The Coalition Government has pressed ahead with plans to extend the application of Chapter I of the Competition Act 1998 to land agreements, previously excluded from its scope. Agreements relating to land, particularly covenants which directly or indirectly restrict the use of land, may need to be assessed to see if they infringe the Chapter I prohibition. This represents both a threat and an opportunity for commercial parties.

UK merger control remains relatively quiet.  There are currently no merger references from the OFT before the Competition Commission (the CC): the only ongoing merger investigation at the CC – Live Nation / Ticketmaster – arose as a result of a remittal from the Competition Appeal Tribunal (the CAT).  Nevertheless, the last six months has resulted in three merger appeals to the CAT (Sports Direct, Eventim and Stagecoach), the Court of Appeal’s decision in British Sky Broadcasting, and some very controversial CC decisions including: the reversals of the Provisional Findings in Stagecoach / Cavendish and Live Nation / Ticketmaster; the novel counterfactual analysis in Stagecoach / Preston Bus; and the unconditional clearance of Sports Direct / JJB Sports, which created local monopolies.

This note discusses recent appeals to the Competition Appeal Tribunal (the “CAT“) under ss. 120 and 179 of the Enterprise Act (the “Act“) against decisions of the Office of Fair Trading (the “OFT“) , the Competition Commission (the “CC“) and the Secretary of State (the “S/S“) on mergers and market investigations.  In both types of case, the CAT applies the same principles as would be applied by a court on an application for judicial review.

This material was first published by E.C.L.R Limited in E.C.L.R. Issue 3, 2010 and is reproduced by agreement with the Publishers

Draft guidance consultation document

In October, the OFT published a draft guidance consultation document, “Mergers – Exceptions to the duty to refer and undertakings in lieu”.  The draft proposes significantly to amend the existing guidance on the de minimis exception and also clarifies the OFT’s approach to the assessment of customer benefits.  The undertakings in lieu section contains an important discussion of the upfront buyer mechanism.  The deadline for comments is 15 January 2010.

Committee on Legal Affairs and Human Rights

This report is concerned with the extent to which the Council of Europe’s treaty law can be regarded as having both specificity and added value. It defines the considerations relevant to establishing such characteristics and examines the content and implementation of treaties that have been adopted in the six principal groupings of them that have been identified. The report finds that at the time of adoption the provisions in the treaties were entirely relevant and to a very large extent adequate for the issues being addressed.

Article written for the European Lawyer, October 2009

Institutional reform is not usually the stuff of passion.  But the Lisbon Treaty has generated in Ireland a dazzling array of emotions – weariness, hostility, frustration, incredulity, enthusiasm and, most of all, bewilderment. The second Irish referendum on the Treaty takes place on 2^nd October in a context where nothing has changed in the Treaty the voters are considering but everything has changed in the world in which they live.

In general, there is much to welcome in the draft Guidelines.  First, it is helpful that the documents issued by the Authorities following the Enterprise Act are being updated to reflect experience and developments.   Secondly, it is valuable that the Authorities have identified common ground on many issues (which ought to ensure consistency between the two bodies) and have articulated the issues on which they intend to take a different approach.

First published in GCP June 2009

The Competition Appeal Tribunal (“the CAT”) gave judgment in the NAPP case, the first ever appeal, which included an appeal on penalty, under the Competition Act 1998 (“the Competition Act”) back in January 2002. In the intervening seven and a half years, the CAT has delivered a number of important judgments which reveal the way in which the CAT will exercise its jurisdiction to review penalties imposed by the Office of Fair Trading (“the OFT”) and other regulators. This article focuses on two particular aspects of this line of case law: the status accorded to the OFT’s Guidance on penalties and the principle of equal treatment, and then considers the implications of the CAT’s approach for parties seeking to appeal penalties.

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 Offices (“LBOs”).