OFT Sets the Standard for Promoting Competition Law Compliance

(by Andreas Stephan) The UK’s Office of Fair Trading should be applauded for making concerted efforts to promote competition law compliance. Today they published new guidance for businesses and directors (amended following a public consultation), as well as simple advice on compliance presented in the form of a ‘Quick Guide’ and ‘Four Step Compliance Wheel’.  They have even produced a compliance film.

ECJ Ruling in Pfleiderer Heightens Concerns about Encouraging Private Enforcement

(by Andreas Stephan) The European Court of Justice (ECJ) has ruled that EU Law does not prohibit access to leniency documents by third parties seeking damages. Access should be determined according to national law, which must weigh the interests arguing in favour and against a disclosure of documents received under leniency.  The possibility of such access being granted is a further way in which private enforcement could undermine public enforcement, raising the question of whether competition authorities are shooting themselves in the foot by encouraging such actions.

How should Decisions be made in a Competition Authority?

(by Bruce Lyons) The proposed merger of the OFT and Competition Commission is a great opportunity to review how decisions should best be made in a competition authority.  There are plenty of alternative models and most countries seem to have their own distinctive styles.  Much of the reputation of different agencies results from the expertise of its staff, including economists, lawyers and administrators.  This can sometimes paper over the cracks of a fragile formal decision-making structure.  In the long term, however, a robust institution is one that provides a well-informed challenge to both firms and its own staff.  Unfortunately, there is a serious danger that the UK’s proposed Competition and Markets Authority (CMA) will be given a hotch-potch of superficially targeted, but in practice incompatible, decision processes by which different bits of competition law are enforced by a divided institution.