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 judgment by the General Court, on 12 June 2104, in the Case T-286/09 Intel (ECLI:EU:T:2014:547) has been one of the most controversial in recent years. It it part of the ongoing debate in EU competition law between those who seek to introduce a ‘more economic’ approach to Art 102 TFEU and break away from the formalism they perceive in the Court’s jurisprudence, and those who see the Court’s existing case law as well grounded and effective, and see the more to a ‘more economic’ approach as being a move towards unnecessary uncertainty.
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.
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.
Case C-67/13 P Groupement des Cartes Bancaires (CB) ECLI:EU:C:2014:2204
It’s not often that the Court of Justice gets to address one of the core concepts that underlie the antitrust prohibitions, but in Groupement des Cartes Bancaires the CJEU has taken its second opportunity to discuss the nature of Art 101 TFEU ‘object’ agreements in as many years. At the end of 2012, in Expedia, the Court discussed whether an ‘object’ agreement needed to have an ‘appreciable’ effect on competition. In Groupement des CB the CJEU gets to the heart of what it is that makes an agreement fall within the ‘object box’.