Is the New EU Private Enforcement Draft Directive Too Little Too Late?

(by Sebastian Peyer) After a decade of debate, consultation and guidance papers, DG Competition has finally released its draft Directive on actions for damages. It has been driven by the Commission’s desire to encourage private antitrust enforcement, currently deemed too low and mainly restricted to a small number of Member States, and the need to ‘optimise the interaction between public and private enforcement’. This second objective seeks to maintain the incentives for private firms to reveal cartels in return for leniency and engage in settlement procedures. A particular threat is posed by disclosure of leniency documents to third parties (e.g. Pfleiderer and National Grid). However, with rapidly developing litigation on the national level, there is a danger that aspects of the draft Directive are already behind the times.

The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreements

[by Pinar Akman] One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of the 8-page long Expedia judgment, which surprisingly has had few competition lawyers shouting from the rooftops.[1] In essence, the Court has declared that any object agreement[2] which has an effect on trade between Member States has an appreciable effect on competition. In other words, object agreements (with an effect on trade between Member States) can no longer make use of the de minimis doctrine. This represents an important change in the jurisprudence of the Court and, unfortunately, not an ideal one.

Does the UK’s New Cartel Offence Contain a Devastating Flaw?

(by Peter Whelan) On 25 April 2013, after almost one year of making its way through Parliament, the Enterprise and Regulatory Reform Bill finally received Royal Assent.  The UK Cartel Offence will be reformed in a number of significant ways when this piece of legislation comes into force later in the year.[1] Unfortunately, a potentially devastating flaw has crept into what started out as a very positive reform.

Competition Law as a complement to Intellectual Property Law?

(by Amelia Fletcher) The European Commission is currently consulting on proposed revisions to the Technology Transfer Block Exemption Regulation (TTBER) and associated Guidelines. These documents provide legal rules and guidelines in relation to technology transfer agreements, otherwise known as IP licensing agreements. On 7^th May, the Office of Fair Trading and the Intellectual Property Office held their first joint event: a debate on these proposed revisions.[1]  What were the most contentious issues?

Competition concerns mean Lloyds should be required to float HBOS following failure to divest branches to the Co-op

[by Bruce Lyons] It has just been announced that the sale of 632 Lloyds branches to the Cooperative Bank has fallen through.  Some people thought this would have created a competitive market structure in UK retail banking.  The lessons from research on divestitures by the US FTC, EU DG Competition and academics suggest otherwise.  In particular, necessary conditions for a divestiture package to restore competition include that the package must not be carved out of an existing business, it must have sufficient scale and scope, and it should not be sold to a weak buyer.  The proposed sale of branches to the Co-op met none of these basic requirements.  Why not?  And is there a way forward from here?

Monitor’s Advice to the OFT and the New Healthcare Regulation

(by Mary Guy)[1] On 11 February, Monitor (the UK’s independent regulator of NHS foundation trusts) published its advice to the Office of Fair Trading (OFT) regarding the anticipated merger of Poole Hospital NHS Foundation Trust and The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (hereafter “the Dorset FT merger”). This is the first NHS merger to be assessed on competition grounds under the Enterprise Act 2002 (EA02) merger provisions as implemented by the Health and Social Care Act 2012 (HSCA 2012). It has been referred by the OFT to the Competition Commission (CC), which will produce its final report by June 24, 2013.

Has the UK opened the floodgates to private enforcement of competition law?

(by Sebastian Peyer) Private antitrust enforcement is the least effective part of competition law in the UK. Yesterday, the government said what it intended to do about it. Its outline for a new regime of private actions in competition law followed a consultation on options for reform in 2012. It proposes fixes for a number of well-known litigation problems such as the limited jurisdiction of the specialist Competition Appeal Tribunal (CAT). However, of potentially greater interest to consumers and businesses will be the introduction of opt-out class actions. The debate about opt-out class actions has been fierce on national and EU levels but this is still a surprising move – will it work?