Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?

February 18, 2014

(by Scott Summers) The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged that he ‘dishonestly agreed with others’ to fix prices, allocate markets and rig bids in the market for galvanised steel tanks for water storage, between 2004 and 2012. This is the UK’s first criminal cartel prosecution since the collapse of the British Airways trial back in 2010,[1] which left a number of unanswered questions about the ‘dishonesty’ element and the UK cartel offence in general. The Snee case will fall under the existing cartel offence. The Enterprise and Regulatory Reform Act 2013 will, from 1 April 2014, strip the ‘dishonesty’ element and introduce new carve-outs and defences to the offence. Read the rest of this entry »

Does Every Little Supermarket Price Guarantee Help?

November 22, 2013

(by Morten Hviid) Last week, Asda’s marketing chief was reported as saying: “It is strange to me that our competitors are touting how much they match prices and are working towards parity. I find it almost anti-competitive that large competitors are talking about and proud to be matching each other’s prices. We are the only ones standing up and saying we’ll be 10 per cent cheaper” (Marketing Week, 15 November).  I have previously pointed out the potential anti-competitive effects of price guarantees, so it is unsurprising that I agree with him on the first point.  I will spell out one overlooked implication of the guarantee offered by Sainsbury’s and partially copied by Tesco below.  However, he is a bit too quick to absolve Asda’s price guarantee from potential anti-competitive blame. Read the rest of this entry »

Chinese Milk Powder Case: How Should We Interpret a Price Cut on the Announcement of an Antitrust Investigation?

July 16, 2013

(by Andreas Stephan) Earlier this month, China’s National Development and Reform Commission (NDRC) announced an investigation into foreign manufacturers of infant milk formula. The very next day, two of the firms in question did something that would be unthinkable in Europe or the US – they announced they would lower their prices and other firms have since followed. Is this the behaviour of remorseful cartelists?  Or is antitrust being used by the Chinese government in the pursuit of non-competition goals?   Read the rest of this entry »

The UK’s New Cartel Offence: It Could Be Alright on the Day

July 9, 2013

(by Andreas  Stephan) The Enterprise and Regulatory Reform Act 2013 drops the requirement of dishonesty and excludes cartel agreements made openly. At a late stage three additional defences were introduced (s.47 ERRA). The defendant can show they did not intend that the nature of the arrangements be hidden from either their customers or the competition authority. It will also be a defence to show that a defendant took reasonable steps to disclose the nature of the agreement to lawyers, in order to get advice, prior to its making or implementation. Writing on this blog a couple of months ago, my colleague Peter Whelan expressed concern that this defence could pose a devastating blow to the cartel offence. Here I reflect on how this defence could pan out. Read the rest of this entry »

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

June 15, 2013

(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. Read the rest of this entry »


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