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Uber Judgment – You are workers, but we are not a cartel …

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 …

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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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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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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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Local Bans on Cheap Booze

Local Bans on Cheap Booze

I’m giving a presentation at the CLaSF Workshop on Thursday 1 May on the competition aspects of the Scottish Minimum Alcohol Pricing case, and this story caught my eye. It seems that are several ways in which steps to regulate alcohol consumption, and also public disorder, through the pricing mechanism cut across competition law. I think I’ll have to spend some more time on this and try and set out my ideas more fully.

Minimum Alcohol Pricing Paper on SSRN

Malt Whisky

My latest Working Paper, entitled ‘Scottish Minimum Alcohol Pricing & EU Law’, which I will present at Queen’s University Belfast School of Law on the 3rd March 2014, has been published on SSRN.

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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…

Alcohol Pricing, EU Law and the Court of Session

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 [2013] 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.

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