Following a Competition and Markets Authority ("CMA") investigation into suspected breaches of competition law by a number of housebuilders, the CMA is consulting on proposed commitments put forward by the housebuilders.
The commitments process is a way to resolve a CMA investigation with no finding of a breach (and there has been no finding or admission of a breach in the housebuilders' case) and no penalties imposed.
The CMA intends to accept the commitments offered by the housebuilders, subject to any representations received through the consultation. The consultation will close at 17:00 on 24 July 2025.
The housebuilding investigation
In February 2024 the CMA launched an investigation under Chapter I of the Competition Act 1998 into suspected breaches of competition law. The CMA suspected that seven of the UK's largest housebuilders had been sharing commercially sensitive information with each other and with other housebuilders, including:
- the pricing of agreed sales;
- incentives offered to buyers;
- the fact particular properties had been reserved, sold, cancelled, exchanged or completed, as well as the numbers in each category at particular developments; and
- the numbers and nature of property viewings.
The suspected information sharing was directly between housebuilders and also via agents or consultants acting on their behalf (what's known in competition law as a 'hub and spoke' arrangement).
The CMA's preliminary view was that this suspected sharing may have affected competition in the supply of new build properties and/or the purchase of land in Great Britain.
Housebuilders' proposed commitments
The commitments proposed by the housebuilders would be in place for five years, and are as follows:
- to agree not to share specified categories of information with other housebuilders;
- to make a combined payment of £100 million to the UK Government, to be used to support affordable housing programmes throughout the UK;
- to support the Home Builders Federation and Homes for Scotland in creating guidance on information sharing for the housebuilding industry;
- to enhance internal compliance measures including annual compliance statements and training programmes; and
- to commit to various other compliance and reporting measures, including appointing a compliance officer responsible for carrying out internal audits, implementing the required compliance training program and delivering updates / reports to senior management and the CMA.
In the event that any commitments are breached, the relevant party would have to ensure the breach ceases immediately, delete any information it had received / request the deletion of any information it had sent, issue reminders on competition law compliance and inform the CMA ASAP and in any case within ten working days.
Consultation process
The CMA has published a notice of its intention to accept the commitments, having taken the provisional view that they would address its earlier concerns. Responses to that notice should be submitted by email to housebuilders-consultation@cma.gov.uk with the subject line ‘Case 51392 – Response to housebuilders proposed commitments’. The consultation closes at 17:00 on 24 July 2025.
The CMA has confirmed that it will not publish responses received through the consultation, though information may be used in public documents. Respondents should identify information they consider to be sensitive within their consultation response, along with an explanation of the sensitivity.
Penalties for a breach of competition law
A business found to have breached competition law is liable to a fine of up to 10% of its global group turnover, as well as being exposed to damages claims by customers or competitors who suffered a loss as a result of the breach. It will also be excluded from most public procurement opportunities. Company directors can also be liable to disqualification for up to 15 years. However, if commitments are accepted then the CMA will make no decision on the existence of a breach, meaning no fines or disqualifications and no procurement exclusions or damages claims (or at least no 'follow-on' claims, in which the court is bound by a CMA decision that a breach took place).
Even in the absence of commitments (and before matters get to the stage of an investigation), fines and director disqualifications can usually be avoided by being the first participant in a competition law breach to report it to the CMA, under its 'leniency' program. Any business that thinks it may have breached competition law should therefore seek legal advice ASAP.
Our team has significant experience of advising clients on information exchange issues, as well as with implementing compliance programs and training to mitigate the risk of competition issues arising. If your business needs assistance with these or any other competition law matters, please get in touch with Charles Livingstone, Jamie Dunne or your usual Brodies contact.
