The UK courts and EU law post-Brexit

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

Comparative analysis between the English, Dutch and French approaches to passing-on in competition cases

Several legal topics regarding cartel damages litigation have drawn special attention over the last few years, including the passing-on defence. ‘Passing-on’ in competition cases is where overcharges caused by a cartel, which affect the customers of the cartelists (direct purchasers), are passed-on by these purchasers to buyers further down the supply chain (indirect purchasers). Cartel members regularly invoke this defence as a (partial) shield against a claim for damages. The EU Damages Directive contains two important presumptions in connection to passed-on damages. This article undertakes a comparative analysis of how the courts in the Netherlands, France and England and Wales apply these presumptions in practice in their case law.

Understanding competition in digital markets: new perspectives on old practices

Around the world, competition agencies and academics alike have raised concerns that the existing suite of policy tools and economic theory fail to capture all of the harms that can arise in digital markets. At the same time, other academics and practitioners consider that competition policy and industrial organization is unable to account for many of the benefits that online platforms and digital ecosystems can bring. As a range of new interventions – ranging from strengthened ex-post enforcement tools to new ex-ante regulations – are being proposed, we ask which view is right? Are the business practices observed in digital markets and targeted by these reforms so obviously harmful that they are deserving of a return to form-based prohibitions in place of effects-based analysis? Or does this represent an unhelpful regression, based on a misunderstanding of how these new types of markets function?

A critical assessment of the recent proposals and reports on the regulation of digital mergers

This article examines the recent proposals and reports on the regulation of digital mergers in the European Union, United Kingdom, United States and other jurisdictions, with a particular focus on the proposals for presumptions against mergers. It argues that any intervention in digital mergers needs to calibrate a balance between preventing excessive levels of market concentration and promoting innovation and that any departure from existing laws should be justified. Against this background, this article concludes that the recent arguments for lowering the threshold for blocking digital mergers undermines the risk of chilling innovation and losing significant efficiencies, and does not rely on concrete evidence and sound economic theories.

Crystal ball gazing: where next for UK competition law and policy post-Brexit?

The Trade and Cooperation Agreement broadly sets out the nature of the relationship contemplated between UK and EU competition law and policy following Brexit. The question is whether the UK will capitalize on its newfound discretion to deviate its competition policy from the EU in the future. This article considers some of the potential new directions that might be taken within the UK's competition law landscape, specifically in relation to merger control, antitrust and subsidy control. It explores some of the problems and opportunities created in the wake of Brexit, as well as the legal and practical ramifications of future divergences between UK and EU competition policy. Furthermore, it considers how the Competition and Markets Authority may fare in enforcing new policy, as well as its potential interactions with regimes both within and outside the EU.

Judicial review and the protection of privacy rights in dawn raids

Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.

Competition law post-Brexit

The end of the Transition Period following the UK's exit from the European Union and COVID-19 are major catalysts for the Competition and Markets Authority's future work, including in the fields of merger control and antitrust enforcement. This article considers how these, and other events, will influence the CMA's work, including the establishment of the Digital Markets Unit and the Office for the Internal Market, enforcement priorities and international cooperation.

‘No magic number’ means ‘no magic number’: will the EU Court turn the tide on four-to-three mobile mergers in Europe?

This article explores the impact of the General Court's judgment in CK Telecoms and the Commission decision in T-Mobile NL/Tele2 on the assessment of four-to-three mobile mergers. The unconditional clearance in the Dutch case energized some telecoms executives, but the Commission stressed that it was largely due to the very specific circumstances of the case. Then, in CK Telecoms, the General Court delivered a blow to the framework developed by the Commission to assess mobile mergers. The Court's interpretation of the concepts of ‘important competitive force’ and ‘closeness of competition’ raises the threshold for the Commission to challenge mergers and implements the principle that there is no ‘magic number’ of mobile network operators. Though some commentators compared CK Telecoms to the Airtours case, CK Telecoms has not provoked similar soul-searching at DG Competition. Some senior Commission officials criticized the judgment and indicated that the Commission will continue applying the same framework. On appeal, the Commission has challenged all key aspects of the judgment. The Dutch case, however, confirms that the Commission may entertain unconditional clearance in some four-to-three mobile mergers and, while CK Telecoms might not bring an overhaul of the current framework, we can expect some refinements.

Data: how it affects competitive dynamics, how to value it, and whether to provide third-party access to it

There has been a data revolution: the combination of sensors, processing power and mobile communications means that there is more of it, and it is having a greater impact on our lives than ever before. Across the world, there have recently been many new initiatives and legislative proposals for opening up access to some of that data. This is often driven by two different motivations: the desire to create new positive outcomes with existing resources, and the desire to correct negative impacts on competition in markets. To regulate data access properly, it is necessary to understand what makes data different and what its value is. If data access is going to be mandated, how can one value the data that a business holds, and set fair and reasonable charges for access to it? Economic tools that analyse the cost of creating the data, and the benefits derived from it, provide critical insight into this question.