The Hunt/Murdoch Affair: Why a Secretary of State Should Have No Role in Merger Control

(by Andreas Stephan) This week there is continued pressure on the UK Culture Secretary, Jeremy Hunt, to resign. This follows revelations that his department was communicating with a News Corporation lobbyist at the time of its proposed acquisition of BSkyB,  precisely when he was meant to be acting in an independent and impartial manner.  This follows a media sting that revealed the apparent personal prejudice, this time against NewsCorp, which led to the Business Secretary, Vince Cable, being stripped of the role.  Such incidents highlight why it may be inappropriate to retain even the limited role of the secretary of state in UK merger control in relation to public interest considerations.

Breaking the deadlock? Private antitrust enforcement in the UK

(by Sebastian Peyer) Private antitrust enforcement in the UK has never got off the ground, even after the Competition Act of 1998 introduced enforceable antitrust provisions. Plaintiffs have not been able to secure a final judgment awarding damages for anticompetitive conduct, and very few injunctions based on competition law have been successful before UK courts. The consumer organisation Which? brought the only consumer group action joining fewer than 0.1 percent of the affected consumers and before settling the case with JJB Sports. An attempt by Emerald Supplies to establish a representative action under the existing Civil Procedure Rules failed.  Against this background of unsuccessful private enforcement, the UK Department for Business Innovation and Skills (BIS) this week launched its consultation on private actions in competition law.  Reform is long overdue, but have they got it right?

A Rebuttable Presumption of 20% Price Rise for Damages against Proven Cartels?

(by Bruce Lyons)  The UK Government yesterday published a consultation on private actions in competition law.  It includes a suggestion that there should be a rebuttable presumption that the cartel has resulted in higher prices.  20% is offered as a possible presumed increase due to the cartel.  This is an excellent idea and should be widely supported.  The only room for debate should be over the precise presumption to adopt and whether to extend this approach beyond cartels.

What is the Wrongdoing in Cartels? A Response to Blog Posts by Stephan and Whelan

(by Angus MacCulloch, Lancaster University) The future of the UK’s cartel offence has been the subject of much debate, including excellent contributions via the CCP blog by Andreas Stephan and Peter Whelan, since the publication of the BIS’s response to their consultation on competition reform. One of the main features of that debate has surrounded the position of the dishonesty element within the offence. Many responses to the consultation, particularly those involved with the defence bar, supported the continuing usefulness of dishonesty. The majority of academic opinion appears to be in favour of its removal from the offence; however, there is less consensus how the offence should be changed in light of its removal. This lack of consistency indicates to me that fundamental questions may still need to be addressed.

The General Court’s judgment in Telefónica: has the Atlantic Ocean just got wider?

(by Pinar Akman) On 29 March 2012 the General Court (GC) handed down its judgment in the case of Telefónica (Case T-398/07 Kingdom of Spain v European Commission).   The issue at stake was the Commission’s decision in Wanadoo España / Telefónica.  The original decision found that Telefónica’s pricing had been exclusionary and thus abusive despite it being approved by the regulator. The GC upheld the Commission decision in its entirety and dismissed the appeal.  This is in stark contrast to two famous US Supreme Court decisions which recently reached very different conclusions in similar circumstances.