The submission suggests that despite misgivings over the Court of Justice of the EU continuing to exercise jurisdiction in the EU after Brexit, this situation should be accepted for a short period. Apart from any other considerations, it is hard to see what other process can be put in place in the time available. The Court of Justice should only retain jurisdiction for a short time after the transitional period. The EFTA Court would then provide a sensible forum for resolution of the various disputes that will have to be addressed.
The Competition Appeal Tribunal handed down a Judgment today setting aside parts of the CMA’s decision imposing combined fines on the pharmaceutical companies, Pfizer and Flynn, of around £90 million for charging unfairly high prices for the anti-epileptic drug, phenytoin sodium capsules, in breach of Article 102 TFEU / the Chapter II prohibition.
Although the Tribunal upheld the CMA’s findings that Pfizer / Flynn each occupied a dominant position in the relevant market, it struck down the findings of abuse on the basis that the CMA was wrong in law to confine its methodology for testing whether the drug prices were excessive to a purely “Cost Plus” approach. The Tribunal held that the correct approach, which the CMA should have but failed to adopt, was to identify a benchmark price or price range which would have applied in conditions of “normal and sufficiently effective competition”. In determining that benchmark price, the CMA should have given proper consideration to whether phenytoin sodium tablets – the prices of which were higher than the allegedly excessive prices for capsules – served as a meaningful price comparator. The CMA also erred in law in failing to have any regard to the benefit to patients of phenytoin capsules in determining their economic value.
The Tribunal has indicated that its provisional view is to remit the matter back to the CMA for further consideration, but has invited written submissions from the parties before coming to a final decision on remedy.
On 5 June 2018, the Secretary of State for Digital, Culture, Media and Sport published the final report of the Competition and Markets Authority (CMA) and announced his decision on the proposed acquisition by Fox of the remaining shares in Sky plc.
The CMA’s final report confirms its provisional finding that the transaction is not in the public interest due to media plurality concerns. The CMA concluded that the transaction may be expected to result in insufficient plurality of persons with control of media enterprises in the UK because it would lead to the Murdoch Family Trust (MFT), which owns 39% of Fox and News Corp, holding too great a degree of control over the diversity of viewpoints consumed by audiences in the UK, and would give the MFT too much influence over public opinion and the political agenda. The CMA also confirmed its provisional finding that there are no public interest concerns arising from lack of a genuine commitment to meeting broadcasting standards in the UK.
The CMA concluded that only prohibition or the divestiture of Sky News would provide an effective solution to the identified adverse public interest effects. Of these two options, the CMA recommended that the most effective and proportionate remedy would be the divestiture of Sky News to Disney or to another suitable upfront purchaser.
The Secretary of State has accepted the CMA’s findings and recommendations. Fox has written to the Secretary of State to offer undertakings on effectively the same terms as set out by the CMA in its final report. The Secretary of State has asked DCMS officials to begin immediate discussions with the parties to finalise the details of the undertakings with a view to agreeing an acceptable form of the remedy. The Secretary of State will then consult on the proposed undertakings.
The Court of Appeal has decided that VAT repayment claims made under section 80 VATA must refer to quarterly or monthly accounting periods. In Bratt, the taxpayer purported to make a Fleming claim for the whole of 1989 without identifying which of the sums claimed related to particular accounting periods. The Court of Appeal agreed with HMRC that this was not a valid claim since a claim under section 80 was one to recover an amount which was not in fact VAT which had been accounted for to HMRC “for a prescribed accounting period”. Therefore, the claim had to identify the relevant accounting period and the quantum of the claim was the amount of VAT overpaid in that period. This requirement also had the “sound purpose” of allowing HMRC to determine with certainty from the outset whether the whole or any part of the claim was out of time, or whether HMRC needed to go on and investigate it.
On 23 May, the European Commission published its Written Observations submitted under Article 15(3) of Regulation 1/2003 in the Appeals in the English Court of Appeal against the 3 first instance Judgments dealing with the claims against MasterCard and Visa for recovery of multilateral interchange fees (MIFs).
Article 15(3) provides that the Commission may, acting on its own initiative, submit written observations to national courts where the coherent application of Articles 101/102 so require. The Commission may also make oral observations with the permission of the court in question.
Given the significance of the UK Appeals in the context of the competition law analysis of MIFs, the Commission made Written Observations on the Article 101(1) issues (attached here) and the Article 101(3) issues (attached here). The Commission also made oral submissions, with the Court’s permission, on both topics at the hearing of the Appeals.
Ronit Kreisberger acted as Joint Lead Counsel with Nicholas Khan QC for the European Commission.
Ronit Kreisberger will be a panel member discussing “The Rise of Private Competition Law Enforcement: benefits, costs and future prospects” with a presentation on the achievements and challenges of private enforcement in the United Kingdom.
The conference aims to offer an overview of the journey taken by key areas of EU competition policy over the past decades, and to then focus on three topics of particular relevance to today’s application of EU competition law, namely the interactions between competition law and intellectual property, the sharing of public enforcement between the EU and national levels, and the development of private enforcement and associated challenges. The event will conclude with a lecture by Mario Siragusa, followed by a Q&A session revolving around his practice and experience.
The Global Competition Law Centre (GCLC) of the College of Europe aims at promoting cutting-edge research in competition law and economics. Since its inception in January 2004, the GCLC has gained credentials as a high level discussion forum for academics, practitioners, and enforcement officers in the competition field across the world.
The review will look into the circumstances leading up to a decision by the JCRA that ATF Fuels had abused a dominant market position. The Royal Court overturned this decision and this independent evaluation of the circumstances surrounding the case will investigate whether the JCRA discharged its legal duties appropriately, and whether there are any significant deficiencies in how Jersey competition law has operated. Terms of reference were published in a Ministerial Decision on 20 March 2018.
The initial phase of the review will involve a documentary review, followed by meetings with stakeholders to address points of clarification. It is anticipated that a draft report will be completed in the summer.
This has also been covered by the Bailiwick Express, see here.
Gulamhussein and Tariq v United Kingdom, application nos. 46538/11 and 3960/12
The recent decision of the European Court of Human Rights in Tariq v UK has significant implications for the use of closed material procedures in civil proceedings in which article 6 ECHR is engaged.
Mr Tariq was employed by the Home Office as an immigration officer. In 2006, his security clearance was revoked due to his “close association with individuals suspected of involvement in plans to mount terrorist attacks” and he was dismissed from his job. Mr Tariq attempted to challenge the decision in the Employment Tribunal but the Home Office refused to disclose the evidence supporting its revocation of his clearance. A special advocate was appointed to represent him in closed proceedings but Mr Tariq complained that he was not provided with a gist of the accusations contrary to the principle identified by the ECtHR in A and others v United Kingdom (2009) 49 EHRR 29. In Mr Tariq’s appeal in 2011, however, the Supreme Court held that the principle in A and others did not require a gist to be provided in every case in which article 6 ECHR was engaged.
In Tariq, the First Section agreed with the Supreme Court, noting that article 6 ECHR did not mean that it was “invariably essential for someone to know the “gist” of the case against them” (para 84). It also noted that, despite the lack of disclosure, the special advocate had been able to make submissions on Mr Tariq’s behalf and the resort to closed proceedings had not been arbitrary or manifestly unreasonable.
Eric Metcalfe acted for the human rights organisation JUSTICE as third-party intervener, led by John Howell QC.
The Supreme Court has considered the way in which the OFT conducted its ‘Early Resolution’ settlement negotiations with parties who were subject to its tobacco investigation. In overturning the decision of the Court of Appeal, the Supreme Court has held that a mistake made to the benefit of one party in a settlement negotiation is not required to be replicated to the benefit of other similarly situated parties. It so concluded on the basis of traditional principles of public law rationality, rejecting the opportunity to fashion any stand-alone principle relating to mistakes in public law.
Anneli Howard is one of the four “heavyweights from law and politics” being brought together on Thursday 7th June, for a contentious debate on Brexit and the future of the City’s talent. The debaters will argue the motion “The first casualty of Brexit will be City talent!”
Arguing FOR the motion:
Kenneth Clarke QC MP, Member of Parliament for Rushcliffe and former Lord Chancellor