Does the Prime Minister’s Unexpected Discussion of Competition Policy Signal a Softening of Brexit?

March 4, 2018

(by Andreas Stephan) On Friday 2 March 2018, in a much-anticipated speech meant to give clarity to the UK Government’s Brexit objectives,[1] the Prime Minister suggested that: (a) UK State Aid and Competition rules could remain aligned with those of the EU, and (b) UK courts could continue to have regard to judgments of the European Court of Justice (ECJ). Nevertheless, her speech also made it abundantly clear that the ECJ could not continue to have jurisdiction over the UK. While, on the face of it, this speech appears to reiterate Theresa May’s commitment to a ‘hard Brexit’, these significant concessions may signal a weakening of that resolve, as the Government acknowledges for the first time that – if the UK is to maintain a close trading relationship with the EU – the legal realities of Brexit will be complicated.   Read the rest of this entry »

Why ‘national security’ concerns are unlikely to impede the Melrose/GKN takeover

February 8, 2018

(by David Reader) After Melrose plc last week formalised its £7.4bn hostile takeover bid for the Armed Forces supplier GKN plc, Business Secretary Greg Clark is facing renewed pressure from the Labour Party and the UK’s largest trade union, Unite, to block any forthcoming deal on national security grounds.[1] Moreover, in response to questions over the transaction, the Prime Minister has herself declared that ‘the government as a whole will always act in the UK national interest’ when faced with such takeovers. Yet, although there is every possibility that the resulting merger would be subjected to national security scrutiny, there is only a very remote chance that the transaction would be blocked outright. Read the rest of this entry »

You lose, you pay (some) – the CAT’s cost ruling in Walter Hugh Merricks

January 23, 2018

(by Sebastian Peyer) The burden of costs in civil litigation is considered of great importance to the incentives to recover damages in competition law. In particular, the ‘loser-pays’ rule that dominates European legal systems is thought to create significantly greater risks for prospective collective actions, in contrast to the American rule where each party is normally responsible for paying its own costs.[1]  The UK Competition Appeal Tribunal’s (‘CAT’) recent ruling on cost in Walter Hugh Merricks v MasterCard is therefore significant in thwarting an attempt to deviate from the loser-pays rule that is prevalent in English civil litigation and striking a balance between applicants’ and respondents’ interests. Earlier this year, the CAT rejected an application for an opt-out collective proceedings order (‘CPO’) under section 47B of the Competition Act 1998 (see my comment here). The question that the CAT still had to answer was who would bear the cost of that unsuccessful CPO application and to what extent are the actual costs incurred recoverable. In its decision, the CAT stressed that the loser-pays rule applies to CPO applications, but reiterated that the parties’ expenses must be proportionate in order to be recoverable. This means that parties cannot inflate their expenses to discourage would-be claimants. Read the rest of this entry »

The deterrent effect of competition authorities’ work

September 15, 2017

(by Mike Walker^) In his post last month, Steve Davies bemoaned the lack of evidence on the magnitude of harm deterred by the activities of the Competition Agencies. He presented some estimates from research in CCP on cartel deterrence, concluding most strikingly: “On the most conservative of our estimates, more than half of all potential cartel harm never occurs, because it is deterred. This is very much a lower bound, and the proportion could be as high as 90%.” Read the rest of this entry »

Does the CAT’s fast-track procedure strike the right balance between claimants and defendants?

August 25, 2017

(by Sebastian Peyer) The Consumer Rights Act 2015 significantly expanded the jurisdiction of the Competition Appeal Tribunal (‘CAT’).[1] The Tribunal can now adjudicate stand-alone damages claims, award permanent and interim injunctions,[2] allow opt-out collective proceedings (see previous blog post) and deal with claims in the new Fast Track Procedure (‘FTP’). Enforcement mechanisms prior to 2015 were ineffective for small and medium sized enterprises (‘SMEs’) because of the high cost associated with bringing such actions before the High Court and the narrow jurisdiction of the Competition Appeals Tribunal (‘CAT’) for follow-on damages actions. A comparative glance at Germany showed that claimants had a strong preference for simply stopping anti-competitive behaviour through an injunction, yet even this simple tool was considered costly and complex in England. Since the introduction of the 2015 Act, a number of claimants have applied for the fast track procedure and the CAT has awarded one injunction in the FTP (Socrates Training Limited v The Law Society of England and Wales).[3]  The FTP appears to be both effective at capping costs to reasonable levels and, more importantly, at providing a credible mechanism to encourage out of court settlements. Read the rest of this entry »

The deterrence value of competition policy can and should be measured

August 17, 2017

(by Steve Davies) In a post last year, I argued that it was time for competition economists, both academics and practitioners, to start seriously tackling one of the big unknowns: how much harm is deterred by Competition Law and the Competition Authorities (CAs)? In this blog I pull together some results from three recently completed papers on cartel deterrence. I believe that these importantly move forward our understanding of this great unknown, and merit exposure to a non-academic audience in a non-technical way.

We have three ‘headline’ results. Read the rest of this entry »

Has the CAT’s MasterCard decision killed off opt-out class actions by indirect purchasers?

August 10, 2017

(by Sebastian Peyer) On 21 July the Competition Appeal Tribunal (‘CAT’) rejected an application for an opt-out collective proceedings order (‘CPO’) in Walter Hugh Merricks v Mastercard Inc, thereby  blocking the largest opt-out competition claim brought in the UK to date and one of the first large indirect purchaser actions. The applicant brought the claim on behalf of 46.2 million people asking Mastercard for around £14 billion in compensation. Despite the negative outcome for the applicant (and millions of consumers), the CAT’s decision has clarified a number of important points for future CPO applications. But the Tribunal’s decision may have also inadvertently raised the bar for indirect purchaser claims. Read the rest of this entry »