REGULATION
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Tobacco decision: the Court of Appeal emphasises finality
The Court of Appeal yesterday delivered a judgment that should finally draw a line under one of the Office of Fair Trading’s more troublesome cases – and which will presumably bring a great sigh of relief from the Competition and Markets Authority, the body that has now taken over the OFT’s functions. 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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Abuse of dominance: no commercial gain, no abuse?
Is it necessary for there to be some commercial benefit to be gained by a dominant undertaking from its conduct before that conduct can be condemned as abusive? No, says Mrs Justice Rose in Arriva the Shires Ltd v London Luton Airport Operations Ltd [2014] EWHC 64 (Ch). 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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Murphy and pay-TV: an update
A version of the blog post below was first published on the Blackstone Chambers sports law blog: http://sportslawbulletin.org/. Back in November I blogged on a Financial Times report that the European Commission was about to commence an antitrust investigation into pay-TV services. That investigation was formally announced last Monday, in a statement by Joaquín Almunia,… 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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Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?
According to a report in the Financial Times last weekend, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV licensing arrangements. Such an investigation could have significant ramifications for any owners of television rights in sports fixtures (or other content) who seek to maximise their revenues… Continue reading
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The Court of Appeal on Cartels and Conflicts
The Court of Appeal handed down two important decisions last week on the application of conflict of law principles to cartel follow-on damages claims: Deutsche Bahn AG & Ors v Morgan Advanced Materials plc & Ors [2013] EWCA Civ 1484 and Ryanair Limited v Esso Italiana Srl [2013] EWCA Civ 1450. The defendants in each case… Continue reading
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Curtains for the French Blocking Statute?
Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers. The recent decision of the Court of Appeal in Secretary of State for Health v Servier Laboratories [2013] EWCA Civ 1234, however, may prove the Statute’s final curtain call in this jurisdiction.… Continue reading
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Update – more cats in bags
Further to my post this morning, the CAT’s website has just been updated with a new judgment on confidentiality, Ryanair Holdings plc v Competition Commission [2013] CAT 25. The Tribunal has ruled, in the context of a challenge to the CC’s decision requiring Ryanair to divest itself of the large part of its minority stake… Continue reading
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Cats, bags, rings and rooms: the problem of confidentiality
Dealing with confidential information in competition cases can be tricky. The CAT’s recent judgment in BMI Healthcare and others v Competition Commission [2013] CAT 241 provides some help. The core problem of confidentiality in the context of competition law is that many of the arguments deployed by litigants and regulators rely upon information which is… 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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A family affair: parental liability for joint ventures
It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the European Union (“CJEU”) illustrated just how difficult it will be for a company to rebut the… 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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Cañas: no sufficient interest in showing anti-competitive rules
The blog post below first appeared on the sports law blog recently launched by colleagues at Blackstone Chambers. We intend in future to post articles with both a competition and a sports angle on both blogs. Readers interested more generally in sports law may wish to subscribe to the Sports Law Bulletin: http://sportslawbulletin.org/ **** Retirement… 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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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… Continue reading
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The Sins of the Son or Daughter
Things occasionally have an air of unerring certainty about them. It will rain on the May Day bank holiday weekend. Tottenham will be pipped to fourth place in the Premier League on the last day of the season. Attempts to challenge a Commission finding that a group of companies constitute a single economic entity will… Continue reading
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To fight or not to fight: pharmaceutical patent settlements
On 19 April 2013, the OFT announced that it had issued a Statement of Objections following its investigation into patent litigation settlement agreements (PLSAs) in the pharmaceutical sector. The underlying factual complaint related to GlaxoSmithKline’s alleged conduct in defence of one of its blockbuster drugs, Seroxat, which is a prominent anti-depressant (paroxetine). The central allegation… Continue reading
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The OFT’s tobacco decision: Is it dead yet?
Late in 2011, the Office of Fair Trading was forced to concede before the Competition Appeal Tribunal that it could no longer defend the theory of harm contained in its Decision on alleged pricing agreements between tobacco manufacturers and retailers. However, the OFT refused to simply give up, and instead tried to persuade the CAT… Continue reading
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Anticompetitive behaviour by professional regulators – Wouters naturalised
The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants nevertheless fell outside Article 101(1) having regard to its context and objectives – was a controversial one. To some it suggested… Continue reading
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Appeals on the merits: only pick a hole if you can fill it
In his recent blog “Down the rabbit hole,” Tom Richards described the “quasi judicial review within an appeal” contained in s.193(7) Communications Act 2003 as something of a Wonderland. Last Wednesday it was the turn of the Court of Appeal to enter Wonderland. However, the judgment of Moses LJ in Everything Everywhere Ltd v Competition… 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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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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Tesco scores partial victory in cheese cartel
In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair Trading [2012] CAT 31. Tesco’s victory is essentially on the facts: it persuaded the CAT… Continue reading
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A Bitter Pill: AstraZeneca in the CJEU
The Court of Justice of the European Union (CJEU)’s much anticipated early Christmas present for generic producers has arrived in the form of its judgment in the AstraZeneca case (Case C-457/10 P AstraZeneca AB and AstraZeneca plc v European Commission, 6 December 2012). The decision upheld that of the General Court and the Opinion of… Continue reading
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Down the rabbit-hole: costs, the Comms Act and the Competition Commission
‘“But I don’t want to go among mad people,” Alice remarked. “Oh, you can’t help that,” said the Cat: “we’re all mad here”.’ Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives rise to specified ‘price control matters’, the CAT must hive them off for determination by the Competition… 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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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… Continue reading
