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#NotMyBrexit and Competition Law

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:

https://youtu.be/MXWth0e4whQ

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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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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?

Alcohol Pricing: Reflections on the Matrix Chambers Seminar

Matrix Chambers

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.

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Xbox 180: Microsoft no Longer Dream the DRM

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.

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Volume 9 Issue 1 of the Competition Law Review on Media Markets

Competition Law Review

The latest issue of the Competition Law Review has just been published. This issue centres on the theme of Media Markets and has an excellent collection of papers and an Editorial by Andrew Scott of the LSE.

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State Aid for City?

Etihad

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?

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CLaSF & University of Luxembourg Conference on ‘Competition and State Aid Litigation – The Effect of Procedures on Substance’

Competition Law Scholars Forum

Clasf logo 2-50

The Competition Law Scholars Forum, which is currently in its tenth year, has just announced a Call for Papers for its 1st International Conference, jointly hosted with the University of Luxembourg. The Conference will focus on competition law and State aid litigation.

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