Competition round-up: Summer 2012

As most of us are now returned from our summer holidays, I thought I’d take advantage of the ‘back to school’ feeling with a round-up of the most significant competition cases since Easter. This also provides a good excuse to highlight the best blogs from the Competition Bulletin’s first couple of months.

I’ll start with a case that should, but probably won’t, make the law reports: the decision of the Appeal Panel of the Rugby Football Union, which held in an appeal by London Welsh that the RFU rules on primacy of tenure are contrary to Articles 101 and 102 TFEU and therefore void. The case is notable not only for the finding itself, but also because it was heard and decided so quickly – arguments which would take days in the High Court (and probably weeks in the CAT) were heard over the course of a day, and the 38-page judgment completed the following day. James Segan blogged on the case here.

There has been much good news for claimants in follow-on damages claims. Possibly the biggest development of the last term is that the CAT has, at long last, awarded final damages in such a case: see 2 Travel Group Plc (In Liquidation) v Cardiff City Transport Services Ltd [2012] CAT 19. As Tom Richards pointed out in his blog, the judgment is required reading for anyone contemplating an exemplary damages claim, although it does not necessarily open the floodgates to similar claims. The other good news for claimants is the Court of Appeal’s decision in Deutsche Bahn & AG & Ors v Morgan Crucible Company plc & Ors [2012] EWCA Civ 1055, holding that the two year limitation period for bringing follow-on claims does not begin to run against any addressee of a decision until the time for appealing has expired for all addressees. See Andrew Scott’s blog here.

Penalties for competition law infringements came under particular scrutiny. Paul Luckhurst highlighted in his blog on Interclass Holdings v OFT [2012] EWCA Civ 1056 that the Court of Appeal had borrowed criminal law principles to help decide what penalties should be imposed on cartelists. In Luxembourg, the General Court held that the existence of “imprecise legal concepts” was no excuse for Microsoft’s failure to share interoperability information with its competitors – see Ravi Mehta’s blog here.

Ofcom will have been pleased by two important telecoms decisions from the Court of Appeal, both stressing the breadth of its discretion in dispute resolution. Telefonica O2 UK Limited and others v British Telecommunications Plc  [2012] EWCA Civ 1002 concerned its discretion to resolve telecoms disputes (see Emily Neill’s blog here); British Telecommunications Plc v Ofcom  [2012] EWCA Civ 1051 focused on the regulator’s particular discretion to order repayment as part of its dispute resolution process (see Tom Cleaver’s blog here).

The Supreme Court delivered some (much needed) excitement for trade mark lawyers, holding that there is no “free movement of goods defence” to an infringement action for putting trademarked goods onto the EEA market. It also reduced the scope for running a defence based on Article 101. See Oracle America Inc (formerly Sun Microsystems Inc) v M-Tech Data Limited [2012] UKSC 27, and my blog here.

Over in the High Court, we learned that allowing black cabs to use bus lanes, but preventing mini cabs from doing so, is compatible with pretty much every European and competition law that could conceivably be relevant (Eventech Ltd v Parking Adjudicator [2012] EWHC 1903 (Admin)).

The Competition Commission has had a good run. Its determination on mobile termination rates was upheld in British Telecommunications Plc v Competition Commission [2012] CAT 11 (although Everything Everywhere now has permission to appeal). The case contains an interesting discussion of whether a party can challenge a CC determination on proportionality grounds – the answer in that case was yes, but only because the price control engaged rights to property under Article 1 Protocol 1 ECHR. The CAT also upheld the CC’s divestiture decision in SRCL Ltd v Competition Commission [2012] CAT 14; the Court of Appeal upheld the CC’s decision to order the compulsory sale of Stansted airport in BAA Ltd v Competition Commission [2012] EWCA Civ 1077; and the CAT upheld its decision to proceed with an investigation into Ryanair’s minority share in Aer Lingus in Ryanair Holdings Plc v Competition Commission [2012] CAT 22.

In procedural matters, the High Court confirmed that applications for disclosure of leniency documents will need to be considered on a case-by-case basis. The CAT issued a blunt warning about the need for applications for permission to intervene to be supported by detailed reasons.

In keeping with the theme of the summer, I started and will end with sport. (Not, however, the Sky Sports decision, which we’ll get stuck into when the full judgment becomes available.) In Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB), the High Court held that Leeds United was not obliged to pay for the costs of policing around the stadium before and after matches. An interesting question arises of whether, when the police are able to charge for their services, they are subject to competition law. The question is tackled in Okeoghene Odudu’s blog here.

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Filed under Abuse, Agreements, Damages, Free movement, IP, Mergers, Penalties, Procedure, Round-Up, Telecoms

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