Brendan McGurk has successfully defended Italy and Benetton Lock, Marco Fuser, following his citing for an alleged bite on Francois Louw during the European Champions Cup clash between Bath and Benetton on 14 October 2017. Louw was also cited in the same incident for making contact with Fuser’s eye. Following a hearing before the EPCR Disciplinary Panel, the case brought against Fuser was dismissed.

The Competition Appeal Tribunal has dismissed an appeal by Balmoral Tanks against the CMA’s decision finding that Balmoral and its competitors infringed competition law by exchanging commercially sensitive information with respect to galvanised steel tanks.  The CMA found that an information exchange at a single meeting in July 2012 sufficed to establish the infringement.

The CMA had covertly video recorded the meeting as part of its criminal investigation into a seven year cartel between four suppliers of galvanised steel tanks. The CMA accepted that Balmoral was not part of that cartel but found that it had been guilty of a separate object infringement.

In its appeal, Balmoral argued that it attended the July 2012 meeting with the legitimate purpose of informing its competitors that it did not want to be involved in the cartel. It argued that it could not be criticised merely for having received inducements to join the cartel.  It also argued that a single meeting did not suffice to establish the infringement, that no sensitive information was exchanged at that meeting and that no fine should have been imposed given Balmoral’s positive impact on the market.

The Tribunal has fully upheld the CMA’s decision. In particular, it accepts the CMA’s findings that Balmoral was actively involved in an unlawful information exchange of sensitive information which reduced uncertainty on the market. The Tribunal confirms that, in the context of this market, the exchange of pricing information at a single meeting was unlawful.  The judgment carries out a detailed review of the CMA’s findings regarding the nature of the information exchanged between the parties and why that exchange constituted a “by object” restriction of competition.

The Tribunal stated that “It is because executives meeting together for a legitimate industry purpose must be firmly discouraged from giving into any temptation they may face to slip into illegitimate discussion of prices that the case law defines the concept of concerted practice in price exchanges so broadly.”

The Tribunal fully upheld the fine of £130,000 imposed on Balmoral, dismissing arguments that Balmoral should not have been fined having regard to the CMA’s approach to the cartelists, and that any fine imposed should have been lower.

The judgment can be found here.

Rob Williams and James Bourke acted for the CMA.

In the latest in a series of interim judgments in the Air Cargo cartel damages claims, which are being brought in the Chancery Division by several groups of claimants against British Airways plc, the High Court (Rose J) has held that Article 101 TFEU does not permit claims for damages to be brought in relation to air transport routes between the EU and third countries during the period before 1 May 2004. The judgment contains a detailed analysis of the temporal scope of the competition provisions in the Treaty and of the “Modernisation” Regulation (Reg. 1/2003), as well as the effect of the transitional regime in Articles 107 and 108 TFEU in the specific context of the air transport sector.

To read the judgment please click here.

Philip Moser QC, Ben Rayment and Conor McCarthy acted for the Emerald, Hyundai, Kodak and Allston Claimants.

Jon Turner QC and Michael Armitage acted for BA.

Daniel Beard QC and Thomas Sebastian acted for the Part 20 Airlines.

On 9 August 2017, the Supreme Court of Mauritius awarded Emtel, a mobile phone operator in Mauritius, £13 million damages in respect of loss suffered as a result of cross-subsidies granted by Mauritius Telecom (“MT”), the monopoly fixed line operator, to its mobile phone subsidiary, Cellplus.

The Claimant, Emtel, was the first mobile phone operator in Mauritius.  Several years after Emtel started operation, MT established Cellplus as a second mobile phone operator. The Court found that it was a condition of Cellplus’ licence that it would not benefit from any cross-subsidy from its parent. On its launch Cellplus significantly undercut Emtel’s tarrifs.  Emtel was forced to reduce its tariffs match to avoid losing market share. The Court found that Cellplus’ loss-making tariffs were funded by financial assistance from MT in the form of interest free inter-company debt and lease finance at non-commercial rates.

The Court concluded that the cross-subsidisation constituted unfair competition (concurrence deloyale) and amounted to a “faute” within the meaning of article 1382 of the Civil Code. The Court awarded damages to Emtel to compensate it for the difference between the reduced tariff actually charged and the tariff that would have emerged in a counterfactual where Cellplus competed without benefiting from cross-subsidies.

The Court further held that the regulator was jointly and severally liable for the loss suffered by the subsidised low tariff,  on the basis that it had committed a “faute lourde”. Emtel had complained to the regulator about Celllplus’ non-compliance, but the regulator had wilfully taken no action.

Mark Brealey QC appeared for Emtel (having been granted special dispensation by the Lord Chief Justice of Mauritius to appear in the Supreme Court). The trial lasted 8 weeks.

To read the judgment please click here.