I’m a dissatisfied customer in a fairly unusual market …the market for opinion polls

May 12, 2015

(by Chris Hanretty) I’m more an end-user rather than a customer: I don’t buy opinion polls, but rely on a number of polling companies to publish their results which are (typically) commissioned by national newspapers or other media outlets.

This market has recently suffered a clamorous and highly visible failure. Most polls before the 2015 UK general election suggested that approximately equal proportions of people intended to vote for the Conservative and Labour parties respectively. In the end, the Conservatives finished six and a half percentage points ahead.

Given the size of this failure — and CCP’s obvious interest in competition and troubled markets — it’s reasonable to ask whether the polling industry’s failure is evidence of a broader failure in the market for public opinion research. Read the rest of this entry »


What could repeal of the Health and Social Care Act 2012 mean for the application of competition law and the English NHS?

May 5, 2015

(By Mary Guy) In view of the significant opposition to the competition provisions of the Health and Social Care Act 2012 (HSCA 2012), it is unsurprising that several parties are explicitly proposing repeal in their 2015 UK election manifestos. Repeal of the HSCA 2012 appears to offer a neat shorthand for dis-applying competition law with regard to the English NHS. But how do the competition provisions of the HSCA 2012 relate to the application of competition law, and what would repealing them actually achieve? This blog post explores these two questions by specific reference to s.72 HSCA 2012, so “competition law” is defined as the anticompetitive agreements and abuse of dominance provisions.[1] Read the rest of this entry »


Collective actions after the Consumer Rights Act 2015

May 5, 2015

(by Sebastian Peyer) On 30 March 2015 the Consumer Rights Act 2015 received Royal assent, introducing opt-out collective actions into UK competition law enforcement.[1] The UK system of private enforcement has long being criticised for being ineffective in compensating small businesses and consumers. The new opt-out procedures is hoped to encourage victims of anticompetitive conduct to seek redress in the Competition Appeal Tribunal (CAT). It mainly implements the changes suggested by the Department for Business, Innovation & Skill (BIS) that had consulted on options for reform in 2012. Opt-out collective or class actions are one mechanism to aggregate small individual claims. The success of class action rules depends on whether they provide enough incentives for representatives and law firms to bring these complex and costly legal actions. The general rules on litigation funding in the UK and the restrictions introduced with the Consumer Rights Act 2015 may make it difficult to raise funds to bring collective redress claims in the CAT. Read the rest of this entry »


The European Damages Directive fails to deliver, but can it be fixed?

March 3, 2015

(by Sebastian Peyer) The European Commission’s Damages Directive[1] was recently signed into law and the Member States have been given two years to implement the rules of the Damages Directive into national law. In this blog post I argue that the Directive fails to achieve its stated goal of compensation because it does not reduce litigation costs or incentivise the bringing of costly legal actions. Instead, the Damages Directive seeks to safeguard public enforcement from private follow-on actions. It is therefore unlikely to facilitate greater levels of private enforcement. For the Damages Directive to become effective, it should be supplemented with further legislation to incentivise stand-alone actions.[2] Read the rest of this entry »


Competition Law Compliance, Leniency and Corporate Governance: Between a Rock and a Hard Place?

November 26, 2014

(by Andreas Stephan). In the recent much talked about Automotive News article, ‘Confessions of a Price Fixer’, an anonymous Japanese car parts executive claims to have been incentivised by his firm to plead guilty to a US antitrust charge. The implication is that the firm did this to negotiate a lower fine with the US Department of Justice and possibly distract from the involvement of more senior employees. The individual, like many other Japanese executives involved in price fixing, has now served his time and is back at work with the same company. The story raises interesting questions about corporate governance; in particular firms’ failure to adequately discipline employees involved in cartel activity. However, even where there is a willingness to take action, the individuals involved in the infringement may hold all the cards. Read the rest of this entry »


Is the Head of Germany’s Bundeskartellamt Right to Suggest Criminal Law Sanctions are Too Severe for Cartels?

November 24, 2014

(by Andreas Stephan) It has been reported by Bloomberg Businessweek that the President of the German Federal Cartel Office recently expressed doubts as to whether criminal sanctions were necessary in the fight against cartels. His comments are indicative of the diverging approaches taken by cartel enforcement regimes. They are made all the more interesting by the fact Germany is one of the most active European enforcers of criminal law against bid-rigging arrangements and a suggestion by another Bundeskartellamt official that individual sanctions should be abandoned altogether. Read the rest of this entry »


European Pharmaceutical Antitrust after Groupment des Cartes Bancaires – Time to Rethink the Approach to Pay For Delay Settlements?

October 20, 2014

(by Sven Gallasch) Over the last year the European Commission has stepped up its enforcement efforts against pay for delay settlements[1]. In June 2013 they imposed a fine for the first time totalling €152 million, on a brand company (Lundbeck) and a number of generic companies for delaying the market entry of a cheaper generic version of Citalopram, an antidepressant drug. In subsequent decisions, the Commission imposed a fine of €16 million on Johnson & Johnson and Novartis for the delay of a generic pain-killer based on Fentanyl, and a fine in excess of €427 million on Servier and five generic companies in relation to the delay of generic version of the blood pressure drug Perindopril in July 2014 (see earlier blog post).

Although the full decisions are not yet in the public domain, it has become evident from the appeals against the Lundbeck decision that the Commission regards these pay for delay settlements as restrictions by object; they are assumed to be illegal without any effects analysis.[2] This blog post suggests that such an approach could prove costly for the Commission in the long run. Read the rest of this entry »


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