclosure or non-disclosure of specific documents on the CMA’s case file, as well as matters pertaining to oral hearings, such as scheduling dates, also fall within the Procedural Officer's purview. It is crucial to note that the Procedural Officer cannot review decisions beyond these specified categories, such as those concerning the scope of information requests or the substantive merits of a case.

A party seeking the intervention of the Procedural Officer must first attempt to resolve the issue with the Senior Responsible Officer (SRO) of the investigation. The Procedural Officer becomes involved only upon a party's request and after this initial attempt at resolution has been unsuccessful. The application process is stringent, requiring parties to act promptly following notification of the SRO's decision on the matter in question.

Specifically, an application must be submitted as soon as possible, and in any event, within five working days of receiving the SRO's notification. The application itself should be concise, not exceeding five sides of A4 paper, and must include the name and contact details of both the applicant and any legal representatives acting on their behalf. Adhering to this strict five-working-day deadline is paramount for parties wishing to challenge procedural decisions effectively.

Lawyers representing parties in CMA Competition Act, market, merger, digital market, or direct consumer enforcement cases must be aware of this guidance to effectively challenge procedural decisions. Understanding the role of the Procedural Officer and Adjudicator, the scope of review, and the strict five-working-day application deadline is critical for ensuring due process and protecting client interests in ongoing investigations.

Source: Original reporting via GOV.UK guidance