A refusal to make a ‘Collective Proceedings Order’ in England can be appealed

In its 13 November 2018 judgment in Merricks v MasterCard, the English Court of Appeal (the CA) determined that a refusal by the Competition Appeal Tribunal (CAT) to grant a Collective Proceedings Order (CPO) can be appealed to the Court of Appeal.

A CPO is the order by which the CAT authorises a class representative to act as such in the collective proceedings action and sets out certain basic details, such as the parties’ names, the definition of the class (and any sub-class), the common issues to be determined and the remedy sought. Without a CPO the collective action cannot proceed.

The CA concluded that the refusal of a CPO is likely to prevent individual members of the represented class who have suffered loss from obtaining any compensation. Consequently, it concluded that in substance, a refusal of a CPO is a decision as to the award of damages within the meaning of the Competition Act 1998 (CA98), which can, consequently, be appealed to the Court of Appeal.

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Advanced Competition Law Conference Brussels – Joint Presentation on Recent EU Cartel Enforcement

On 20 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual presentation at the Advanced EU Competition Law Conference in Brussels.  Their presentation covered their now-traditional three pillars: enforcement, policy and court review. Continue Reading

Land agreements rise up the CMA’s agenda

In October, the UK’s Competition and Markets Authority (CMA) imposed a fine of 1.6 million GBP for a land agreement which it found to infringe competition law. This is the first time that the CMA has taken enforcement action and issued a fine in relation to a land agreement, despite such agreements having been covered by the Chapter 1 prohibition (the UK equivalent of Article 101 TFEU) since 2011. The imposition of the fine, together with increased activity by the CMA in this sector, suggests that undertakings with land agreements should carefully check their compliance with competition law. Whatever “grace to adapt” has been afforded to businesses by the CMA since the change in the law has clearly come to an end.

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The CMA’s Paper on Pricing Algorithms, Collusion and Personalised Pricing

On 8 October 2018, the UK Competition and Markets Authority (“CMA”) published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalized pricing’ (the “Paper”). It follows a number of other initiatives from competition authorities regarding algorithms, including the recent German Monopolies Commission’s proposals regarding pricing algorithms, which was the subject of a Covington Competition Blog post. The CMA’s analysis reflects input from algorithm providers, other competition authorities, and the results of the CMA’s findings from pilot tests. The Paper is economic rather than legal in focus, and assesses the extent to which various algorithm models have the potential to affect competition.

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The European Commission finds no illegal State aid was provided by Luxembourg’s non-taxation of McDonald’s

On 19 September 2018, the European Commission (“Commission”) issued a press release declaring that Luxembourg did not provide illegal State aid to McDonald’s with regards to two tax rulings that resulted in double non-taxation of franchise profits in Luxembourg. The Commission’s three-year-long in-depth investigation established that Luxembourg had merely acted in compliance with its national tax laws and that the double non-taxation was the result of a mismatch between Luxembourg and US tax law, as opposed to a more favourable treatment given to McDonald’s compared to other companies in Luxembourg.

The Commission’s initial concerns

In December 2015, the Commission launched an investigation into McDonald’s Europe Franchising (“MEF”), a EU subsidiary of the US-based McDonald’s Corporation. At issue were two tax rulings regarding MEF, a tax resident of Luxembourg with one Swiss branch and one US branch, that received franchisee royalties from outlets in Europe, Ukraine and Russia. Continue Reading

IoT Update: BEREC launches public consultation on the ‘Data Economy’

On the 10th October 2018, BEREC (the Body of European Regulators for Electronic Communications) launched its public consultation on the ‘Data Economy’. This comes at a time when different regulators are increasingly discussing the importance of big data, including the opportunities and risks that it brings about, how these may evolve, and how (and increasingly who should take the responsibility) to regulate. While the data protection and competition authorities have so far been most vocal in this deepening regulatory debate, the opening of this consultation represents a clear and decisive move by European telecom regulators to ‘throw their hat’ into the ring and get included in the discussion – and potentially future regulation – of Europe’s data economy.

All interested stakeholders, including public organisations, industry actors, consumers, associations, academics, financial advisers, and other stakeholders with expertise or interest in the data economy are strongly encouraged to have their say. BEREC’s consultation video can be accessed here, and the consultation is open until 21 November 2018.

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Antitrust Damages in the English High Court

On 9 October 2018, the High Court of England and Wales handed down its first reasoned damages award in a follow-on antitrust damages claim (BritNed v ABB). Although BritNed had claimed damages of €180 million, the Court awarded it only €13 million plus simple interest. The claims for lost profits and compound interest were dismissed. In doing so, the Court provided important guidance to parties involved in antitrust damages claims in England, indicating an approach to economic evidence that is likely to find favour with the courts. Continue Reading

CAT upholds Ping’s fine: lessons on online sales bans

On August 24, 2017, the UK’s Competition and Markets Authority (“CMA”) fined Ping Europe Limited (“Ping”) £1.45 million for breaching UK and EU competition law by instituting a ban on online sales of Ping golf clubs.  Ping challenged the CMA’s decision before the Competition Appeal Tribunal (“CAT”).  On September 7, 2018, the CAT dismissed the appeal, but reduced Ping’s fine.

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The European Commission Publishes Summary Decisions for On-line Resale Price Maintenance Infringements

The European Commission (“Commission”) recently fined Denon & Marantz, Asus, Pioneer and Philips (the “Individual Parties”) a total of EUR 111 million for restricting the ability of online retailers to set retail prices for their products – a hard-core restriction under EU competition law known as “resale price maintenance” or “RPM” (the “Infringement Decisions”). These Infringement Decisions are noteworthy because: (i) they are the first e-commerce infringement decisions since the Commission’s 2017 Final Report on its e-commerce sector inquiry; and (ii) the last ‘traditional’ RPM fine imposed by the Commission was fifteen years ago in Po/Yamaha COMP/37.975 (16 July 2003).

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