Mergers
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Regulating Big Tech in the UK
Following hot(ish) on the heels of the EU’s Digital Markets Act, the UK’s Digital Markets, Competition and Consumers Bill (“the Bill”) was published on 25 April 2023. It seeks to do three things: (1) to establish a new ex-ante regulatory regime for digital markets, conferring powers on the CMA, via its Digital Markets Unit, to… Continue reading
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Litigation in the shadow of COVID-19
Readers of this blog may be interested to know that Blackstone Chambers has set up a dedicated webpage providing legal insights into COVID-19. In the most recent article, Credit When Credit Won’t Do, Kieron Beal QC and Tom Mountford consider the prospects of group litigation being used to help consumers whose holiday plans have been… Continue reading
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Brexit and implications for UK Merger Control – Part 3/3: Managing and prioritising the CMA’s mergers workload
The Competition Bulletin is pleased to welcome the third in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. Part one focused on the issues associated… Continue reading
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Brexit and implications for UK Merger Control – Part 2/3: Implications for the CMA’s workload and what not to do
The Competition Bulletin is pleased to welcome the second in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. Part one focused on the voluntary nature… Continue reading
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Brexit and implications for UK Merger Control – Part 1/3: Should UK merger control filings be mandatory?
The Competition Bulletin is pleased to welcome the first in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. They can be contacted on bforbes@alixpartners.com and… Continue reading
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Islands of jurisdiction for competition damages claims in a post-Brexit world
By Naina Patel and Andrew Scott When the UK leaves the EU, the rules governing jurisdiction in cross-border competition damages claims will likely change. Most immediately, this will impact those who had acquired pre-Brexit causes of action for breach of statutory duty under section 2(1) of the European Communities Act 1972, based on Articles 101… Continue reading
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Competition Law claims post-Brexit: the issue of applicable law
Once notification is given by the UK Government of its intention to withdraw from the European Union under Article 50 TFEU, EU law will cease to apply in the UK after the expiry of two years (absent an agreement between all 28 Member States extending the relevant period). What then happens to the UK’s competition… Continue reading
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License fees, invalid patents and Article 101 TFEU: Genentech v Hoechst and Sanofi-Aventis
Consider an agreement under which a license fee is payable for use of a patented technology even if it transpires that the patent is invalid. Is such an agreement contrary to Article 101 TFEU? The answer is no, provided that the licensee is able freely to terminate the contract by giving reasonable notice. Some years… Continue reading
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The passing-on “defence” after Sainsbury’s
The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of much policy discussion but relatively little… Continue reading
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Asset acquisitions and mergers: Eurotunnel in the Supreme Court
The Supreme Court’s recent decision in Eurotunnel II ([2015] UKHL 75) brings some much-needed clarity to what was becoming a rather opaque corner of the UK merger regime. It also contains statements of general principle which are bound to make it one of the most frequently-cited merger cases. The case concerns the circumstances in which an asset… 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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Asset acquisitions revisited
Earlier this year, I suggested that the law on when an asset acquisition might amount to a merger was somewhat opaque. The Court of Appeal’s decision in Eurotunnel II [2015] EWCA Civ 487 has brought some additional clarity, although the messy procedural history of that case has caused its own problems. A quick re-cap on… Continue reading
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Eurotunnel: when buying assets is a merger
When is an asset acquisition a merger? As the Eurotunnel litigation shows, the answer is not clear-cut. The background is the 2011 liquidation of the cross-channel ferry company SeaFrance. It could not be sold as a going concern, so instead there was an asset sale. Eurotunnel bought three ferries and various other assets including the… Continue reading
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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… Continue reading
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Pay TV: Court of Appeal sends message to the CAT
In its recent decision in British Sky Broadcasting Ltd v Office of Communications [2014] EWCA Civ 133 the Court of Appeal has sent a strong message to the CAT, criticising the Tribunal for its failure to properly consider the reasons underpinning Ofcom’s original decision to impose licence conditions on British Sky Broadcasting Ltd (“Sky”). Continue reading
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“Unfair advantage” under the Trade Marks Directive
Readers over the age of 24 do not fall into Jack Wills’ core target market, and may therefore be unfamiliar with the clothing brand’s “Mr Wills” pheasant logo: On the other hand, those readers who are Jack Wills devotees may want to check when you get home that you have not got confused and accidentally… Continue reading
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Competition round-up: January 2014
It is again time for a round-up of recent competition law developments which have caught our attention. Most attention-grabbing of all was the European Commission’s genius/bizarre/inexplicable decision to publish a comic book which is probably best described as a bureaucrat’s fantasy. A young Commission official (Thomas) starts talking to a beautiful woman (Chloe) in an… Continue reading
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TalkTalk v Ofcom – the Court of Appeal stresses that market definition is a tool not an end
The Court of Appeal, in TalkTalk v Ofcom [2013] EWCA Civ 1318, recently gave an important reminder to all competition practitioners that market definitions are a tool rather than an end: what matters is substance not form. The facts of the case were relatively simple. Ofcom conducted a market review for wholesale broadband access and,… Continue reading
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Blackstone Chambers named EU and Competition Law Chambers of the Year
We do not normally use this blog for promotional purposes, but we thought we would make an exception to say that Legal 500 announced this morning that Blackstone Chambers is the winner of its inaugural award for Chambers of the Year in EU and Competition Law. Thinking that I might give our readers a flavour of… Continue reading
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Competition round-up: Summer 2013
It is time for what has become the Competition Bulletin’s regular half-yearly update of EU and UK competition law developments. (For our previous round-ups see here). Thinking big Continue reading
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The Competition Commission’s power to block transactions outside the UK
The judgment in Akzo Nobel NV v Competition Commission [2013] CAT 13 is an important decision on the ability of the Competition Commission (“CC”) to block transactions between companies outside of the UK. However, neither party to the appeal will be entirely happy with the Competition Appeal Tribunal’s (“CAT”) legal analysis. There must therefore be… Continue reading
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UK government proposes “streamlining” regulatory and competition appeals
The UK government on Wednesday published a consultation on streamlining regulatory and competition appeals. The press spin was that the proposals are all about preventing “armies of lawyers” from blocking consumer-friendly measures. In reality, although it is true that the proposals are designed in part to put a lid on litigation, the consultation contains a… Continue reading
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Anyone for another round? The Court of Appeal’s nuanced approach to the duty of “sincere cooperation”.
The duty of “sincere cooperation” set out in Article 4(3) TEU requires Member States to take appropriate measures to “ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union” as well as to “refrain from any measure which could jeopardise the attainment of the… Continue reading
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Flip Flopping: Telefonica UK v Office of Communications
What should Ofcom do when mobile network operators (“MNOs”) spot a loophole in the regulator’s price control mechanism and proceed to “game” the system over several years, increasing their revenues by many millions of pounds? This unsuccessful appeal before the Competition Appeal Tribunal was brought by Telefonica, the only MNO that had failed to exploit… Continue reading
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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… Continue reading
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CAT unlimited: the Deutsche Bahn decision
Where the Commission has issued a decision finding several addressees liable for the same infringement, amongst the more important tactical questions for a claimant in the UK are: where to sue the addressees and when? The decision of the Court of Appeal in Deutsche Bahn & AG & Ors v Morgan Crucible Company plc &… Continue reading
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Keeping the CAT in its bag: the 08 Appeal
Ofcom will likely be delighted by the result in the Court of Appeal’s decision in Telefonica O2 UK Limited and others v British Telecommunications PLC [2012] EWCA Civ 1002, in which the Regulator appeared as an interested party. Not only does the judgment uphold Ofcom’s various dispute determinations relating to ladder pricing by BT for… Continue reading
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This blog is produced by a group of barristers at Blackstone Chambers and is edited by Tristan Jones, Tom Coates and Flora Robertson.
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