Competition law litigation in the UK courts: a study of all cases 2005-2008- Part I

It is clear from a cursory examination of the academic literature in the field that private enforcement is an established, well-developed and vibrant mode of enforcement of US anti trust law, constituting the preponderance of anti trust enforcement activity complemented by public enforcement by the DOJ and FTC. Historically, arange of factors have combined to ensure that private enforcement is effectively the default setting for antitrust enforcement in general, namely the wider litigative culture, the significant period of development of antitrust law and economics, and the specific characeristics of US civil procedure: the rules on discovery, the funding of actions, the availability of class actions and the existence of treble damages actions, together with clarification(and modification)of the legal position in relation to issues such as the passing on defence and standing for indirect purchasers

Competition law compliance : The CMA 2015 study, compliance rationales and the need for increased compliance professionalism and education

Competition law, its implications for the economy and its consequences for industry are particularly topical and controversial. There are numerous examples of price - fixing cartels being uncovered by the competition authorities both internationally and dome stically, and there have also been recent and ongoing investigations and sanctions imposed under the EU abuse of dominance rule in Article 102 in relation to the unilateral conduct of global organisations such as Microsoft, Intel, and more recently Google and Amazon. The potential implications for UK industry of competition law and policy can be fairly dramatic, as stressed in the first brief part of this note. This sets the scene for the second part which will focus on the outcomes of a recent study of com pliance with competition law by UK businesses commissioned by the Competition and Markets Authority, and allows us to reflect on compliance research more generally and what can or should be done to further facilitate, cajole and encourage competition law compliance

Private enforcement of competition law, the hidden story part II : competition litigation settlements in the UK, 2008-2012

The author has undertaken research in recent years to attempt to provide a comprehensive account, over various periods, of all competition law litigation in the UK courts, involving the application of both EU and UK competition law, and was also principal Investigator on a wider AHRC funded project on competition case-law in the courts of all EU Member States between 1999-2012. The latter revealed interesting data and trends on competition litigation in the UK and across the EU. However, it has always been recognised that competition law disputes which are made visible by the existence of court judgments, and especially by final substantive judgments on the merits, are likely to be the ‘tip of the iceberg’. This was the rationale which underlay an earlier project by the author to collect information on the number and types of competition law settlements which took place between 2000 and 2005 in the UK, and sought to identify and inform about the ‘hidden story’ of settlement practice in the UK. The limited publicly available information in the UK can be contrasted with the USA, where there is considerably more antitrust litigation, a number of aspects of the litigation process have been considered and resolved, and where there is also more evidence of antitrust litigation settlement practice and outcomes. This article provides an account of a follow-up research project on competition litigation settlements in the UK, in relation to the period 2008-2012, comprising an extensive and focused analysis of the data accumulated in relation to the reported settlements during that period

A decade of EU law in the courts of Scotland and Ireland : national legal systems compared

This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom’s exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general

Competition law private enforcement in the UK courts : case-law developments 2013-2016

This article will outline and review competition law case-law developments in the UK courts between 2013 and 2016. The author has conducted previous comprehensive studies of competition rulings by the courts in the UK, involving the application of both EU and UK competition law. This article updates the position to the end of 2016 and allows for a greater understanding of both competition case-law trends and the approach of the judiciary to a number of key procedural and substantive issues

The application of EU law by the Scottish courts : an analysis of case-law trends over 40 years

This article will present the findings of a Carnegie funded project which looks at the application of European Union ('EU') law before the Scottish courts from UK accession in 1973. European law produces rights and obligations which must be given effect by national courts. Over the last 40 years the EU has been given competence in ever broader areas of substantive law which have changed the legal landscape across increasing areas of personal, social, business and economic life. Accordingly, the Scottish courts are required to apply EU rules to a broad range of legal disputes. This is the first comprehensive study of the application of EU law by the Scottish courts. It is important to consider the extent to which EU law is considered and applied in order to assess its impact on the Scottish legal order. This research project was triggered by the Scotch Whisky Association minimum alcohol unit pricing case. This case and the constitutional inter-relationship between EU law and Scots law that is at its core, leads to a wider inquiry about the role played by EU law in many disputes before the Scottish courts. The hypothesis is that there have been an increasing number of judgments in recent years applying EU law, demonstrating the increasing substantive reach and enhanced awareness of EU law. The article will assess different trends in the EU case-law before the Scottish courts to the end of 2015. This research is particularly prescient and important in the light of the recent Brexit outcome in the EU referendum, and should allow us to reflect on the significant impact Brexit is likely to have on the legal landscape in Scotland (and the UK more generally) and the potential difficulties in neatly unpicking 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making and the Scottish legal system in general

Transposition of the antitrust damages directive : critical observations

This article concerns the developing area of private enforcement of EU competition law, providing an analysis of the transposition across a broad selection of Member States (“MS”) of a major EU Directive introduced with the aim of harmonizing and facilitating competition law damages actions across the European Union. It provides an overview of the EU Antitrust Damages Directive (2014/104/EU), looks at the transposition outcomes in sixteen MS, briefly assessing the solutions followed by each of those MS in addressing the various issues raised by the Directive. In particular the article will consider a range of problems and limitations identified in relation to both the Directive itself and its transposition

Implementation of the Antitrust Damages Directive in the UK : limited reform of the limitation rules

This article will examine the implementation of the Antitrust Damages Directive in the UK, focusing on one central aspect, namely the reforms introduced to the rules on limitation (and prescription) of actions in a competition law litigation context. There has been considerable academic and practitioner literature about private enforcement of EU and domestic competition law in the last twenty years. Competition litigation has developed as a complement to public enforcement of competition law and to ensure that rights infringed by competition law breaches are compensated. The article will outline briefly the development of the laws, rights, procedures and mechanisms introduced through UK and EU law to facilitate private enforcement of competition law in the UK. There has been considerable domestic statutory development of the private enforcement architecture in the UK since the passing of the Competition Act 1998 and this has been supplemented at the EU level, in particular most recently by the adoption of the Antitrust Damages Directive. The Directive was finally introduced in 2014 after more than a decade of policy discussion at the EU level. The Directive seeks generally to introduce a set of provisions to establish a minimum level playing field of procedural and substantive laws to facilitate the recovery of compensation in relation to EU competition law infringements across the EU Member States courts. This article will outline generally the process of implementation of the Directive in the UK. A notable issue is the decision to apply the provisions of the implementing measures to actions involving both infringements of EU law and domestic competition law, despite the more limited EU law scope of the Directive itself. The article will focus on the limitation provisions in the Directive, given the centrality of limitation in the history of competition litigation in the UK, and the potential significance of the revisions to those rules which will be applicable in both an EU and domestic law context. The Directive implementation process in the UK demonstrates this polarisation both generally and specifically in relation to aspects of the revised limitation rules. Accordingly, after discussing the background to development of private competition law enforcement in the UK, the article will consider the interpretation and application of the limitation provisions in the domestic case-law over the last fifteen years. As will be noted, this has been an issue which has dominated the case-law particularly of the specialist Competition Appeal Tribunal. The article will then consider the impact of EU law and focus on the limitation provisions in the Directive and their implementation in the UK, assessing the potential impact on domestic court application of a key issue in competition litigation practice, namely the date the limitation period starts running

Application of the domestic and EU antitrust prohibitions : an analysis of the UK competition authority's enforcement practice

This article makes a significant and original contribution to the literature on the enforcement practices of competition authorities by providing the first comprehensive account of the work of the UK National Competition Authority (The OFT and latterly the CMA) in its primary task of enforcing the EU and domestic antitrust prohibitions. A rigorous empirical study of the full 19 years of enforcement practice provides the only detailed analysis of this central pillar of UK competition law enforcement, based on a new data-set on the prohibition Case Outcomes in that period which provides information on the quantity of cases, competition law provisions applied and types of Case Outcome. The article identifies and explains the apparent focus to date on by-object agreement competition law infringements and reveals data on the fining record of the UK competition authority. The article also provides the first data and narrative on the enforcement of the EU antitrust prohibitions within the UK. Overall, the article reveals a disappointing track record by the UK competition authority in enforcing both the domestic and EU prohibitions, on an absolute and relative basis, in comparison with other leading EU MS NCAs, and provides an empirically-driven account which allows us to reflect on experience to date and inform enforcement practice for the future