Tag Archives: competition law blog

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

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Filed under Procedure, Telecoms

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 the loophole, against Ofcom’s decision that, although it intended to amend the price control regime prospectively, it would not interfere with charges that had already been levied in accordance with the letter, if not the spirit, of the regime. The case raises an interesting point about the value to be placed on legal certainty by Ofcom. Continue reading

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Filed under Telecoms

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 by procedural skirmishes. The Court of Appeal has ruled on the need for the facts alleged in a follow-on claim to be part of the infringement actually found. It has ruled on the extent to which findings of fact in an infringement decision are binding in the follow-on action.

And it has on three occasions turned its attention to the time limits for bringing follow-on claims in the Competition Appeal Tribunal. Continue reading

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Filed under Abuse, Agreements, Damages, Procedure

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 file was closed when the OFT received assurances that the information exchange had ceased and that the parties would provide their staff with training on competition law compliance.

In the press release the OFT said: “We urge all Trusts to take steps to ensure they are compliant with competition law when engaging in commercial activity.” This of course begs a question: when are NHS bodies engaged in commercial activity? This question becomes more pressing from April 2013, when Monitor, at present the independent regulator for NHS foundation trusts, gains power under sections 72 and 73 of the Health and Social Care Act 2012 to apply competition law in the health sector. Continue reading

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Filed under Abuse, Agreements, Policy

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 OFT’s Response has generated less attention. It nonetheless provides a general endorsement of the DBIS proposals.

The OFT has noted that one of the key barriers to collective actions to date has been the low take up by claimants where the prospective recovery for each individual is modest. The OFT has therefore strongly supported the suggested introduction of an “opt-out” regime for collective actions, subject to certain caveats. First, the OFT recognises that appropriate safeguards need to be built into any scheme to dissuade abusive litigation. It recommends a strong court certification procedure to oversee the appointment of the representative body and retention in principle of the normal costs’ rules. Secondly, it is lukewarm about the DBIS proposal for all such actions to be heard in the CAT in the first instance. One senses that resource constraints in relation to the CAT are a driver of this reaction. But a proposed concurrent jurisdiction with the High Court is also accompanied by the suggested removal of the jurisdictional limitations on section 47A claims in the CAT. Few can doubt that such a proposal would be sensible. The Enron experience has successfully deterred claimants from commencing follow-on claims in the CAT. Thirdly, the OFT has cautiously welcomed the conferral of a power on the CAT to grant interim injunctions, but favours retaining in principle the need for a cross-undertaking in damages. Fourthly, the OFT has pointed out that expansion of the CAT’s jurisdiction will require synchronisation of applicable limitation periods in civil actions. Continue reading

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Special pleading? Toshiba Carrier and the industrial tubes cartel

The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants.  It confirms that the Court will be generous in assessing the adequacy of a claimant’s pleaded case – at least where a Commission decision has already established the existence of a cartel.

By a Decision dated 16 December 2003, the Commission found that three manufacturers of industrial copper tubes had between 1988 and 2001 operated a price-fixing and market-sharing cartel under cover of a trade association. Continue reading

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Filed under Agreements, Damages, Procedure

Competition round-up: Summer 2012

As most of us are now returned from our summer holidays, I thought I’d take advantage of the ‘back to school’ feeling with a round-up of the most significant competition cases since Easter. This also provides a good excuse to highlight the best blogs from the Competition Bulletin’s first couple of months.

I’ll start with a case that should, but probably won’t, make the law reports: the decision of the Appeal Panel of the Rugby Football Union, which held in an appeal by London Welsh that the RFU rules on primacy of tenure are contrary to Articles 101 and 102 TFEU and therefore void. The case is notable not only for the finding itself, but also because it was heard and decided so quickly – arguments which would take days in the High Court (and probably weeks in the CAT) were heard over the course of a day, and the 38-page judgment completed the following day. James Segan blogged on the case here.

There has been much good news for claimants in follow-on damages claims. Continue reading

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Filed under Abuse, Agreements, Damages, Free movement, IP, Mergers, Penalties, Procedure, Round-Up, Telecoms