Author: Tom Coates
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Boundary Fares: the boundaries of fairness
In Boundary Fares [2025] CAT 64 the Tribunal dismissed Mr Gutmann’s claims that rail companies had abused their dominant positions by failing to make boundary fares sufficiently available or promote awareness of them. The decision contains important analysis about the overlap of consumer and competition law, but the reasoning is nuanced and it does not… Continue reading
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Subsidy Control reviews: what can I challenge and where do I issue?
In what is rapidly turning into an unintended mini-series, the theme of this blog is again subsidy control reviews under s. 70 of the Subsidy Control Act 2022 (SCA) (see previous posts here and here). This post deals with some unusual features of s. 70, which will throw up tricky threshold questions for many appellants,… Continue reading
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Subsidy Control reviews: a cheap and cheerful jurisdiction?
A few weeks ago, the Competition Bulletin blogged on the standard of review that was likely to apply in subsidy control reviews conducted by the CAT under the Subsidy Control Act 2022 (SCA). This blog covers the procedural approach that the CAT seems likely to adopt. In short, early indications are that the watchwords will… Continue reading
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Subsidy Control reviews: proportionality with a light touch
As erstwhile State aid lawyers will know, under the UK’s new subsidy control regime, interested parties can challenge subsidy decisions in the CAT, which will apply the same principles applied by the High Court in a judicial review. But what standard of review will the CAT adopt when examining a substantive subsidy decision? The recent… Continue reading
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Crisis cartels: relying on Article 101(3) in a pandemic
Brian Kennelly QC and Tom Coates examine how businesses might invoke Article 101(3) to justify collaboration during the pandemic. The coronavirus pandemic has prompted some slackening of competition rules, but not much. Competition authorities, including the Commission and the CMA, have indicated that they are unlikely to take issue with coordination between providers of critical… Continue reading
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Coronavirus and the EU State Aid Framework
The coronavirus pandemic has ushered in an era of government spending on a scale not seen since the financial crisis. The Chancellor has so far announced £330bn of financial support in the coronavirus business interruption loan scheme and further support for the self-employed. With some squeezed industries such as aviation clamouring for help, many predict… Continue reading
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Illegal counterfactuals: the Court of Appeal shuts the back door
Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the… Continue reading
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Collective Proceedings in the CAT: mobility scooters roll on for now
Last Friday the CAT handed down a judgment on the first ever-application for a collective proceedings order under the new regime introduced by the Consumer Rights Act 2015. The judgment will generally be welcomed by potential claimants, but it has a sting in the tail which may cause serious difficulties for class actions in other… Continue reading
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Illegal counterfactuals: bringing in new claims by the backdoor?
It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru [2013] CAT 6. In a normal case, C will claim damages,… Continue reading
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When should a decision be remitted to a different decision-maker?
The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492 was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, illustrates just how high the threshold is before a court will insist that a remitted decision should… Continue reading
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Fresh grounds and evidence before the CAT
On the face of it, BT was the main winner in this week’s ruling from the Competition Appeal Tribunal: see British Telecommunications plc v Office of Communications [2015] CAT 6. However, the decision, which makes interesting comments on the rights of parties to adduce new grounds and evidence on an appeal, raises important notes of… Continue reading
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Gallaher and Somerfield: will the CMA change its approach to settlement?
The latest episode in the tobacco litigation saga has seen Gallaher and Somerfield’s attempt to benefit from the collapse of the OFT’s case in November 2011 rejected by the High Court in R (Gallaher Group Limited and Ors) v Competition and Markets Authority [2015] EWHC 84 (Admin). Although the CMA will breathe a sigh of… Continue reading
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MasterCard miffed as CJEU dismisses appeal
Yesterday’s CJEU judgment in the MasterCard case is a major defeat for a company which faces a huge number of private damages actions from retailers. The judgment also examines some interesting legal points, including in particular relating to the use of “counterfactuals” in competition cases. Continue reading
