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 in Aer Lingus, that not even Ryanair’s lawyers are entitled to see a fully unredacted copy of the decision. It would appear from the judgment that the case is likely to give rise to further arguments about procedural fairness and confidentiality: certainly one to watch.
Tag Archives: Competition Commission
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 highly commercially sensitive. Revealing one party’s business secrets to another – letting the cat out of the bag2 – not only risks aggravation to the cat’s owner but has the potential for serious economic harm. Continue reading
Filed under Procedure
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 a chance that – in a future case even if not in this one – the decision will be subject to attacks from both directions. Continue reading
Filed under Mergers
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 Union’s objectives“. When and in what way are Member State authorities required to act – or desist from acting – in order to comply with this duty?
This was the key issue in two cases decided this year regarding EU and national merger control (Ryanair Plc v OFT [2012] EWCA Civ 643 and Ryanair Plc v Competition Commission [2012] EWCA Civ 1632). Continue reading
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 Commission: see section 193(1) and SI 2004/2068. The CAT is then bound by section 193(6) to follow the Commission’s determination, except ‘to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the Competition Commission is a determination that would fall to be set aside on such an application’: section 193(7).
This “quasi-judicial review within an appeal” jurisdiction under section 193(7) is tribute in itself to the complexity of the legal imagination. In British Telecommunications Plc v Office of Communications [2012] CAT 30 the Tribunal takes us deeper still into wonderland with this question: can the Competition Commission, when it participates in a section 193(7) review before the Tribunal, recover its costs of so doing? Continue reading
Competition Bulletin 