competition appeal tribunal
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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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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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Retrospective interpretation: DSG v MasterCard
The latest battle over limitation in Competition damages claims was a victory for the claimants – see DSG Retail Ltd v MasterCard Inc [2019] CAT 5. In some ways it is a surprising decision, because the Competition Appeal Tribunal has decided that when s.47A of the Competition Act was enacted in 2003, certain claims which were time-barred… 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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Economic complexity: CAT vs High Court
One of the advantages of the Competition Appeal Tribunal is said to be the fact that its three-member panel typically includes an economist. But is that really such a big advantage over the High Court? The question is particularly topical in light of a couple of recent trends. On the one hand, recent legislative developments have… 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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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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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
Access Directive, Article 20, Article 5, Article 8, call termination, CAT, competition appeal tribunal, contract, Court of Appeal, Directive 2002/19/EC, Directive 2002/21/EC, dispute resolution, disputes, Framework Directive, interconnection, Lord Sumption, s. 185, s. 192, section 185, section 192, supreme court, telecoms -
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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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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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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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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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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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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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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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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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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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 