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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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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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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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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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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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The economics of pass-on
The Competition Bulletin is pleased to announce that Oxera Consulting will be contributing a short series of blogs on key economic concepts for competition lawyers. Robin Noble, Oxera Associate Director and an expert economist on commercial and competition law damages actions, is our first guest blogger. His post discusses the issue of pass-on—ie, the extent… Continue reading
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Albion v Dwr Cymru: Incompetence and counterfactuals
The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in relation to the price it was prepared to charge Albion for the use of its water pipes.… 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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Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?
Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts of laws, both in relation to issues of jurisdiction and applicable law. On the jurisdictional side conventional wisdom has it that there are three main routes by which Claimants… 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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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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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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Conspiracy in the CAT: the scope of section 47A
What kinds of “follow-on” claims may be brought in the CAT? ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United… 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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Another reason to avoid the CAT – Emerson in the Court of Appeal
The famous Victorian cricketer WG Grace is reputed once to have offered the following advice: “When you win the toss – bat. If you are in doubt, think about it, then bat. If you have very big doubts, consult a colleague – then bat.” The recent Emerson decision [2012] EWCA Civ 1559 is another illustration… 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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BCL No.2: The Supreme Court addresses time limits in follow-on claims
The White Paper which first proposed follow-on damages claims promised a “swift” and “streamlined” procedure. The idea was that when a regulator had made an infringement finding, there would be a simple way for victims to claim damages without having to prove the infringement afresh. In reality, however, many follow-on actions have been bogged down… 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
