Area Plans under the MER UK Strategy—Competition Law Issues
Produced in partnership with Judith Aldersey-Williams of CMS
Area Plans under the MER UK Strategy—Competition Law Issues

The following Energy guidance note Produced in partnership with Judith Aldersey-Williams of CMS provides comprehensive and up to date legal information covering:

  • Area Plans under the MER UK Strategy—Competition Law Issues
  • Introduction
  • Area Plans
  • Guidance on Area Plans
  • Area Plans and Exchange of Commercially Sensitive Information
  • Potential exemptions/defences
  • No appreciable effect on competition
  • A101(3) exemption
  • Future Production Information—the ‘by object’ challenge

Introduction

The exchange of commercially confidential information between competitors is one type of arrangement which has been identified by competition authorities as falling within The prohibition on restrictive agreements—overview a Chapter I prohibition of the Competition Act 1998 and Article 101 of the Treaty on the Functioning of the European Union (TFEU) (see Practice Note: Information exchange and disclosure—managing heightened competition risk). It is for this reason that many companies’ internal competition policies, along with those of trade associations such as Oil & Gas UK, forbid discussion with competitors of commercially confidential information, at least without specific legal advice. However, in some cases it may be necessary to exchange commercially confidential information, in particular information as to proposed future investments and future production, in order to produce an Area Plan. This Practice Note analyses the potential risks of such exchanges and identifies some bases on which such exchanges may be conducted in a manner which is consistent with UK/EU competition law.

Area Plans

Licensees and other owners of upstream oil and gas infrastructure are under a legal obligation to comply with the Maximising Economic Recovery UK Strategy (MER UK Strategy) (see Practice Note: The MER UK Strategy for more on this). A principal objective of the MER UK Strategy is to encourage licensees and other owners of upstream