Ireland Offers a Glimmer of Hope for European Cartel Criminalisation

(by Peter Whelan)   In order for it to be successful, cartel criminalisation in Europe must overcome complex theoretical, legal and practical challenges.[1] Academics have an important role to play by offering theoretically-consistent, legally-sound, practical advice on how to devise and to implement a successful strategy of cartel criminalisation. In fulfilling this role, we should acknowledge when steps have been taken in the right direction by the EU Member States concerning the process of cartel criminalisation. Three significant steps have recently been taken by Ireland in this regard.

Cardiff Bus: Exemplary Damages in Follow-on Cases

(by Morten Hviid) Should there ever be the possibility of awarding exemplary damages in a private follow-on action for breach of competition law?  To my mind, the answer to this general question should be “NO”.  To be a follow-on claim, there must already have been an infringement decision by a relevant competition authority.  Where it finds an infringement, the competition authority is tasked with designing an appropriate punishment aimed at deterring and punishing the anticompetitive conduct.  When the follow-on case is commenced, the matter of punishment has already been dealt with and non bis in idem [not twice for the same] should rule out subsequent exemplary damages.  It should not be for a court or a Tribunal to run the case again as regards punishment unless this is as a result of an appeal of the original infringement decision.  With no differences in the standard of proof, arguments that “the defendant should have been fined” belongs to an appeal of the OFT decision, not in a new action for damages.

On the whole this logic has been followed in the UK, for example in Devenish[1] where Lewison J held (at [48]) that “the imposition of fines and an award of exemplary damages serve the same aim: namely to punish and deter anti-competitive behaviour”.  However, based on a logic that, while a zero fine as a result of a leniency programme is still a punishment, immunity from a fine arising from an OFT policy decision is not, the Competition Appeals Tribunal [CAT] in their recent Cardiff Bus decision[2] chose to award £60,000 in exemplary damages. 

Should Libor-Rigging be treated like Price Fixing?

(by Andreas Stephan) With multi-million pound fines, high profile resignations, heated arguments in Parliament and calls for criminalisation by the UK government, one would be forgiven for thinking that Libor rigging is worse than price fixing. Few fully understand the practice of falsely reporting expected borrowing rates, but everyone seems to want it severely punished. The scandal first came to light in 2008 when traders realised  the Libor rate was no longer reflecting reality. The question is whether calls for punishment and criminalisation are the best way to deal with Libor-fixing or whether the case has simply become a vent for wider public anger at the perceived evils of the banking sector.

An Argument Against a Specific Statutory Passing On Defence in Private Enforcement

(by Duncan Sheehan) One of the issues raised in the BIS consultation on private actions in competition law, is whether legislation should directly address a passing on defence. My controversial claim is that there is no defence in English competition law of passing on, and there should be no defence of passing on either. The law already deals with the problem by other means.

Ofcom’s Report on Measuring Media Plurality – The Outstanding Questions

(by Michael Harker) On 19 June, Ofcom published its report on the future of the media plurality rules. The process began in October last year, with the Culture Secretary, Jeremy Hunt asking the regulator a series of questions including: the metrics for the measurement of media plurality across platforms, the use of absolute limits on news market shares, and controversially whether there should be provision for a plurality review in the absence of a merger trigger.  Against the backdrop of the derailed News Corp/BSkyB merger, and the Leveson Inquiry’s probing of the Culture Secretary’s role in that bid, the Report and its recommendations may have important implications for the way in which media plurality is secured in the UK.