COMPETITION LAW CASE NOTES

National Grid Electricity Transmission plc v ABB Limited and others
16 April 2013
Author(s): Michael Armitage
Member(s) of Chambers involved in this case: Jon Turner QC, Daniel Beard QC, Laura Elizabeth John, Michael Armitage

In the latest ruling in the ongoing follow-on damages action by National Grid against members of an international gas-insulated switchgear cartel, Roth J has ruled that the French defendants are not subject to a real risk ...

2 Travel Group Plc v Cardiff City Transport Services Ltd ~ [2012] CAT19
17 July 2012
Author(s): Ligia Osepciu
Member(s) of Chambers involved in this case: Michael Bowsher QC, Anneliese Blackwood

In this rare decision on the appropriate quantum of follow-on damages, the Competition Appeal Tribunal has also made the first award of exemplary damages in a UK competition law case. However, given that the Tribunal has accepted ...

Ryanair Holdings plc v Office of Fair Trading (Aer Lingus Group plc intervening)
6 September 2011
Author(s): Owain Draper
Member(s) of Chambers involved in this case: John Swift QC, Daniel Beard QC, Alistair Lindsay, Josh Holmes, Julian Gregory

On 28 July 2011, the Competition Appeal Tribunal ("CAT") gave judgment on the application by Ryanair Holdings plc ("Ryanair") for judicial review of the decision by the Office of Fair Trading ("OFT") that it would be in time (should it decide to ...

Eden Brown Limited & others v Office of Fair Trading
20 July 2011
Author(s): Owain Draper
Member(s) of Chambers involved in this case: Paul Lasok QC, John Swift QC, Christopher Vajda QC, David Unterhalter SC, Paul Harris QC, Daniel Beard QC, Kassie Smith QC, George Peretz, Ronit Kreisberger, Alan Bates, Philip Woolfe, Owain Draper

On 1 April 2011, the Competition Appeal Tribunal ("CAT") allowed in part the appeals of 3 undertakings against the penalties imposed by the OFT in its decision on the "Construction Recruitment Forum" cartel. The CAT (Mr ...

C-16/10 The Number Ltd & Conduit Enterprises Ltd v Ofcom & BT
11 May 2011
Author(s): Ligia Osepciu
Member(s) of Chambers involved in this case: Christopher Vajda QC, George Peretz, Fiona Banks

The CJEU's recent judgment in this case has found the wholesale obligation and ex ante price regulation imposed by Oftel (Ofcom's predecessor) upon BT in respect of telecommunications subscriber data held on BT's Operator ...

Enron Coal Services Limited v English Welsh & Scottish Railway ~ Follow-On Claims - When is a Finding of Fact Not a Finding of Fact? When it is a Matter of Mere Arguable Inference
9 February 2011
Author(s): Rob Williams
Member(s) of Chambers involved in this case: Paul Lasok QC, Daniel Beard QC, Rob Williams

Enron Coal Services Limited's follow-on claim against English Welsh & Scottish Railway has done much to define the CAT's jurisdiction over follow-on claims under section 47A of the 1998 Act.  The case was the first of its kind to reach a ...

Apparent Bias in the Competition Commission? ~ BAA Ltd v Competition Commission & Ryanair Ltd
2 November 2010
Author(s): Laura Elizabeth John
Member(s) of Chambers involved in this case: Ben Rayment

The Court of Appeal has restored the Competition Commission ('the Commission') decision ordering BAA to divest itself of Gatwick airport, Stansted airport, and either Glasgow or Edinburgh airport, finding that there was no apparent ...

Case T-448/05 Oxley Thread v Commission, judgment of the General Court
21 May 2010
Author(s): Jorren Knibbe
Member(s) of Chambers involved in this case: George Peretz

In its judgment of 28 April 2010, the General Court has rejected Oxley Thread Ltd's appeal against a penalty imposed by the European Commission in cartel proceedings.  Oxley's appeal was one of several against the same ...

BSkyB v Competition Commission ~ [2010] EWCA Civ 2
24 March 2010
Author(s): Owain Draper
Member(s) of Chambers involved in this case: Paul Lasok QC, John Swift QC, Daniel Beard QC, Rob Williams, Elisa Holmes

On 21 January 2010, the Court of Appeal (Rix LJ, Lloyd LJ and Mackay J) dismissed the appeal of British Sky Broadcasting Group plc ("Sky") against the decision of the Competition Appeal Tribunal ("CAT") of  29 September 2008 in which the CAT ...

IB v the Queen [2009] EWCA Crim 2575 ~ Crown Court has jurisdiction to try the cartel offence:
5 January 2010
Author(s): Ligia Osepciu
Member(s) of Chambers involved in this case: Jon Turner QC, Anneli Howard

Construing section 188 of the Enterprise Act 2002 ("the 2002 Act") for the first time, the Court of Appeal has upheld the judgment of Mr Justice Owen, holding that the Crown Court has jurisdiction to try an indictment alleging the "cartel ...

Hutchison 3G UK Limited v The Office of Communications [2009] EWCA Civ 683 ~ Ex ante and ex post regulation: Is regulation to be taken into account in deciding whether to regulate?
10 August 2009
Author(s): Laura Elizabeth John
Member(s) of Chambers involved in this case: Peter Roth QC, Jon Turner QC, Josh Holmes, Meredith Pickford

Following a complex procedural history, the issue of mobile call termination charges was considered by the Court of Appeal.  Hutchison 3G UK Limited ('H3G') appealed against a decision by the Office of Communications ('OFCOM'), upheld by the ...

Emerald Supplies Ltd v British Airways Plc ~ [2009] EWHC 741 (Ch)
23 July 2009
Author(s): Jorren Knibbe
Member(s) of Chambers involved in this case: Ben Rayment

The Claimants (Emerald) were flower importers who used the international air freight services of BA and other airlines. Emerald brought a private damages action in the High Court alleging that a cartel relating to air freight prices, of which BA ...

Follow-on damages claims: The CAT or the High Court? ~ National Grid v ABB Limited and ors [2009] EWHC 1326
9 July 2009
Author(s): Elisa Holmes
Member(s) of Chambers involved in this case: Jon Turner QC, Daniel Beard QC

The recent decision of the Chancellor in National Grid Electricity Transmission PLC v ABB Limited and others [2009] EWHC 1326 (Ch) has made the High Court a more attractive forum for follow-on damages claims, at least in relation to decisions of ...

State aid and the grant of telecoms licences ~ The judgment of the ECJ in the Bouygues case
29 May 2009
Author(s): Kassie Smith QC
Member(s) of Chambers involved in this case: Christopher Vajda QC

On 2 April 2009, the European Court of Justice ("ECJ") handed down judgment in Case C-431/07 P Bouygues SA v Commission.  The ECJ upheld the judgment of the Court of First Instance ("CFI"). ...

National Grid plc v Gas and Electricity Markets Authority (Capital Meters Ltd and Siemens plc and anr intervening)
15 May 2009
Author(s): Fiona Banks
Member(s) of Chambers involved in this case: Christopher Vajda QC, Jon Turner QC, Kassie Smith QC, Ben Rayment, Josh Holmes, Meredith Pickford, Laura Elizabeth John

The Competition Appeal Tribunal (the 'CAT') has recently decided National Grid's appeal against a finding by Ofgem that it had abused its position of dominance in the market for the provision of domestic gas ...

First challenge to OFT's prioritisation policy and operation of concurrency regulations ~ R(Cityhook Ltd) v Office of Fair Trading [2009] EWHC 57 (Admin)
7 May 2009
Member(s) of Chambers involved in this case: Paul Lasok QC, Jon Turner QC, Ben Rayment, Meredith Pickford

Cityhook sought judicial review of the decision of the Office of Fair Trading (OFT) not to pursue further an investigation into Cityhook's complaint under the Competition Act 1998 that it was the subject of an illegal collective boycott by the ...

Freesat Free to Decide ~ JML Direct Ltd v Freesat UK Ltd [2009] EWHC 616
7 May 2009
Member(s) of Chambers involved in this case: Tim Ward QC, Ben Lask

In May 2008, the BBC and ITV launched "Freesat", a new service offering multi-channel digital satellite TV on a "free-to-air" basis. This case concerned the allocation of Electronic Programme Guide ("EPG") numbers by Freesat to the ...

Appealing Against One's Own Success ~ (1) Office of Communications, and (2) T-Mobile UK Ltd v Floe Telecom Ltd (in liquidation) [2009] EWCA Civ 47
31 March 2009
Author(s): Laura Elizabeth John
Member(s) of Chambers involved in this case: Meredith Pickford, Anneli Howard, Ben Lask

It is trite to say that an appeal is a losing party's prerogative. However, the Court of Appeal in its recent judgment in (1) Office of Communications, and (2) T-Mobile UK Ltd v Floe Telecom Ltd ...

Case T-196/04 Ryanair v Commission
14 January 2009
Author(s): Laura Elizabeth John
Member(s) of Chambers involved in this case: John Swift QC, Josh Holmes

Striking down Commission Decision 2004/393/EC ('the Contested Decision'), the Court of First Instance of the European Communities ('the CFI') in Case T-196/04 Ryanair v Commission,  has ruled for the first time on the ...

Bookmakers' Afternoon Greyhound Services Limited v Amalgamated Racing Limited [2008] EWHC 1978 (Ch)
24 November 2008
Author(s): Anneliese Blackwood
Member(s) of Chambers involved in this case: Peter Roth QC, Paul Harris QC, Ronit Kreisberger, Ewan West

This case involves the intersection of two very British pastimes; horseracing and betting. There are 60 racecourses in Great Britain and since 1986 it had been lawful for live pictures of horseracing to be shown in Licensed Betting ...

Delving into the detail: the CAT's scrutiny of cost-benefit analyses ~ ~ Vodafone Ltd v OFCOM [2008] CAT 22
24 November 2008
Author(s): Laura Elizabeth John
Member(s) of Chambers involved in this case: Tim Ward QC, Meredith Pickford, Alan Bates

Whilst the courts can sometimes display reluctance when asked to delve into the technical or financial detail that lies behind public law decision-making, such reluctance is considerably less evident in the Competition Appeal ...

Chester City Council & Chester City Transport v Arriva plc, Arriva Cymru Limited & Arriva North-West Limited
20 June 2007
Author(s): Fiona Banks
Member(s) of Chambers involved in this case: Paul Harris QC

The High Court has just considered the application of Chapter II of the Competition Act 1998 in the context of the bus industry and, in particular, in relation to allegations of 'predatory pricing' and 'flooding the market'. In ...

Fairness in Context ~ Abbey Mine Limited v The Coal Authority [2007] EWHC 1189 (Admin)
30 May 2007
Author(s): Elisa Holmes
Member(s) of Chambers involved in this case: Christopher Vajda QC, Josh Holmes

The application of rules of procedural fairness to the decision-making and review procedures of the Coal Authority was considered by the Administrative Court in Abbey Mine Limited v The Coal ...

Makers v. OFT: Raising the Roof on Cartel Penalties
1 March 2007
Author(s): George Peretz
Member(s) of Chambers involved in this case: Tim Ward QC

Makers v. OFT [2007] CAT 11 is another decision of the Competition Appeal Tribunal arising out of the OFT's investigations into bid-rigging in the roofing industry.  But the points it raises are of general importance ...

Abuse of Dominance by Excessive Prices: How much is too Much? ~ Attheraces Limited v The British Horseracing Board Limited [2007] EWCA Civ 38
5 February 2007
Author(s): Alan Bates
Member(s) of Chambers involved in this case: Peter Roth QC

Excessive pricing, discriminatory pricing and refusal to supply are among the three most difficult areas of competition law.  In a landmark judgment on Article 82 and the Chapter 2 prohibition delivered on 2 February 2007, the ...

Toys and Football: Double Win for OFT Confirmed on Replay ~ Argos, Littlewoods and JJB v OFT: Lessons in Brevity, Concertation and Penalties
20 October 2006
Author(s): Julian Gregory
Member(s) of Chambers involved in this case: Paul Lasok QC, Jon Turner QC, Kassie Smith QC, Anneli Howard

The Court of Appeal began its judgment in the Football Kit and Toys/Games appeals (Argos, Littlewoods and JJB v OFT [2006] EWCA Civ 1318) by criticising the length of the judgments of the Competition Appeal Tribunal (CAT), ...

Doping: a Rule of Reason for the Sporting Exception?
9 October 2006
Author(s): Paul Harris QC
Member(s) of Chambers involved in this case: Paul Harris QC, Ben Lask

With Tour de France winner Floyd Landis and Olympic 100m champion Justin Gatlin facing possible bans following their recent positive drugs tests, the ECJ's judgment in Meca-Medina provides ...

Completing Notifiable Mergers without Notifying the OFT: a Risky Business?
4 October 2006
Author(s): Ronit Kreisberger
Member(s) of Chambers involved in this case: Paul Lasok QC, John Swift QC, George Peretz, Ben Rayment, Jorren Knibbe

On 22 September 2006, the Competition Appeal Tribunal ("the CAT") handed down judgment in a challenge, brought under section 120 of the Enterprise Act 2002, by the parties to a completed merger, Stericycle International ...

House of Lords Reverses Court of Appeal Judgment in Inntrepreneur v Crehan
25 July 2006
Member(s) of Chambers involved in this case: Sir Jeremy Lever KCMG QC, Jon Turner QC, Ronit Kreisberger

On 19 July 2006, the House of Lords brought thirteen years of litigation to an end when it overruled the Court of Appeal's judgment in the case of Inntrepreneur Pub Company ("Inntrepreneur") and Crehan.  The Court of Appeal ...

The CAT's Powers Redefined ~ Court of Appeal clarifies the CAT's powers when remitting a matter back to the regulator
3 July 2006
Author(s): Alan Bates
Member(s) of Chambers involved in this case: Peter Roth QC, Jon Turner QC, Gerry Facenna

The appeal to the Court of Appeal concerned the judgment given, and order made, by the CAT1 when allowing an appeal by Floe Telecom Limited (in administration) ("Floe") against a decision of the Director General of ...

Costs in the CAT: an Update
30 June 2006
Author(s): Philip Woolfe
Member(s) of Chambers involved in this case: Sir Jeremy Lever KCMG QC, Peter Roth QC, Jon Turner QC, Kassie Smith QC, George Peretz, Josh Holmes, Meredith Pickford, Anneli Howard

The Competition Appeal Tribunal ("CAT") is a specialist tribunal and is developing specialist costs principles to match. The CAT's costs decisions reflect both public interest considerations particular to the statutory schemes it ...

Judicial Review in the CAT ~ Somerfield plc v Competition Commission and ACS v OFT
6 March 2006
Author(s): Ben Rayment
Member(s) of Chambers involved in this case: Paul Lasok QC, John Swift QC, Jon Turner QC, Daniel Beard QC, Kassie Smith QC, Jennifer Skilbeck, Ben Rayment, Julian Gregory, Alan Bates

As the new UK competition law regime continues to unfold, the Competition Appeal Tribunal ("CAT") has recently registered two firsts in relation to its judicial review jurisdiction under the Enterprise Act 2002 ("the 2002 ...

Claymore/Arla v OFT
15 September 2005
Author(s): Ronit Kreisberger
Member(s) of Chambers involved in this case: Jon Turner QC, George Peretz

Claymore is a Scottish milk processor which supplies milk primarily to the North of Scotland.  It was acquired in 1998 by Express Dairies ("Express") which was, at the time, the largest processor of fresh milk in Engla nd and ...

The Racecourse Association Ahead at the Finish Line
15 September 2005
Author(s): Jennifer Skilbeck
Member(s) of Chambers involved in this case: Christopher Vajda QC, Julian Gregory

The Competition Appeal Tribunal's ("CAT") recent judgment in The Racecourse Association v OFT [2005] CAT 29 raises the important issue of the circumstances in which joint selling might be considered anti-competitive.  It is ...

Competitive Pricing in Competition Law ~ Food for Thought from the Privy Council
15 July 2005
Author(s): Jennifer Skilbeck

Analysis of anti-competitive pricing by a dominant firm has always been difficult. Practitioners will be familiar with the general rule set out in AKZO (Case C-62/86 AKZO Chemie v Commission [1991] ECR I-3359) in ...

JJ Burgess v OFT ~ The CAT Reviews the Law on Refusal to Supply by a Dominant Undertaking
15 July 2005
Author(s): Heriot Currie QC
Member(s) of Chambers involved in this case: John Swift QC, Peter Roth QC, Kassie Smith QC, Andrew Macnab, Jennifer Skilbeck

On 6 July 2005 the Competition Appeal Tribunal ("CAT") issued its judgment on the appeal by JJ Burgess ("Burgess") against the decision of the OFT that W Austin & Sons (Stevenage) Limited ("Austins") were not in breach of the ...

Viking Line Abp v. (1) The International Transport Workers' Federation and (2) The Finnish Seamen's Union
15 July 2005
Author(s): Gerry Facenna
Member(s) of Chambers involved in this case: Kassie Smith QC

On the basis of Article 43 EC (freedom of establishment), the Commercial Court recently granted a permanent injunction that prevents a trade union in Finland from taking industrial action against a Finnish shipping company in protest ...

Penalties Imposed for Toys Cartels
14 June 2005
Author(s): Elisa Holmes
Member(s) of Chambers involved in this case: Kassie Smith QC

On 29 April 2005 the Competition Appeals Tribunal ("CAT") handed down its judgment on penalty2 in the Argos and Littlewoods appeals.  The CAT imposed a penalty on Argos of £15 million, and on Littlewoods of £4.5 ...

Replica Kit Penalties Varied by the CAT
14 June 2005
Author(s): Elisa Holmes
Member(s) of Chambers involved in this case: Peter Roth QC, Jon Turner QC, Paul Harris QC, Andrew Macnab, George Peretz, Anneli Howard

On 19 May 2005, the Competition Appeals CAT ("CAT") handed down its judgment on penalty in the Umbro Holdings Limited ("Umbro"), Manchester United plc ("MU"), JJB Sports plc ("JJB") and Allsports Limited ("Allsports") appeals.2 The ...

Unichem Limited v Office of Fair Trading
9 June 2005
Author(s): Ben Rayment
Member(s) of Chambers involved in this case: Peter Roth QC, Daniel Beard QC

This case involved the second full application to the UK Competition Appeal Tribunal (the Tribunal) for a review of a decision of the OFT to clear a merger without a reference to the Competition Commission (CC) under s.120 of the ...

Apex: CAT on a Hot Tin Roof?
6 May 2005
Author(s): Ben Lask
Member(s) of Chambers involved in this case: Tim Ward QC, Daniel Beard QC

On 25 February 2005 the Competition Appeal Tribunal ("CAT") dismissed an appeal by Apex Asphalt and Paving Co. Limited ("Apex") against the OFT's decision on anti-competitive practices in the roofing industry.  Apex was one of ...

From Rio to Meca: Another Step on the Winding Road of Competition and Sports Law
6 May 2005
Author(s): Julian Gregory

On 19 December 2003, a Football Association ("FA") disciplinary hearing found Rio Ferdinand, the Manchester United and England defender, guilty of failing to submit to drug testing, and imposed a fine of £50,000 and an eight- ...

Tetra Laval ~ Is That Really a Lioness in the Park?
6 May 2005
Author(s): Julian Gregory

"[S]ome things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of ...

The Toys Appeal ~ The CAT's judgment with regards to cartel pricing by Argos and Littlewoods
24 December 2004
Author(s): Kassie Smith QC

Following its judgment in the Replica Football Kit appeals, the Competition Appeal Tribunal ("CAT") has handed down judgment in its second substantive cartels appeal.  Again, the CAT has upheld the OFT's decision and, in this case, found ...

The Replica Football Kit Appeals ~ Judgment 1st October 2004 by the Competition Appeal Tribunal
7 October 2004
Author(s): Ben Rayment
Member(s) of Chambers involved in this case: Peter Roth QC, Jon Turner QC, Paul Harris QC, Andrew Macnab, George Peretz, Anneli Howard

On 1 October the Competition Appeal Tribunal ("CAT") handed down its long awaited judgment in the Replica Football Kit case.  This is the first appeal against a cartel decision under the Competition Act 1998 ("the 1998 Act"). ...

Can a Major Public Sector Purchaser Control the Prices it Pays or Is It Subject to the Competition Act? ~ Cases C-264/01, C-306/01, C-354/01 & C-355/01: AOK Bundesverband v Ichthyol (AOK), ECJ, 16th March 2004
18 March 2004
Author(s): Jennifer Skilbeck

Pressure on the public sector to increase the efficiency of its purchasing has led to some public sector purchasers adopting practices which may be unfair and anti-competitive.  The OFT is currently investigating the purchasing practices of ...

OFT v IBA Health ~ A New Regime Emerges
28 February 2004
Author(s): Ben Lask
Member(s) of Chambers involved in this case: Peter Roth QC, Daniel Beard QC

On 19 February 2004 the Court of Appeal handed down judgment in OFT v IBA Health - the first case to consider the new merger control regime established by the Enterprise Act 2002 ("the ...

Scott SA -v- Commission ~ Before 1999, one of the many unsatisfactory features of the EC State aids regime was that there was no limitation period that applied to the Commission’s power to order recovery by a Member State of unlawful State aid.
22 May 2003
Author(s): George Peretz
Member(s) of Chambers involved in this case: Sir Jeremy Lever KCMG QC, George Peretz

Before 1999, one of the many unsatisfactory features of the EC State aids regime was that there was no limitation period that applied to the Commission’s power to order recovery by a Member State of unlawful State ...

Fenin: a Pyrrhic Victory for Public Sector Buyers?
26 April 2003
Author(s): Jennifer Skilbeck

The definition of an "undertaking" for competition law purposes has taken a further turn with two cases, one at the UK Competition Commission Appeals Tribunal and one at the European Court of First ...

Lladro Comercial SA ~ OFT Decision of 31st March 2003
31 March 2003
Author(s): George Peretz
Member(s) of Chambers involved in this case: George Peretz, Julian Gregory

This decision - in which Lladró was found to have infringed Chapter I of the Competition Act but in which no penalty was imposed - raises a number of interesting ...

Claymore Dairies et al. v. DGFT ~ [2003] CAT 3
15 March 2003
Author(s): George Peretz
Member(s) of Chambers involved in this case: Jon Turner QC, George Peretz, Valentina Sloane

Section 46(3) of the Competition Act limits the types of decisions of the OFT against which appeals may be brought to the Competition Appeal Tribunal (CAT).  Decisions falling outside section 46(3) may be challenged only by way of judicial ...

Intel v VIA Casenotes
28 February 2003
Author(s): Anneli Howard
Member(s) of Chambers involved in this case: Jon Turner QC

Litigants are increasingly raising competition law arguments in High Court commercial litigation. This is not limited to the Courage v Crehan scenario where a claimant seeks damages for loss caused by an anti-competitive agreement ...

Airtours v Commission
10 June 2002
Author(s): John Swift QC
Member(s) of Chambers involved in this case: John Swift QC

The long awaited judgment of the Court of First Instance, given on 6 June 2002, in Airtours plc v Commission of the European Communities is the first occasion when a Commission ...

Bettercare Group Limited v. Director General Of Fair Trading
18 April 2002
Author(s): George Peretz
Member(s) of Chambers involved in this case: Jon Turner QC, George Peretz

In the first year of operating the Competition Act 1998 ("the Act"), the Director General of Fair Trading ("DGFT") opened around 1500 files as a result of complaints received. But only 46 formal investigations were launched under ...

Napp Pharmaceutical Holdings Ltd. v. Director General of Fair Trading
18 January 2002
Member(s) of Chambers involved in this case: Peter Roth QC, Jon Turner QC

Napp v. Director General of Fair Trading, in which judgment was handed down by the Competition Commission Appeals Tribunal on 15 January 2002, is a landmark case in UK competition law. ...