competition law blog
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Collective Actions in the Supreme Court
The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks [2020] UKSC 51 is not only that Mr Merricks won and defeated the appeal, but that the Supreme Court approached the issues in a far more claimant-friendly way than even the Court of Appeal had done. The headlines are that,… Continue reading
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Merricks v MasterCard: Collective Actions Reinvigorated
The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others [2019] EWCA Civ 674. It is a major victory for the Applicant and will reinvigorate the collective proceedings regime, which has seen disappointingly few cases brought since its introduction in 2015. Continue reading
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A warning before bringing an appeal to the CAT? Costs after the BCMR decision
The Court of Appeal’s judgment in the recent BCMR costs case is a stark warning to all those considering challenging a regulatory decision in the Competition Appeal Tribunal: even if you win, you may still face a big costs bill. See British Telecommunications plc v Office of Communications [2018] EWCA Civ 2542. Unlike the position… 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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Jurisdiction after a no deal Brexit
Time for some more speculation about the future which awaits us after 29 March. The topic this time is jurisdiction. As the readers of this blog will know, the rules of civil jurisdiction across the EU are currently governed by the Brussels Recast regulation. The basic framework is: A defendant domiciled in a Member State… Continue reading
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Subsidiarity liability: Biogaran
I wrote a blog a few months ago on the circumstances in which a subsidiary can be held liable for the infringing conduct of its parent. That is a somewhat special interest subject which might be said to have received more than its fair share of attention among English judges and lawyers. However, I cannot resist… Continue reading
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Anchoring claims to a UK subsidiary
The recent decision of the High Court in Vattenfall AB v Prysmian SpA [2018] EWHC 1694 (Ch) is another example of claimants being allowed to use non-addressee English subsidiaries as anchor defendants for their competition damages claims. It is also another example of the court considering but not actually having to decide the interesting legal… Continue reading
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Market dynamics in the counterfactual: more competitive, not just cheaper
The judgment of Phillips J in Sainsbury’s v Visa [2017] EWHC 3047 (Comm) demonstrates the importance to claimants in competition damages cases of identifying a counterfactual which not only involves lower prices but also involves higher levels of competition. Sainsbury’s case Visa’s payment card scheme required ‘acquirers’ (who process card payments on behalf on merchants)… Continue reading
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Collective (in)action? The CAT’s recent judgments on collective proceedings orders
At first glance, two recent judgments from the CAT may give the impression that the new UK class action regime is dead in the water. However, on closer inspection there is much in these judgments that prospective claimants will welcome. The first decision was in the Pride mobility scooters case (see Tom Coates’ blog here).… Continue reading
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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
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Collective Proceedings in the CAT: mobility scooters roll on for now
Last Friday the CAT handed down a judgment on the first ever-application for a collective proceedings order under the new regime introduced by the Consumer Rights Act 2015. The judgment will generally be welcomed by potential claimants, but it has a sting in the tail which may cause serious difficulties for class actions in other… Continue reading
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Brexit and implications for UK Merger Control – Part 2/3: Implications for the CMA’s workload and what not to do
The Competition Bulletin is pleased to welcome the second in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. Part one focused on the voluntary nature… Continue reading
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Brexit and implications for UK Merger Control – Part 1/3: Should UK merger control filings be mandatory?
The Competition Bulletin is pleased to welcome the first in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. They can be contacted on bforbes@alixpartners.com and… Continue reading
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License fees, invalid patents and Article 101 TFEU: Genentech v Hoechst and Sanofi-Aventis
Consider an agreement under which a license fee is payable for use of a patented technology even if it transpires that the patent is invalid. Is such an agreement contrary to Article 101 TFEU? The answer is no, provided that the licensee is able freely to terminate the contract by giving reasonable notice. Some years… 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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Can several wrongs make a right? Gallaher v CMA in the Court of Appeal
When a public body makes a mistake in its treatment of one person, can fairness require it to treat other people in the same way – even if that means amplifying the effects of the mistake? According to the Court of Appeal in the latest instalment of the tobacco litigation, the answer is yes. The… 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 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
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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 [2013] CAT 6. In a normal case, C will claim damages,… Continue reading
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FIFPro challenge the football transfer system
By Nick De Marco & Dr Alex Mills As the curtains are drawn on the panic-buying of the January transfer window for another year, it is once again difficult not to reflect critically on the football transfer system. In the Premier League alone, more than £1bn has been spent on football transfers during the 2015-16… Continue reading
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Standalone claims in the CAT: bypassing the transitional rules
We have written before about the problems inherent in the transitional provisions of the new Consumer Rights Act 2015 (see Tom de la Mare QC’s blog here). A recent decision from Mr Justice Barling in the Mastercard litigation places a (small) sticking plaster over some of the difficulties. One problem is that the transitional provisions… Continue reading
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Appealing energy price controls: guidance for beginners from the CMA
The CMA recently published its final determinations in two appeals brought by British Gas and Northern Powergrid against Ofgem’s electricity price controls for the next 8 years (decisions here and here). The appeals were the first under section 11C of the Electricity Act 1989 and the CMA’s decisions will therefore be the first port of… Continue reading
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When should a decision be remitted to a different decision-maker?
The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492 was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, illustrates just how high the threshold is before a court will insist that a remitted decision should… Continue reading
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Arcadia v Visa revisited: the Court of Appeal takes a strict approach to limitation
Competition damages claims can be notoriously complex. According to the Court of Appeal, however, that is no reason to free them from the ordinary English rules of limitation – however strict those rules might be. Unlike the large majority of European limitation rules, where time starts running from the date of the victim’s knowledge, the… Continue reading
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What’s the plot? Conspiracy and 19th Century comic opera (again)
Ever since Johnson v Moreton [1980] AC 37 (61E-G per Lord Hailsham: ‘we should have to adopt the carefree attitude of the Mikado…’), references to Gilbert and Sullivan have been gaining ground in the judgments of our higher Courts. When last year Arden LJ rejected the argument, advanced by the claimant victim of a cartel,… Continue reading
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“It’s too late baby, now it’s too late”: limitation, competition claims and knowledge
How much knowledge does a potential claimant need before time begins to run against a competition claim against a party alleged to have breached competition law? This was the key question addressed by Mr Justice Simon in the first case in which an English Court has had to consider the effect of s.32 of the… Continue reading
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High Court tests the limits of confidentiality in EC infringement decisions
The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA [2014] EWHC 3515 (Ch). The background is the 2010 EC decision fining BA and eleven other airlines a total of €800m… Continue reading
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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
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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
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The English law of causation and the passing-on defence
One of the big questions of English competition law is whether there is such a thing as a “passing-on defence” – – i.e. whether the damages suffered by a purchaser of a cartelized product are reduced or mitigated if he “passes on” some of the overcharge to his own customers. Two follow-on damages actions were… 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 