Monthly Archives: December 2012

Conspiracy in the CAT: the scope of section 47A

What kinds of “follow-on” claims may be brought in the CAT?  ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom’, according to section 47A(1) of the Competition Act.  A ‘relevant prohibition’ for this purpose is of course defined as any of the Chapter I and II prohibitions or the prohibitions in Articles 101 and 102 of the Treaty.

The most obvious section 47A claim is a claim in tort for breach of statutory duty.  But what other causes of action fall within the scope of the section?

That question has been considered judicially for the first time in W. H. Newson Holding Ltd & ors. v IMI plc & ors. [2012] EWHC 3680 (Ch), a case arising out of the copper plumbing tubes cartel. Continue reading

2 Comments

Filed under Agreements, Damages, Procedure

Tesco scores partial victory in cheese cartel

In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair Trading [2012] CAT 31.

Tesco’s victory is essentially on the facts: it persuaded the CAT that the OFT had misunderstood the evidence. The case is therefore yet another example of the facts of a case appearing very different when placed under forensic examination before the Competition Appeal Tribunal than they did when considered by the regulator (other recent examples are the tobacco litigation and the BSkyB case).

The OFT is plainly keen to strengthen the quality of its decisions. It has recently revised its Competition Act procedures guidance with precisely that goal in mind. It will therefore want to examine this latest judgment to see whether any further steps should be considered. Two points stand out. Continue reading

1 Comment

Filed under Agreements

A Bitter Pill: AstraZeneca in the CJEU

The Court of Justice of the European Union (CJEU)’s much anticipated early Christmas present for generic producers has arrived in the form of its judgment in the AstraZeneca case (Case C-457/10 P AstraZeneca AB and AstraZeneca plc v European Commission, 6 December 2012). The decision upheld that of the General Court and the Opinion of Advocate General Mazák, and suggests that the pharmaceutical industry may soon be faced with emboldened competition authorities.

At issue was the Commission’s finding of abuse of dominance (under Article 102 TFEU) for two abuses of the patent system by AstraZeneca (AZ). Firstly, the Commission found that AZ had made “misleading representations” to national patent offices in several Member States which enabled it to extend patent protection of one of its headline gastrointestinal treatments longer than should have been possible. Secondly, the selective deregistration of an older form of the drug had deprived generic producers of the simplified procedure for obtaining a marketing authorisation for their products under Article 4(3)(8)(a)(iii) of Directive 65/65. Continue reading

2 Comments

Filed under Abuse, Pharmaceuticals

Another reason to avoid the CAT – Emerson in the Court of Appeal

The famous Victorian cricketer WG Grace is reputed once to have offered the following advice:

“When you win the toss – bat. If you are in doubt, think about it, then bat. If you have very big doubts, consult a colleague – then bat.”

The recent Emerson decision [2012] EWCA Civ 1559 is another illustration that bringing a follow on claim in the CAT rather than in the High Court is the law’s equivalent of choosing to bowl.

Emerson was yet another interlocutory skirmish arising from the CAT’s notoriously troublesome follow on jurisdiction under section 47A of the Competition Act 1998.  Continue reading

5 Comments

Filed under Agreements, Procedure