‘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.
It was big news that DG Comp officials, supported by their domestic counterparts, raided a number of sports broadcasters, including Fox in the UK, in relation to an investigation into a suspected cartel in relation to ‘media rights and related rights pertaining to various sports events’. As the investigation is ongoing there is relatively limited public information about the broadcasters who are targets of the investigation or the particular sports rights which are involved – of course there may be no cartel involved and the Commission may find nothing awry. However, as a great many dawn raids are triggered by a leniency application there may well be something afoot.
It is clearly too early to discuss the actuality, but it may be interesting to raise a, potentially heretical, question about one potential type of cartel in relation to sports media rights and ask some interesting questions.
The CAT judgment in Balmoral Tanks  CAT 23 is the latest in the Galvanized Steel Tanks Cartel – the UK cartel case that just keeps giving. It brought us the first UK based guilty plea under the original UK cartel offence, and then the first proper cartel offence trial which resulted in acquittals. This is the appeal against the CMAs ‘Information Exchange’ Decision that Balmoral had been party to an Art 101 TFEU concerted practice during a single meeting in July 2012. The appeal gives us a fascinating insight into the interaction between the criminal and civil investigations in this case, and the nature of unlawful information exchanges. Read More…
The Uber judgment from the UK ET, which was released, this afternoon is the first stage in what will no doubt become and important litigation for the future of the ‘gig economy’ in the UK. Employment lawyers will be the first to feel its impact (if my colleagues schedule of hastily arranged press interviews is anything to go by) but if this interpretation of the arrangement between Uber and its drivers stands in the UK it will also have an impact on competition law.
The first impressions of the judgment. on twitter at least, suggest that when a driver has the app switched on and they are accepting rides they are ‘workers’ for the purposes of UK employment law. This is controversial as Uber have always argued that the drivers are self-employed independent contractors and do not have a ‘worker’ relationship with the firm. If they are workers it will caused issues for Uber as workers have certain rights, for instance in relation to minimum wage and holiday pay, which Uber must ensure.
The finding of worker status for Uber drivers has an interesting positive for Uber outside the employment context. It protects Uber from a raft of potentially difficult competition law issues. The biggest ‘win’ for Uber in this regard is that the difficult question of how it is lawful for the Uber app to fix prices for ‘independent contractors’ is avoided. As the Uber drivers are now workers any agreement/arrangement they have with Uber on pricing takes place within an undertaking and competition law scrutiny under ART 101 TFEU, or its domestic equivalent, is no longer relevant.If Uber drivers were independent Uber would have had to make a difficult Art 101(3) argument that the common pricing structure, essentially a hub-and-spoke cartel of sorts, was a necessary part of its business model, and even with such a hard-core competition restriction the agreement worked to the benefit of consumers. It is not impossible to contemplate such an argument, but it would not have been any easy task.
Given that this is only an ET judgment there is still plenty to play for, as it is bound to go to appeal. The only certainty is that if the employment lawyers don’t get Uber, the competition lawyers will …
The next CLaSF workshop on ‘Competition Law and Enforcement Priorities’ will be held in association with UCD Sutherland School of Law, Dublin on Friday 16 September 2016.
The full programme for the Workshop can be seen on the CLaSF website. One of the highlights will be a keynote speech from Professor William E. Kovacic, George Washington University Law School.
The last few days have been whirlwind of bad news and questionable choices. Both major UK political parties are in disarray, and the only forceful political voice with a clear way forward comes from the SNP.
It will be of no surprise to anyone that I supported Remain. My support was with a heavy heart; not because I have less than full support for EU Membership, but because the campaign itself was woeful. There was a failure to make a positive case for EU Membership – no doubt because the Tory leaders of the Remain campaign had taken every opportunity to blame the EU for all the UK’s ills in the decade before the referendum.
We can see now that what Leave dubbed as ‘Project Fear’ is becoming ‘Unfortunate Reality’. The consequences of a political decision to leave the EU will be dwarfed by the consequences should we ever actually do so.
The only chink of light going forwards is that the UK has not yet decided to Leave the EU, never mind the more consequential step of notifying the European Council of its formal intention to do so, thereby triggering the withdrawal process under Art 50 TFEU. As there appears to be no ‘Plan A’ for the UK’s post Brexit engagement with the EU 27 I cannot see how there can be any desire for the UK Govt, who exercise such Prerogative powers, to rush towards triggering Art 50, even if they can come to a decision whose hand should be on the tiller.
I that time I hope there is the opportunity for Parliament to exercise its sovereignty and exercise control on the Govt to avoid any rash steps, driven by the internal division within the Conservative Party, that would put the UK’s trading relationship with the rest of the EU in jeopardy. It is perhaps difficult after the tumult of the last few days to hope that wise heads might prevail, but I still hold that hope.
As to competition law I am more optimistic. In substantive terms I don’t think that there would be desire, even from the most ardent Europhobe, to address the EU’s influence on competition law as one of the 1st pieces of UK reform; there are far more obvious areas where de-regulation might be more appealing. Given the CMAs position in relation to competition policy I also see limited internal push for the UK reforms; although there is perhaps reason to think that the formalistic line taken by the CJEU in relation to Art 102 TFEU, might not be followed so slavishly by the CMA and the UK Court’s if they were freed up from s 60 of the 1998 Act. There are larger questions surrounding the UK’s continued participation in the EU Merger Regulation and within the ECN should the UK leave the EU. While the substantive rules in mergers or antitrust may be very similar in in the UK and EU the loss of effective cooperation between the CMA, DG Comp, and the 27 NCAs will reduce the effectiveness of competition law enforcement across the UK and the EU 27. The loss of the UKs voice in competition policy debates within DG Comp and the ECN could lead towards a more interventionist stance in EU policy; which would , rather ironically, potentially impact on the the activity of significant UK firms in vital EU markets.
I hope the UK will continue to have a good trading and competition law enforcement relationship with the rest of the EU for a long time coming. I’m not ready to file away my copy of the Treaty quite yet.
For a video that explains the impact of Brexit on Competition Law from Oke Odudu, see:
Case C-345/14 Maxima Latvija (ECLI:EU:C:2015:784)
The Court of Justice of the EU has once again handed down a judgment which discusses ‘object’ agreements under Art 101(1) TFEU in Case C-345/14 Maxima Latvija. It adds a little clarity to some of the potential confusion that comes from different forms of wording in previous judgments such as Allianz Hungária and Cartes Bancaires. Read More…
The Court handed down its judgment in Case C-23/14 Post Danmark today. The judgment itself is not particularly surprising, in that it largely follows previous judgments of the Court in earlier Art 102 cases. The main feature of note is what the Court didn’t do: it again declined an opportunity to either follow or discredit the so-called ‘more economic approach’ to the abuse of a dominant position. Read More…
The news broke yesterday that the first fully contest trial in relation to the ‘old’ UK cartel offence results in both defendants being acquitted after the jury deliberated for “only a couple of hours”. As the ‘old’ cartel offence is no longer with us, being substantially amended in ERRA 2013, the wider impact of the acquittal might be perceived as being limited, but there are still lessons to be learned from what we know about the acquittal.
(By Scott Summers)
Since the latter part of 2014, the Conservative party has promised that if it won at the 2015 General Election, it would repeal the Human Rights Act 1998 (HRA) and enact a new British Bill of Rights (BBR). Now that the Conservatives have won the General Election by achieving a majority in the House of Commons, this plan could come to fruition. Whilst many have discussed the potential legal implications of repealing the HRA, there is one area of contention that has been completely overlooked; namely, the impact that repealing the HRA will have on competition law proceedings. This blog post seeks to address this issue by considering the implications that repealing the HRA may have on s.188 of the Enterprise Act 2002, (hereafter, the ‘UK criminal cartel offence’).