‘Who’s Competing?’ is a Competition Law & EU Law Blog maintained by Angus MacCulloch of Lancaster University Law School created to support and inform my competition law research and teaching. Should a legal development strike me as interesting or important I’ll use this blog to explain what’s going on.
What is the impact of the ‘legal advice’ defence to the cartel offence in s 188B(3) of the 2002 Act? Could it make it easy to escape prosecution?
This week I delivered my UG competition law lecture on Cartels. It’s an occasion I always enjoy and gives me an opportunity to approach the topic afresh on an annual basis [the feedback I receive is always extremely helpful too]. This year it was the first time that I had the opportunity to talk through the new defences to the UK cartel offence since the controversial ‘dishonesty’ element was removed by the Enterprise and Regulatory Reform Act 2013. I have described one of the new defences inserted into the Enterprise Act 2002, the ‘legal advice’ defence in s 188B(3), as ‘bizarre’ in the new edition of our textbook, but in this post I want to set out what I perceive the problems to be. I want to develop these ideas into a longer piece, but for now I want to pose some of the questions I think need answering. My fear is that the ‘legal advice’ defence could become a get out of jail free card rendering the UK cartel a dead letter in all but the most extreme cases. Read More…
There have been questions surrounding the legality of videogame console ‘modchips’ for many years. We may be about to see some authoritative answers for the first time as a number of cases come before the EU Courts. Two cases, stemming from legal actions instigated by Nintendo in Italy (Case C-355/12) and Germany (Case C-458/13), have been referred to the Court of Justice of the EU for preliminary references. AG Sharpston delivered her Opinion in the first of those cases, Nintendo v PC Box Srl, on 19th September 2013. Read More…
I recently had the pleasure of presenting my thoughts on minimum alcohol pricing and EU law at a Matrix Chambers Seminar on Thursday 4 July. The line up was very impressive, featuring Aidan O’Neill QC, myself, Christopher Brown, and Joanna Buckley. The Seminar was chaired by Jessica Simor QC. It was a fascinating chance to discuss, with both legal professionals and representatives of the drinks industry, the issues surrounding the Scottish Government’s attempt to introduce minimum pricing and the legal response to it.
The announcement that Microsoft are to drop the controversial Xbox One DRM policies that would restrict the renting, sharing or selling-on of Xbox One games, which I blogged about a few days ago, has been met with joy by many gamers. For those gamers with an interest in the legal issues in videogames the announcement was tinged with a little disappointment. We now won’t have a chance to have lots of interesting interesting legal questions discussed in the terms of a popular mass market product.
As a long-time fan of videogames the announcement of new generation of consoles is always exciting, but this time round the announcements of the PlayStation 4 (PS4) and the Xbox One (XbOne) also had an interesting legal angle.
One of the most controversial elements of the new Xbox One console is its DRM and restrictions on the sharing of games purchased by users. In previous generations games were bought on optical media and once gamers had completed a game they were able to share it with friends or ‘trade-in’ the title at a retail store for cash or credit to purchase a new title. It looks like Microsoft are to restrict that practice with the Xbox One. Read More…
This post may not be competition law sensu stricto, but it does highlight interaction between wider state regulation and the market place. It also highlights the interrelation between the EU free movement provisions, in Arts 34-36 TFEU, and competition law. Where the activities of the State, acting as the State, impact on the market the free movement provision apply. Where the market is effected by non-state actors the competition law rules apply.
This post 1st appeared on the excellent EUtopia Law blog on 31 May 2013.
There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012  CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.
It was reported on the 5th April that Northern Circuit barristers had voted to reject the planned QASA scheme of ‘Quality Assurance’ for advocates. That in itself is interesting but my ‘competition-dar’ was triggered by a second vote the Northern Circuit also took. Quoting from the Law Society Gazette:
‘all 460 barristers who took part voted to refuse to accept instructions on the Western and Midlands circuits if the barristers on those circuits refused to join the scheme’.
To them this must have seem like an act of solidarity and direct/industrial action to support their colleagues in other circuits and bolster support for their campaign against the imposition of QASA. However …
To a competition lawyer that action looks rather different. Is this a groups of independent economically active undertakings (practicing self-employed barristers) getting together and agreeing a market sharing or collective boycott scheme; by refusing to take work from a defined geographical area to support another group of undertakings? An agreement not to compete in a market and leave work to another in return for some benefit from them (or alternately the threat of taking work unless they act in a proscribed fashion) is mutually beneficial market sharing (or a collective boycott).
That looks to me as if it would be an agreement between undertakings, or a decision of an association of undertakings, fulfilling the terms of Art 101 TFEU or, as if may not effect trade between EU Member States, section 2 of the Competition Act 1998. That would make it unlawful and automatically void, and could, if investigated by the OFT, result in hefty fines being imposed.
A more extreme view could even see this as falling under s 188 of the Enterprise Act 2002. If the actions of the Northern Circuit were seen as being individuals ‘dishonestly agreeing’ to ‘make or implement’ and agreement to ‘divide between A and B customers for the supply in the United Kingdom of a product or service’, they may be committing a criminal offence under ss 188. If convicted sentences of imprisonment up to 5 years are available.
I’m not suggesting that arrests or OFT dawn raids can be expected across northern chambers. But perhaps the bar might want to think more careful about how they conduct their campaign. They might not benefit from the traditional limitations on the application of the competition rules to collective action taken by trade unions.
There might not be a lot of competition law work on the Northern Circuit but someone might want to dust off a competition law textbook before they take their next move. I can suggest a good one …
An interesting conversation on Twitter this afternoon with Andrew Ward (@ARWardMadrid) prompted me to think about whether Manchester City FC might be considered to have received State Aid.
Our conversation was prompted by media reports that a number of European football clubs are being investigated by the EU Commission under the State Aid rules. Andrew’s interest was no doubt spurred by the inclusion of Real Madrid among those being investigated in relation to a parcel of land sold to them by local government. Could City’s relationship with Manchester City Council also lead to similar concerns?