Author Archives: Okeoghene Odudu

About Okeoghene Odudu

Herchel Smith senior lecturer, faculty of law and Fellow in law, Emmanuel College, Cambridge.

Competition law and public services: insights from the OFT report into higher education

Recent public sector reforms have relied on choice and competition to increase the quality and quantity of service provision, whilst also controlling cost, through a programme known as Open Public Services. The use of choice and competition gives rise to public service markets, and ensuring that these markets function effectively is one of the Competition and Markets Authority’s declared objectives. Higher education constitutes one of the larger public service markets, and to understand how the market for undergraduate education in England functions, in October 2013, the OFT launched a Call For Information. Continue reading

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e-books: Vertical participation in hub and spoke agreements

The 10 July judgment in the American e-books case (US v Apple) addresses an important question not yet examined under European competition law: what determines the liability of the vertical participant (“B”) in an A-B-C information exchange? Continue reading

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Price-fixing by the State: a minimum unit price for alcohol

For a number of years concerns have been expressed over excessive levels of alcohol consumption and the effect this has on both public health and public order. There is a clear relationship between the price of alcohol and the amount of alcohol consumed. On 3 May 2013, the Court of Session ruled that a 50 pence per unit minimum alcohol price which had been imposed by the Scottish Parliament was compatible with EU law. In this blog I argue that, in reaching his conclusion, Lord Doherty misapplied the proportionality test. Continue reading

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Filed under Abuse, Agreements, Free movement

Back to school for the OFT?

On 25 October 2012 the Office of Fair Trading announced that it had written to the head teachers of almost 30,000 State schools to draw attention to the high price of school uniforms. The high price is caused in part by  74% of schools requiring parents to purchase uniforms from a single, named retailer or from the school itself. This has created a captive market for chosen suppliers, allowing them to charge an additional £52 million per year (see para 2.3 of the OFT’s 2006 school uniforms review).

The October 2012 letter advises schools either to cease specifying from whom uniforms may be obtained, or to award the right to supply on a basis that takes into account the cost to parents. The letter does not specify what the OFT will do if the schools fail to comply, but I want to suggest that action against the schools is possible under the Competition Act 1998. Continue reading

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Competition law and the National Health Service

On 16 August 2012 the Office of Fair Trading revealed that eight NHS trusts had been engaged in the exchange of commercially sensitive information. The information related to the price each would charge self-paying patients, or patients’ insurers, for treatment in a hospital operated by an NHS trust when that treatment was privately funded. The file was closed when the OFT received assurances that the information exchange had ceased and that the parties would provide their staff with training on competition law compliance.

In the press release the OFT said: “We urge all Trusts to take steps to ensure they are compliant with competition law when engaging in commercial activity.” This of course begs a question: when are NHS bodies engaged in commercial activity? This question becomes more pressing from April 2013, when Monitor, at present the independent regulator for NHS foundation trusts, gains power under sections 72 and 73 of the Health and Social Care Act 2012 to apply competition law in the health sector. Continue reading

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Regulating charges for special police services

Police services are generally performed for the benefit of the public at large and provided for out of public funds. However, the police also have the power (under s.25 of the Police Act 1996) to provide “special police services” for which they can levy a charge. To take Northumbria Police as an example, charges can range from £57.98 per hour for a constable to £90.68 for a superintendent.

The principal line of defence against such a charge is typically to argue that the service is an ordinary police service, rather than a special service. Such an argument succeeded in the recent case of Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB), in which Mr Justice Eady held that even if the need for police services arises from a private event, that policing does not constitute a special service when it is performed on land that is not owned, leased or controlled by the event organiser.

A further line of defence, potentially of much broader interest, is to attack the level of the charges on the grounds that they are contrary to competition law. That was the stance taken by Wigan Athletic FC in an earlier case against Greater Manchester Police ([2007] EWHC 3095 (Ch)). The issue was not, however, resolved, and the applicability of competition law to special police services therefore remains an open question. Continue reading

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