On 26 September 2021, the Department for BEIS announced it has exempted the fuel supply industry from UK competition law for the purpose of sharing information and optimising supply. This follows the disruption of fuel supply caused by shortages of lorry drivers, partly resulting from many EU drivers leaving the UK after Brexit.

A limited protection

It is worth stressing the new exclusion is limited in its industry scope, duration and geography. 

Firstly, it is made through a Qualifying Protocol under the fuel supply exclusion order 2012 (FSEO-2012) and only applies to the fuel supply industry. For the purposes of FSEO-2012, a "Qualifying Protocol" is an agreement between the Secretary of State and designated persons that concerns fuel distribution in the event of a fuel supply disruption.

Secondly, it is temporary in nature and will only remain activated for the “duration of the fuel supply disruption”. No time period has been published but if government is right in predicting disruptions will be short-lived, the exclusion may not be applicable for long. 

Thirdly, the scope is limited to the exclusion from UK competition law.  If, for example, any conduct have anti-competitive effects in EU territories, EU competition law rules could still apply.

What is on the horizon?

Two exclusion orders were implemented in 2020 in the early stages of the Covid-19 pandemic in relation to the health services and groceries sectors, applicable to qualifying agreements notified to the Secretary of State. However, such orders are rare.

The decision to now temporarily exempt the fuel supply industry from UK competition law raises questions about what lies ahead for other sectors. Lorry driver shortages are reported to also have had a negative impact in other sectors, e.g. deliveries of food and pharmaceuticals and it remains to be seen whether government will consider further exclusion orders to be needed. The wisdom of such an approach might be questioned, however, as it would perhaps alleviate the symptoms, rather than finding a cure for underlying causes.