UK CMA’s proposed commitments in Housebuilders investigation signal pro-growth shift in approach

On 9 July 2025, the UK Competition and Markets Authority (“CMA”) announced its intention to accept commitments in its investigation into suspected anti-competitive information sharing by seven major housebuilders, including a £100m payment to affordable housing programmes. This would close the CMA’s investigation without any final decision or admission of liability, and would signal a marked shift in the CMA’s approach to enforcement.

The proposed commitments are not yet finalised: interested third parties are invited to submit comments to the CMA by 24 July 2025. The CMA’s change in approach takes place against the backdrop of political pressure to promote UK economic growth and investment (as discussed in our earlier Law-Now) and has already attracted some public criticism. However, the CMA has staunchly defended its proposed approach, emphasising the importance of improving the “pace” of investigations as part of its "4Ps" strategic framework (focussed on pace, predictability, proportionality and process).

If the proposed commitments are ultimately accepted in this case, it may indicate an increased willingness by the CMA to consider commitments proposed by other businesses facing competition investigations, in particular in sectors critical to the UK economy. Agreeing commitments not only brings an investigation to a close more swiftly but also avoids any admission of liability on the part of businesses involved and may help reduce the risk of subsequent damages actions.

Background

The CMA’s investigation into suspected anti-competitive information sharing by housebuilders followed on from the CMA’s market study into the housebuilding sector, which concluded in February 2024. The CMA identified concerns that housebuilders may have exchanged commercially sensitive information, including information relating to house prices, sales volumes, property viewings and buyer incentives (such as free upgrades and stamp duty refunds). Exchange of commercially sensitive information between competitors will usually be considered a serious infringement of competition law and may result in substantial fines being imposed.

The CMA has powers to accept binding commitments from a business as a means of closing an investigation into alleged anti-competitive conduct without reaching a final decision, where it is satisfied that the commitments address the competition concerns identified. However, its procedural guidance states that it is very unlikely to accept commitments in cases involving secret cartels between competitors, and that it will not accept commitments in circumstances where it considers that not to complete its investigation and make a decision  would undermine deterrence.

The proposed commitments in this case would require the seven housebuilders to:

• agree not to share certain types of information unless publicly available;
• support the development of competition law guidance for the housebuilding sector in relation to information exchange;
• make a payment of £100 million to the UK government to be used for affordable homes programmes; and
• provide mandatory annual competition law compliance training to all relevant employees.

A significant shift from the CMA’s previous approach

The use of commitments to date has been more common in cases involving alleged abuse of dominance, rather than anti-competitive agreements. The CMA has previously accepted commitments in a handful of cases involving anti-competitive agreements (for example, Showmen’s Guild (2017) and Capacity sharing between P&O Ferries and DFDS (2022)), but none of those were primarily concerned with anti-competitive information sharing. As explained above, exchange of competitively sensitive information between competitors is usually regarded as a serious infringement of competition law and would typically be expected to result in potentially significant fines. This would be the first time that commitments have been accepted in this type of case.

The proposed payment of £100m to affordable homes programmes would be by far the highest total payment made in the context of commitments to date, but more importantly it also signals a shift in how the CMA determines what amount is acceptable when payments are made to a third party as part of a commitments decision.

In previous cases, payments have been linked - at least in approximate terms - to the estimated harm caused by the alleged anti-competitive conduct (as illustrated by the recent Vifor Pharma case, where a £23m payment was made to the NHS in the context of commitments accepted in connection with alleged abuse of dominance). In contrast, in the Housebuilders investigation a CMA spokesperson has suggested that the proposed £100m payment is linked to what the likely fine would have been if the investigation had ultimately resulted in an infringement decision.

This is a potentially significant shift in approach. However, exactly how the figure has been calculated is unclear. Earlier this year a total fine of just over £104m was imposed by the CMA on four banks in respect of anti-competitive information sharing relating to pricing of UK government bonds, but there is no “standard” amount of fine in this type of case: all fines are calculated on a case-by-case basis, from a starting point based on the relevant turnover of the companies involved and the seriousness of the infringement. In the UK government bonds case the sharing of price-related information was described by the CMA in its recently published infringement decisions as “amongst the most serious” types of infringement when explaining its calculation of appropriate penalties. However, it appears that in the Housebuilders investigation the CMA has assessed the information sharing as a less egregious breach, in respect of which commitments are an appropriate option to bring the investigation to a close.

The impact of the “pro-growth” agenda

As already noted above, the CMA is under significant political pressure to promote economic growth and investment in the UK. The CMA’s Chief Executive Sarah Cardell has stated that the proposed approach reflects the CMA’s commitment to “tackling anti-competitive behaviour and protecting consumers, especially in areas that are critical for economic growth and consumer spending.” The CMA has also emphasised that accepting commitments will enable it to take swifter targeted action in line with the “pace” element of its 4Ps strategic framework– avoiding a lengthy investigation and potential appeals – and deliver an immediate boost to affordable homes against the backdrop of the UK Government’s announcement in January 2025 that it plans to create 1.5 million new homes in the next 5 years.

It is also notable that the CMA’s report on the market study into housebuilding concluded that the exchange of competitively sensitive information was not a primary driver of the persistent under-delivery of new homes in the UK. The CMA considered that such conduct could nonetheless weaken competition in the market, but the wider picture may have been a consideration in bringing the formal investigation swiftly to a close.

Next steps and potential implications for businesses

The CMA has invited representations from interested third parties on the proposed commitments until 24 July 2025. Questions have been raised in Parliament as to whether the proposed payment of £100m is sufficiently high relative to the companies’ operating profit, and whether the acceptance of commitments – without any formal infringement decision – makes it more difficult for individuals affected by the conduct to obtain redress. However, the CMA has staunchly defended its proposed approach, emphasising that the payment will provide immediate benefits across the UK without further lengthy investigation.

If the proposed commitments are ultimately accepted in this case, it may indicate that the CMA will be more open to considering commitments proposed by other businesses facing competition investigations (whether currently or in the future), in particular in sectors critical to the UK economy. In addition to bringing an investigation to a close more quickly, reducing both financial and management time costs, a commitments decision also avoids any admission of liability and may help reduce the risk of subsequent damages actions.

For more information, please reach out to Jacqueline Vallat or Ruth Allen, or your usual contact at CMS.

Article co-authored by Marelize Abercrombie, Trainee Solicitor at CMS.