United Kingdom

The UK Competition Appeal Tribunal (“CAT”) has made it more difficult for defendants in follow-on competition damages claims to plead that a claimant has mitigated any overcharge by reducing the costs paid to other suppliers in a recent judgment (“Royal Mail/BT v DAF”).
Continue Reading UK Competition Appeal Tribunal adds a hurdle to reliance on the pass-on defence

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In the first part, James Marshall and Sophie Albrighton focus on current trends in merger control. They are joined by guest speaker Louise Nash, Corporate Partner in Covington’s London office with over 20 years’ experience of global acquisitions, divestitures…
Continue Reading Emerging Trends in UK Competition Law Vlog Series – Part I: Merger Control

On Wednesday 28 April, the UK Parliament adopted the National Security & Investment Law (“NS&I Law”).  The law received Royal Assent the following day and will come into legal effect in late 2021.

The NS&I Law will introduce mandatory notification and pre-clearance requirements for transactions in 17 ‘core’ sectors.  This long-awaited piece of legislation, has passed through Parliament substantially un-amended, except that the investment threshold for mandatory notification has been raised from the acquisition of a 15 per cent. to 25 per cent. interest in shares or voting rights in an acquisition target. The UK Government retains extensive discretion to “call-in” investments for review, both within and outside the 17 ‘core’ sectors, including (i) acquisitions of control of assets and (ii) equity investments below the 25% threshold where “material influence” is acquired, if it reasonably suspects that a transaction gives rise to national security risks.
Continue Reading UK National Security & Investment Law is Approved by Parliament

On 16 February, John Penrose MP published his long-awaited report into the UK’s competition regime.  Penrose was tasked by the UK Government with reviewing how the UK’s competition regime can:

  1. Play a central role in meeting the challenges of the post COVID-19 economy and in driving recovery.  The Government’s Policy Paper stated that “the pandemic is the biggest threat the UK has faced in decades and overcoming it will require all the dynamism and creativity that exists across all sectors and in all regions and nations of the UK“;
  2. Contribute to the Government’s aim of levelling up across all nations and regions of the UK;
  3. Increase consumer trust, including by meeting the Conservative Party’s 2019 Manifesto commitment to tackle bad business practices, and ensure the competition regime is strong, swift, flexible and proportionate;
  4. Support UK disruptors taking risks on new ideas and challenging incumbents; and
  5. Make best use of data, technology and digital skills which are vital to the modern economy.

Continue Reading Proposals published for radical overhaul of UK competition regime following Brexit

The UK Supreme Court has today ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service., in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK.

Background

Mr Merricks is the proposed class representative for 46.2 million people who, between 22 May 1992 and 21 June 2008, purchased goods and/or services from businesses in the UK that accepted MasterCard cards.  Mr Merricks has valued that claim at in excess of £14 billion (and this sum will likely now be even greater, with interest having continued to run since the claim was filed in September 2016).  Our commentary on the earlier Court of Appeal decision in the case, with which the Supreme Court largely agreed, can be found here.
Continue Reading UK Supreme Court lowers the bar for collective actions

The UK Competition and Markets Authority (“CMA”) has published advice to the UK Government on the design and implementation of a new regulatory regime for digital markets. The new regime, if implemented, will apply to certain digital businesses that are designated as having Strategic Market Status, or “SMS”. It will provide for ex ante regulation that governs the conduct of key aspects of SMS firms’ activities, including a mandatory merger filing regime for SMS firms. The new regime will be administered by a new Digital Markets Unit (“DMU”) that will sit within the CMA.

The CMA’s recommendations are released at a time when scrutiny of, and regulatory changes for, digital markets are common across a number of jurisdictions. This includes the EU where the Digital Services Act and Digital Markets Act are expected to be published before Christmas. This blog post highlights some key elements of the proposed new digital markets regime.
Continue Reading UK CMA Published Recommendations for the Regulation of Digital Markets

Covington’s Brexit Task Force is pleased to offer the next installment in a series of on-demand briefings focused on the impact of Brexit on business.

The CMA after the Brexit Transition Period

In this briefing, James Marshall and Thomas Reilly discuss the impact of Brexit on the future role of the UK CMA and highlight…
Continue Reading Brexit On-Demand Webinar – The CMA after the Brexit Transition Period

The Enterprise Act 2002 (“EA02”) affords the CMA broad discretion in asserting jurisdiction over mergers that may affect a UK market. Under the EA02, a relevant merger situation (“RMS”) exists where (i) two or more enterprises cease to be distinct; and (ii) either the UK turnover of the target exceeds £70 million (the “turnover test”) or the parties supply or acquire at least 25% of a particular good or service in the UK (the “share of supply test”).

The first limb of the RMS test can be satisfied by the acquisition of de jure control, of de facto control (where it is able to control another company’s policy without holding a majority of the voting rights) or of material influence (where it can directly or indirectly materially influence policy without having a controlling interest ). The material influence test continues to be subject to significant debate.

The second limb of the RMS test aims to ensure that a transaction has sufficient nexus to the UK. The share of supply test is designed to enable the review of transactions which, while they do not trigger the turnover test, are of competitive significance in the UK. This share of supply test has been central to the CMA’s expansive assertion of jurisdiction in a number of recent cases. In Amazon/Deliveroo the CMA took an expansive approach to the notion of material influence. In Sabre/Farelogix the CMA adopted an expansive interpretation of what constitutes the supply of services in the UK, and it also took an expansive approach to the share of supply test in each of Roche/Spark and Google/Looker.Continue Reading The CMA’s approach to jurisdiction in recent merger cases

On June 22, 2020, the UK Government introduced legislation to Parliament that further strengthens its ability to intervene in transactions on national security and other public interest grounds.

Specifically, the UK Government has sought additional powers to intervene in transactions where there is need to preserve the capability of the UK to respond to a public health emergency or mitigate its effects. These new powers relating to public health emergencies came into effect on June 23, 2020. This development in the UK is the latest in a line of measures introduced in other European jurisdictions to tighten foreign direct investment (FDI) screening rules in the context of the COVID-19 pandemic.

In addition, the UK Government took this opportunity to propose expanding the list of sectors for which lower intervention thresholds apply in the UK, to include artificial intelligence, cryptographic authentication technology and advanced materials. These measures relating to critical technology sectors will come into effect at a later date, following Parliamentary debate and approval by both Houses of Parliament.Continue Reading UK Introduces Targeted New Powers to Scrutinise Foreign Investment

On 28 May 2020, the EU’s General Court (“GC”) annulled the European Commission’s (“Commission”) decision of 11 May 2016 in which the Commission had prohibited the acquisition of Telefónica UK (“O2”) by Hutchison 3G UK (“Three”). It is the first time the EU Courts interpreted the EU Merger Regulation in so-called “gap-cases”, i.e., concentrations in oligopolistic markets which do not result in the creation or strengthening of an individual or collective dominant position.

In the days following the judgment, a number of commentators already emphasised the importance of the GC’s ruling. This post intends to carry out a measured review of the judgment, assess the GC’s findings with respect to each of the Commission’s three theories of harm, and probe whether the judgment is indeed a landmark one.
Continue Reading The General Court Annuls the Commission’s Decision to Block the Acquisition of Telefónica UK by Hutchison 3G UK – a Landmark Judgment for EU Merger Control?