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
Illegal counterfactuals: the Court of Appeal shuts the back door
Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the… Continue reading
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
Illegal counterfactuals: bringing in new claims by the backdoor?
It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru  CAT 6. In a normal case, C will claim damages,… Continue reading
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  UKSC 23, which casts… Continue reading
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  CAT 16 contains some helpful guidance, albeit that Skyscanner’s success actually hinged on a… Continue reading
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
The Cost of Collusion
The Competition Bulletin is pleased to welcome a guest blog from Louise Freeman of King & Wood Mallesons LLP. Louise specialises in (among other things) complex competition litigation. In this blog, she addresses the implications of the recent CJEU decision in Case C‑557/12 Kone AG and others v ÖBB-Infrastruktur AG. Continue reading
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
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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