Policy and wider themes
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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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The Trouble with Economists
The Competition Appeal Tribunal’s recent decision in the trucks cartel claim raises some serious questions about expert economic evidence. In this post I want to flesh out some of the challenges and then float some suggestions for improvements. The context Many readers will know the basic background. Back in 2016, the European Commission decided that… Continue reading
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Collective (in)action? The CAT’s recent judgments on collective proceedings orders
At first glance, two recent judgments from the CAT may give the impression that the new UK class action regime is dead in the water. However, on closer inspection there is much in these judgments that prospective claimants will welcome. The first decision was in the Pride mobility scooters case (see Tom Coates’ blog here).… 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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When is an antitrust/competition claim caught by an arbitration clause? The Microsoft Mobile decision
The decision of the High Court in Microsoft Mobile Oy (Ltd) v Sony offers some helpful guidance as to when a competition law tort claim will be caught by an arbitration clause in a sale or supply agreement. Competition law claims frequently complain about prices, on ground of collusion or abuse. Those prices may already… 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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The Freight-Forwarding Cartels in the General Court: Lessons on Leniency and Discretion
On 29 February 2016, the General Court handed down its judgments in Case T-265/12 Schenker Ltd v European Commission; Case T-267/12 Deutsche Bahn AG and ors v European Commission, upholding the Commission’s decision on the freight forwarding cartels. The judgments provide some useful guidance on the operation of the leniency scheme and highlight the Commission’s… Continue reading
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FIFPro challenge the football transfer system
By Nick De Marco & Dr Alex Mills As the curtains are drawn on the panic-buying of the January transfer window for another year, it is once again difficult not to reflect critically on the football transfer system. In the Premier League alone, more than £1bn has been spent on football transfers during the 2015-16… Continue reading
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Eligibility for sporting competitions caught in the cross-hairs of competition law
In a recent announcement, the European Commission got its skates on and launched an investigation into the rules of the International Skating Union (ISU) which preclude skaters from taking part in events which have not been approved by the ISU. The announcement is only preliminary and does not represent a statement of what may or… Continue reading
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PRIVATE ACTIONS: The CRA 2015 giveth; and the 2015 CAT Rules taketh away
Introduction Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition law infringers up and down the land[1] must be rubbing their hands in glee at the transitional provisions… Continue reading
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Settling cartel damages actions: contribution defendants beware
Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights some of the problems. Continue reading
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Recovering penalties from directors and employees: Safeway revisited
Can a company which has been fined for anticompetitive conduct seek to recover the fine from the directors and employees responsible by suing them for damages? The question is moot in light of last week’s Supreme Court judgment in Jetivia SA and another v Bilta Ltd (in liquidation) and others [2015] UKSC 23, which casts… Continue reading
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Sharing Risk in Collective Actions
With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (UK) Ltd. They highlight a litigation funding problem which will arise under the proposed new regime, and suggest… 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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Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)
In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act 1998 and the tort of common law conspiracy. The Court upheld Roth J’s decision (on which see Tom Richards’… Continue reading
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Canadian Supreme Court: No such thing as passing on defence
On Thursday last week the Supreme Court of Canada handed down three much-anticipated judgments concerning indirect purchaser claims. The trio of cases point towards a distinctive, and in many respects more claimant-friendly, approach to class actions than that adopted in the US. They will therefore be essential reading for those preparing for the proposed new… Continue reading
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The economics of margin squeeze
The Competition Bulletin is pleased to welcome the second in our series of blogs by Oxera Consulting on key economic concepts for competition lawyers. In this blog, Tuomas Haanperä, a Senior Consultant, discusses the economic issues surrounding follow-on damages claims in margin squeeze cases (where a dominant firm has charged a combination of retail and… 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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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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Private enforcement: the Commission speaks at last
The trio of documents published by the Commission last week mark an important moment in private competition enforcement in the EU. After years of debate and consultation, it is now clear that, whilst the Commission is determined to take some important steps to assist claimants in private actions, it is not prepared to bring about… Continue reading
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Multi-speed Europe and the unitary patent: taking the first steps
A landmark recent judgment of the Grand Chamber of the CJEU was the first occasion on which the CJEU has considered the validity of a decision authorising enhanced cooperation. This is particularly topical given the flurry of initiatives relying upon this mechanism, some of which are now being challenged (such as the UK’s proposed proceedings… Continue reading
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Collective Actions: loss in complex cases
The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims. The proposals incorporate various “safeguards” designed to ensure that the perceived excesses of US class actions do not become a problem here. Some of the safeguards are really no… Continue reading
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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… Continue reading
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Competition round-up: January 2013
As today is the first day of the new court term, I thought it would be a good moment for a round-up of last term’s competition cases – and, of course, the customary plug of our own blogs. If there was a theme to the Michaelmas term, it was the highs and lows of follow-on… 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… Continue reading
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OFT welcomes DBIS proposals for reforms in private enforcement of competition law
Many readers will now be familiar with the proposals for the reform of private competition claims launched by the Department for Business Innovation and Skills (‘DBIS’) in April 2012 (‘Private actions in competition law: A consultation on options for reform’). Published at the end of July 2012 when most people had better things to do, the… 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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COMPETITION BULLETIN 