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Surveillance and Civil Enforcement: Lessons from Balmoral Tanks

The CAT judgment in Balmoral Tanks [2017] 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…

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First UK Cartel Offence Aquittals

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.

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Repealing the Human Rights Act and the implications for UK Competition Law Enforcement

European Court of Human Rights

(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’).

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Premiership Rugby Union: if it looks like a duck and quacks like one …

By Bev Williamson

Premiership Rugby Limited (the PRL) is the company that commercialises premiership rugby union in England.  Its CEO, Mark McCafferty, has publicly rejected claims that Premiership operates as a cartel.  He relies on the fact that English rugby union utilises a system of promotion and relegation for determining which teams compete amongst the professional elite.  That being the case, the PRL, which is made up of representatives of each of the Premiership teams, together with the sport’s governing body, the Rugby Football Union (the RFU), may have found ways to create a cartel by stealth.

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Does this look like Universities colluding?

There is currently an ongoing dispute between academic staff and employers in the UK pre-92 Universities regarding the running of the USS pension scheme. I don’t want to get into the debate surrounding the reasons for the dispute, but an interesting competition law question has arisen regarding several UK Universities’ near identical responses to the fact the trade union that represents academic staff, the UCU, have announced a collective marking boycott as part of industrial action protesting at proposed changes to the pension scheme.

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The Price is Not Right: Italian Troubles with Road Haulage and Tobacco Pricing

Two recent judgments handed down by the CJEU show how difficult it can be for a Member State to involve itself in fixing minimum prices for products. Given the ongoing challenge to minimum alcohol pricing in Scotland it is interesting that in both these cases the Court ruled against the fixing of prices, but for very different reasons. Neither case is directly analogous to the Scots alcohol MUP referred to the Court in Case C-333/14, but there are perhaps lessons that can be learnt.

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What Makes a Cartel Newsworthy?

German Sausages

The mainstream UK news media has today been gleefully reporting the large fines imposed by the Bundeskartellamt in the German Sausage cartel. What struck me as interesting is why that cartel, above so many others has broken out of the financial press and made the headlines?

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Would a Cartel Offence Prosecution be a VHCC for Legal Aid?

Legal Aid

Prof Cosmo Graham, from the University of Leicester, just posed me that very interesting question.

The #OpCotton ruling yesterday stayed a large City fraud prosecution because the defendants could not find Counsel willing to represent them at the reduced VHCC (Very High Cost Cases) rates now offered in Legal Aid cases. Many, see for instance David Allen Green in the FT and Alan Wagner in the New Statesman, have pointed out this may mean that VHCC cases are effectively unprosecutable in the UK. I don’t know if a Cartel Offence prosecution would normally fall into this VHCC class.

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Thought of the Day: Stigma

I’m reading Daniel Sokol’s ‘Policing the Firm’ (2013) 89 Notre Dame LR 785, and I’m finding his discussion of the role of ‘stigma’ in cartel enforcement interesting.

It’s led me to think about compliance programmes. If firms want to be given credit for having an ‘effective’ compliance programme could the CMA/DG Comp insist that within that programme there are real sanctions in discipline, demotion, or dismissal for all officers or employees who were engaged in cartel activity?

Would that make a scheme a more effective part of creating the right corporate compliance culture?

Get Out of Jail Free: s 188B(3) of the Enterprise Act 2002

Get Out of Jail Free

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…

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