REGULATION
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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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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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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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A warning before bringing an appeal to the CAT? Costs after the BCMR decision
The Court of Appeal’s judgment in the recent BCMR costs case is a stark warning to all those considering challenging a regulatory decision in the Competition Appeal Tribunal: even if you win, you may still face a big costs bill. See British Telecommunications plc v Office of Communications [2018] EWCA Civ 2542. Unlike the position… Continue reading
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Intel Corporation Inc v European Commission
In its recent judgment in Intel, the Grand Chamber shed valuable light on the “qualified effects test” for jurisdiction and on the room for loyalty rebates to be compatible with competition law. Background Intel designed computer processors and sold them to original equipment manufacturers (“OEMs”) to use in central processing units (“CPUs”). One of its… 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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Can several wrongs make a right? Gallaher v CMA in the Court of Appeal
When a public body makes a mistake in its treatment of one person, can fairness require it to treat other people in the same way – even if that means amplifying the effects of the mistake? According to the Court of Appeal in the latest instalment of the tobacco litigation, the answer is yes. The… 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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Appealing energy price controls: guidance for beginners from the CMA
The CMA recently published its final determinations in two appeals brought by British Gas and Northern Powergrid against Ofgem’s electricity price controls for the next 8 years (decisions here and here). The appeals were the first under section 11C of the Electricity Act 1989 and the CMA’s decisions will therefore be the first port of… 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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Of Megabytes and Men: the private use exception under the judicial lens and lessons for state aid claims
On 19 June 2015, the High Court allowed a claim for judicial review against the decision to introduce a narrow ‘private copying’ exception to the Copyright, Designs and Patents Act 1988 (the “CDPA 1988”). The decision is of interest to EU and competition lawyers for two reasons: (1) its examination of the standard of review… 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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The ECJ on the Bus Lane Wars
Minicab giant Addison Lee recently suffered another defeat in the latest battle in the bus lane wars – this time at the ECJ. The outcome is no great surprise, but the Court’s approach to the question of when inter-state trade is affected is likely to be of broader interest. 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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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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The costs of intervening
There is an interesting little point on costs buried away in last week’s decision in the “Ethernet” disputes in the Competition Appeal Tribunal (see BT plc v Cable & Wireless Worldwide Plc and others [2014] CAT 20). Parties which intervene in CAT proceedings generally know that they are unlikely to recover their costs, even if they intervene in support of 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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Skyscanner: CAT quashes commitments in the online booking sector
In a judgment handed down on Friday, the Competition Appeal Tribunal has quashed the Office of Fair Trading’s decision to accept commitments in the online hotel booking sector. As the first case to consider such commitments, Skyscanner Ltd v CMA [2014] CAT 16 contains some helpful guidance, albeit that Skyscanner’s success actually hinged on a… 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
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Dogma in telecoms, cream for the CAT: 08- numbers in the Supreme Court
The Supreme Court yesterday handed down judgment in British Telecommunications plc v Telefónica O2 UK Ltd & Ors [2014] UKSC 42. Reversing the decision of the Court of Appeal (blogged on here by Emily Neill), Lord Sumption for a unanimous Supreme Court held that there had been no basis for Ofcom to disallow BT’s introduction… Continue reading
