‘The Incidence of Fines on Cartel Dynamic Pricing’

Friday 27th November sees the long-awaited return of our delightful former colleague Anna Rita Bennato (Oxford Brookes University) who will be presenting ‘The Incidence of Fines on Cartel Dynamic Pricing‘, which she has co-researched with Franco Mariuzzo (ECO and CCP). An abstract for her seminar can be found below.

Abstract

With Regulation 1/2003 the European Commission D-G for Competition has introduced administrative fines on corporation turnover to punish any breach of Article 101 and 102 of the Treaty. To confine obvious adverse effects of a too harsh punishment fines have been limited to a thirty per cent cap of the undertaking’s worldwide turnover (Guidelines 2006/C 210/02). However, the assessment of the gravity is made on a case-by-case basis for all types of infringement. As a general rule, fines are calculated as a proportion of the value of sales.

In this paper we study the distortion in pricing that stems from the application of fines on turnover in an environment where cartels choose their optimal pricing under uncertainty and business cycles. Our model shows how in a dynamic setting fines may resemble the effect of an ad-valorem taxation. The effect of fines on prices varies depending on the position on the cycle (expected demand growing or falling).

We test our model using 328 weekly data on the Joint Executive Committee (JEC) and the econometric methodology suggested by Borenstein and Shepard (1996). While JEC was a legal cartel, in a counterfactual exercise we simulate the effect of the cartel being detected and fined on turnover.

 

Anna’s presentation takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03. 

‘Countervailing Buyer Power in EU Competition Law’

Our second guest speaker today is Ignacio Herrera-Anchustegui (BECCLE and University of Bergen), a PhD researcher and expert in public procurement law. Ignacio will discussing ”Countervailing Buyer Power in EU Competition Law”. An abstract for his presentation can be found below.

Abstract

Countervailing buyer power (“CBP”) is arguably the sub-topic of buyer power that has received the most attention by the literature and the case law. Contrastingly, in the EU case law and Commission’s practice its importance when deciding cases has been rather limited. CBP acts as a competitive constraint mitigating or nullifying the market power effects by a supplying undertaking. It acts as a defence mechanism precluding an undertaking from significantly impeding competition or from it being dominant through the exercise of market power as it is not able to behave independently of its buyers. Because of its nature, it is assessed as part of the relevant buyer market power analysis.

This paper analyses CBP from a general perspective in the light of the case law, Commission practice and other authoritative sources. I aim at contributing to the current literature by defining what ought to be understood by CBP, analysing how the EU judiciary and Commission treat this competitive constrain as seller market power neutralizer, identifying its sources, clarifying whether EU competition law employs a generalized and coherent legal treatment to CBP or whether the approach varies depending on the case type, and discussing substantive aspects of it, such as its scope of application and the required extent of its effect. My approach, unlike most previous literature, is comprehensive in the sense that I do not limit my analysis to specific competition law areas nor to just case commentary, which is also a contribution to the current state of the law.

Ignacio’s presentation takes place from 13:45-14:30 in the Thomas Paine Study Centre, Room 0.1.

‘The relationship between the Commission’s leniency programme and the Directive on damages regarding breach of the competition rules (Directive 2014/104/EU)’

The Autumn edition of the CCP Seminar Series is well under way – check out our programme here. On Friday 30th October, we have the double pleasure of welcoming two outstanding PhD researchers from the University of Bergen, Ingrid Halvorsen Barlund and Ignacio Herrera-Anchustegui. Ingrid is our first presenter in this special double-session, and will be exploring ”The relationship between the Commission’s leniency programme and the Directive on damages regarding breach of the competition rules (Directive 2014/104/EU)”. An abstract for her paper can be found below.

Abstract

This abstract is based on a chapter of my PhD-project on ‘the Commission’s leniency programme within EU competition law – With emphasis on the regulatory framework, scope and effects of the Commission’s leniency programme as a public enforcement instrument of secret cartels, and the interplay with private enforcement through damages claims following infringements of the competition rules’ (working title). The chapter examines whether the Directive on Damages succeeds in balancing the public leniency enforcement of secret cartels with subsequent private damages claims arising from that same cartel activity from an optimal enforcement perspective. In this regard, the chapter looks into the situation of private enforcement of cartel activity through follow-on damages claims in the EU starting with Courage until now, going through the relevant case law and the Commission’s documentation leading up to the Directive. Concerning the Directive, the chapter focuses on the rules on disclosure and liability. Based on these analyses, the chapter questions whether there are other solutions to this interaction which possibly promotes a more efficient enforcement of Article 101 of the Treaty on the Functioning of the European Union (TFEU).

By leniency in EU competition law, this thesis refers to an enforcement tool that provides a cartel participant, who confesses and delivers evidence against their co-conspirators to the Commission, an immunity from or reduction of administrative fines, depending on the time and value of the evidence provided. The most recent leniency programme of the Commission is from 2006 and is called the ‘Commission Notice on Immunity from fines and reduction of fines in cartel cases’.

According to Article 1, the Directive seeks to ensure the right for anyone who has suffered harm caused by an infringement of the competition rules to claim full compensation, which is a codification of the right for compensation established by the Court’s case law, and the responsibility for each Member State to ensure this. Concomitantly, it emphasizes the importance of an effective public enforcement of cartels, referring inter alia to leniency programmes. The Directive thus seeks to establish a common standard in all Member States for the interaction between public and private enforcement of the competition rules at the EU level, stressing that to achieve an optimal enforcement of the competition rules this interaction has to be taken into consideration. To assure an effective enforcement of the competition rules, different – and to a certain degree “opposing” – interests of parties need to be protected when competition authorities publicly enforce competition laws and later on when private actors file claims for damages before the courts. By “opposing interests” this abstract specifically refers to the conflict that arises in a private follow-on damages suit resulting from a cartel infringement between a leniency recipient and the victims of that cartel activity seeking compensation. The risk of follow-on damages claims after having received lenient treatment from the competition authorities undermines the effectiveness of a leniency programme. To understand these conflicting mechanisms, the abstract will start by explaining the rationale of a leniency instrument.

The Commission’s leniency programme enforces Article 101 TFEU. Article 101 prohibits “all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market”. The Notice is only directed at “the most serious violations” of Article 101, which accordingly are “secret cartels”, cartels being defined as “agreements and/or concerted practices between two or more competitors aimed at coordinating their competitive behaviour on the market and/or influencing the relevant parameters of competition […]”. The secret nature of these infringements demands for non-traditional enforcement measures like leniency programmes. Because these infringements are very difficult to detect and because the cartel participants often go to great lengths in maintaining and keeping the cartel secret, the Commission’s leniency programme is based on a ‘carrot and stick’-strategy. Cartel participants are profit driven, meaning that their incentives are oriented towards what gives the highest economic gain. This economic orientation, in addition to the secrecy, explains the “carrot and stick”-strategy, where the balance between creating deterrence through tough sanctions on the one hand (the stick) and offering on the other hand a lucrative leniency regime (the carrot) is vital for the detection and prevention of cartel activity. The risk of follow-on damages claims threatens this interaction by undermining the ‘carrot’-effect as it diminishes the attractiveness of the leniency programme by adding to the ‘stick’-effect. The value of receiving immunity from fines from the competition authorities will decrease if the leniency applicant still risks damages claims in front of the courts. Despite the fact that the object of these damages is to compensate the victims of cartel activity, the damages will be perceived as adding to the fines escaped by the immunity recipient during the public enforcement. The controversy of juxtaposing damages with fines in the European enforcement tradition will be briefly commented on at the end of this abstract.

The impression of this thesis’ studies so far is that the Directive has tried to handle the conflict by outlining a compromise between the conflicting interest of an immunity recipient and the victims of cartel activity which arguably leads to both sides losing. This thesis therefore argues that the Directive’s solution might not be the way to go, and that it seemingly fails in seeking the objective of an optimal balance between public leniency enforcement and private follow-on damages enforcement. On the contrary, the outcome seems to be neither optimizing the public leniency enforcement nor the private follow-on damages enforcement of the competition rules. The abstract will outline the rules on disclosure and liability in the Directive as these are of particular interest and illustrating of why the Directive might not have found the solution.

Concerning disclosure of documents, the PhD-chapter analyses the case law on disclosure of evidence in the Commission’s file before the Directive’s entry into force, emphasizing what seems to have been different views of the Commission and the Court concerning the protection of the immunity recipient’s interests on the one hand versus protection of the victim of cartel activity’s interests on the other. The Court arguably was more in favour of protecting the latter and therefore promoted a pragmatic approach to disclosure of leniency information. However, Article 6 (6) of the Directive now states that “for the purpose of actions for damages, national courts cannot at any time order a party or a third party to disclose […] leniency statements”. Further, Article 7 (1) provides that “Member States shall ensure that evidence in the categories listed in Article 6 (6) which is obtained by a natural or legal person solely through access to the file of a competition authority is either deemed to be inadmissible in actions for damages or is otherwise protected under the applicable national rules”. According to Article 2 (16) of the Directive “statements” are defined as

an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a competition authority or a record thereof, describing the knowledge of that undertaking or natural person of a cartel and describing its role therein, which presentation was drawn up specifically for submission to the competition authority with a view to obtaining immunity or a reduction of fines under a leniency programme, not including pre-existing information“.

The prohibition does not regard “pre-existing information” which according to Article 2 (17) is defined as “evidence that exists irrespective of the proceedings of a competition authority, whether or not such information is in the file of a competition authority”. The fact that leniency statements are exempted from disclosure at all times is said to preserve the incentive for undertakings to provide information to the competition authorities as it hinders the leniency applicant from becoming an easy target for damages claims. This thesis agrees with the fact that revealing this type of information could hinder the effectiveness of a leniency programme. However, to assure both efficient leniency enforcement and efficient private enforcement of follow-on damages claims, maybe the solution is not to have detailed rules on disclosure. Instead, maybe focus should be on changing the rules on liability outlined by the Directive.

The immunity recipient is according to paragraph 11 of the Directive only jointly and severally liable for the losses the undertaking has caused to its own direct and indirect purchasers and/or providers. If the cartel has caused harm towards others in addition to the cartel’s providers or customers, the leniency recipient is only responsible for a relative part proportionate to the losses directly linked to the undertaking. Only when the claimants cannot obtain full compensation from the other participants, will the immunity recipient be responsible for the whole loss. The loss shall according to Article 3 of the Directive be fully recovered. Member States are obliged to follow the European principle of full compensation, including compensation of overcharges according to Article 12. According to Article 10 (3) limitation periods shall be at least five years, starting to run from the moment the infringement has ceased and the claimant “knows, or can reasonably be expected to know” of the behaviour, that this behaviour constituted an infringement of competition law which caused harm to the claimant, and the identity of the infringer, see Article 10 (2).

The point of this discussion is to highlight the fact that even if the liability of an immunity recipient is limited, this liability read together with the rules on quantification of harm and limitation periods implies that the immunity recipient still risk facing damages claims of an unknown number and size. This creates uncertainty, and has made this thesis question how attractive the compromise outlined in the Directive is not only for the immunity recipient, but also for the victims of cartel activity. The leniency applicant on the one hand still risk an unknown number and size of claims in front of national courts, whereas the victims of cartel activity on the other hand are denied access to evidence.

That is why this thesis has looked into an alternative solution to the one outlined in the Directive. This proposal, inspired by among others a comment by Paolo Buccirossi, Catarina Marväo and Giancarlo Spagnolo on ‘Leniency, damages and EU competition policy’, is to further limit the immunity recipient’s liability for damages, possibly abolish it, and give the victims of cartel activity full access to the Commission’s file. This would mean revealing the identity of the immunity recipient, which initially constitute a disincentive for the cartel participants to cooperate with the authorities. However, this disincentive will be outweighed by the reduced liability which will make the carrot juicier and the stick more painful if the cartel participant does not confess. With this solution, the cartel participants not cooperating with the competition authorities face a greater risk as jointly and severally liable with the disclosure of the leniency information. Full access to the Commission’s file, including leniency statements, will on the victims’ part facilitate the ability to obtain compensation.

This chapter of the PhD-thesis will also as already mentioned contrast the Directive to the US system, highlighting the issue of classifying damages more or less as a sanction in relation to the immunity recipient, juxtaposing damages with fines. This is questionable in the European enforcement tradition where damages are perceived as a compensatory measure. The classification problem therefore adds to the traditional role of damages in European private enforcement. The US does not follow the principle of full compensation. In the US, claimants are entitled to sue for three times the losses suffered. This is called ‘treble damages’, providing the damages with a punitive element. Concerning the interaction between leniency and follow-on damages, section 213 of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 ‘detrebles’ damages for the immunity recipient, in addition to providing an exemption from joint and several liability. This means that the immunity recipient is only liable for the actual damages attributable to its own conduct, and that rather than being liable for three times the damages caused by the entire unlawful cartel, the immunity recipient only risks single damages. Furthermore, the US has a different antitrust enforcement tradition than in Europe, relying more on private enforcement and on public criminal enforcement. The US system is therefore to a higher degree based on deterrence and punitive elements than what traditionally has been the case in Europe. Despite these fundamental differences, but also because of these differences, seeing as the US is considered to be the ‘pioneer’ in antitrust enforcement, this thesis finds it interesting to contrast the EU system with the US system with the purpose of suggesting changes and improvements de lege ferenda to the interaction between the public leniency enforcement of secret cartels and follow-on damages claims arising from that same cartel activity.

This chapter will conclude with a summary of its findings and a discussion of its most relevant aspects. Still a work in progress, any feedback is very much welcome.

 

Ingrid’s presentation takes place from 13:00-13:45 in the Thomas Paine Study Centre, Room 0.1. Please note this seminar is part of a double-session which includes an additional presentation by Ignacio Herrera-Anchustegui from 13:45-14:30. 

‘How should the new economic regulators for healthcare work with the competition authorities?’

With the UK General Election on the horizon, one issue on everyone’s lips is healthcare. It is very fitting, then, that our next CCP seminar sees the always enchanting Mary Guy (CCP & LAW) asking the all-important question: ‘How should the new economic regulators for healthcare work with the competition authorities?‘. Mary is a PhD Researcher and Associate Tutor at the UEA Law School, joining the CCP in 2011. Her research considers numerous competition and regulatory issues in the Dutch and English healthcare sectors. An abstract for her presentation can be found below.

It is well-established that the healthcare sector is subject to myriad forms of regulation, including professional self-regulation and quality regulation, with varying degrees of independence from government. However, recent healthcare reforms in both the Netherlands and England have also established new independent economic regulators for healthcare in the form of the Dutch Healthcare Authority (NZa) and Monitor, respectively.

Both countries have drawn – to a lesser or greater extent – on their experience of establishing economic regulators in other sectors (such as telecommunications) in creating the NZa and Monitor. It might therefore be inferred that there are similarities between the two countries. This extends to the focus of both regulators on patients – via, inter alia, the NZa’s duty to promote the “general consumer interest” under the Dutch Healthcare (Market Regulation) Act 2006 (Wmg) and Monitor’s stated commitment to “making the healthcare system work for patients”.

However, there is also a significant point of divergence: whereas the Authority for Consumers and Markets (ACM) and the NZa have had separate powers in the Netherlands, the Health and Social Care Act 2012 grants Monitor and the Competition and Markets Authority (CMA) concurrent powers (in line with the experience of other sector regulators) to apply provisions regarding competition law and market investigations.

In the Netherlands, the NZa’s ex ante powers can be seen in light of its “market-shaping” role. This has led to concerns that its powers can conflict with the ACM’s ex post interventions, particularly in view of the agencies’ respective significant market power (SMP) and abuse of dominance functions. In consequence calls for the NZa’s competition-related powers to be taken over by the ACM appear to have been heeded in a proposed transfer of SMP powers to the ACM. In England, although Monitor’s role is still in development, there have nevertheless been suggestions that its competition functions should be adopted by the CMA.

In view of these similar criticisms, this paper assesses whether a clear distinction between regulator and competition authority intervention is preferable to the UK practice of concurrent powers, particularly in view of the patient-centric focus of the regulators.

The seminar will take place on Friday 24th April from 13:00-14:00 in the Thomas Paine Study Centre (TPSC), Room 1.03.

Readers may also be interested in an article that Mary co-authored last year: André den Exter and Mary Guy, ‘Market Competition in Health Care Markets in the Netherlands: Some Lessons for England?‘ (2014) 22(2) Medical Law Review 255-273.

‘The TUC Principles: Competitive nightmare or realistic regulation of the market?’

The CCP seminar series continues on Friday 27th March with the marvellously charismatic Shaun Bradshaw (CCP & LAW) presenting his latest paper on a very novel topic, ‘The TUC Principles: Competitive nightmare or realistic regulation of the market?‘. Shaun is a PhD Researcher and Associate Tutor at the UEA Law School, having joined the CCP in October 2014. His research interests encompass numerous legal topics, including Labour Law, Competition Law, EU Law and Human Rights. An abstract for his paper can be viewed below.

Although clearly stated as being legally unenforceable, the Trade Union Congress’s Disputes Principles and Procedures have serious anti-competitive effects. Principles 2 and 3 severely restrict a TUC affiliate’s ability to compete. Affiliates cannot freely recruit and/or organise where another TUC affiliate is already present. This paper aims to analyse the TUC’s Dispute Principles from a Competition policy viewpoint. The paper will achieve this aim through the evaluation and analysis of the TUC’s Dispute Principles in light of competition policy and an exploration of the potential effects of full competition on collective bargaining. The paper will also use the UK law on the prohibition on individual detriment for action short of dismissal to provide an explanation for the TUC Principles.

The seminar will be held from 13:00-14:00 in the Thomas Paine Study Centre (TPSC), Room 1.03.

This is the final CCP seminar before the Easter break. We will return after Easter with more excellent seminars and further news of our Annual Conference in June.

‘Competition Law as Transnational Law’

The CCP seminar series continues on Friday 24th October with the marvellous Imelda Maher (University College Dublin) presenting her paper entitled ‘Competition Law as Transnational Law‘. Imelda is a prolific author in the fields of EU Law and Competition Policy and, in 2006, was inaugurated to the Sutherland Chair of European Law at UCD.  An abstract for her paper can be found below.

Abstract

The aim of this paper is to being to explore trends in competition law.  In this preliminary phase of the project, I am taking two ideas: transnational law and territoriality – and reflecting on them in the context of competition law.  I have chosen these two concepts as, in my mind at least, they are closely inter-related in this particular field.  The reason for this conceptual inter-linkage is a practical phenomenon which is that despite the undoubted globalisation of trade and the ongoing growth of multinational firms, competition law – the key legal mechanism to ensure that markets operate as freely as possible to ensure consumer and hence general welfare – is strictly territorial in nature.  National Competition Agencies – even the most powerful ones like the US Department of Justice and the EU Commission, have limited capacity to enforce their own laws extraterritorially even though so much of the market activity that in particular the Commission looks at is transnational in nature.  So, I suppose the title to some extent recognises that competition law is territoriality bounded in nature and yet strives to be or maybe perhaps should be (but is most unlikely to be) transnational in scope.

This preliminary paper is divided into four sections:  first, I will outline what I mean by transnational law.  Then I will explore the extent to which competition law is territoriality bounded (drawing on a recently published paper in Handl, Zekoll and Zumbansen, Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (2012)).  The third section is a first attempt to bring these two ideas together and reflect on how competition law moves beyond its territoriality before concluding.

The seminar will take place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03.

‘Private Meta-Regulation’

We’re delighted to welcome Colin Scott (University College Dublin) to the university today (Friday 24th October). Colin will be attending the UEA Law School Seminar Series, where he will presenting his paper on ‘Private Meta-Regulation‘ which he has co-authored with Fabrizio Cafaggi (SNA and EUI). An abstract for their paper can be found below and further information on the project (including policy briefs and case studies) can be found at the website for the Hague Institute for the Internationalization of Law.

Abstract

Meta-regulation, the steering or regulation of self-regulation, is increasingly recognised to be an important part of state capacity to harness private regulatory capacity and to govern indirectly. New research on transnational private regulation suggests that the potential of meta-regulation is not limited to the pursuit by the state of the public interest objectives which it defines. Rather we see the emergence of meta-regulatory regimes in which the state is not a significant actor, and within which the mechanisms for asserting meta-regulation are not the hierarchical capacity of the state to impose, but rather the social and market mechanisms associated with other modes of ordering. The reasons for the emergence of such private meta-regulation are explored. These include the need to respond to fragmented regulation, market and social pressures to demonstrate enhanced legitimacy and effectiveness of private regulation, and a wish to address the consequences of competition between regulatory regimes.

In this paper we analyse the modes through which meta-regulation is established, in some instances through membership organisations, using contractual methods, but in other instances without a basis in membership and contract. Related to this we look at how, in the absence of state involvement, meta-regulatory requirements are made binding and how this affects the variety of instruments deployed in particular sectors.  Thus the paper supplements the idea that state capacity is central to meta-regulation showing that there are social and competitive reasons underpinning the establishment of non-state meta-regulatory regimes and offering an analysis of the conditions underpinning the emergence of such regimes and their prospects for success.

The paper raises further questions for discussion. These include an exploration of the mechanisms through which legitimacy and effectiveness of such private meta-regulatory regimes is assured and whether some standard template might be developed to permit meta-regulators to demonstrate compliance with certain basic principles. It also raises the question whether governmental or inter-governmental bodies might have a role in steering of meta-regulation, as appears to have happened in the case of advertising in the EU (meta-meta-regulation).

 

The seminar will take place from 10:00-11:00 in Earlham Hall, Room 1.07.

Live comments from the CCP Summer Conference 2014 – Session 1

Session 1: Introduction – What is a Problem Market?

Stephen Davies  (CCP, UEA) opened with some personal thoughts on clarifying “problem markets”. While no textbook definition exists, we know that certain markets generate a stream of work for competition authorities, despite any obvious contravention of competition or antitrust law. Could it be that these markets are “too hot to handle”? Stephen’s personal list of problem markets includes retail energy, supermarkets and healthcare. In more academic terms, the issues can be characterised in terms of tacit collusion, behavioural consumers, manipulation of thin markets, divergent incentives and public policy objectives.

CCP Session 1 Steve

Amelia Fletcher (CCP, UEA) explored the “gap” between competition and consumer law via two themes: the “gap” between core competition and consumer law, and the issue of potentially costly and ineffective ex ante remedial intervention which may have unintended consequences. While ex post standard competition law may be considered to address issues arising on the consumer side (in accessing, assessing and acting on relevant information), it deals less well with supply-side issues such as existing structural issues and market manipulation. Sectoral regulators and the CMA (via market investigations) are increasingly involved in this “gap”, with a current focus on search and switching costs and facilitating entry and expansion. However, there may be a need for further considerations, such as whether problems have been misdiagnosed and remedies poorly designed.

CCP Session 1 Amelia

 

Ashleye Gunn (Which?) Started by challenging the (pre-financial crisis) accepted wisdom that “markets always work” by calling for qualification of buzzwords such as “choice” (needs to be meaningful), “innovation” (needs to benefit consumers) and “information” (there is a need for clear and comparable pricing information). Which? uses two tests identify problem markets, and specifically the source and extent of ‘problems’ for consumers: whether the market is achieving its aims, and whether it is working for consumers as well as business. In particular, confusing pricing has been identified as central to problems because it can lead to consumers not driving competition. Which? campaigns therefore incorporate a range of different issues from ‘everyday frustrations’ to significant structural and cultural issues in major sectors. These campaigns involve not only traditional policy lobbying but also direct intervention in markets where consumers are at a disadvantage.

CCP Session 1 Ashleye

Catherine Waddams (CCP, UEA) introduced CCP’s collaboration with Which? on The Big Switch (TBS) by clarifying aspects of a well-functioning market and how energy may differ from this, for example by possible softening of some rivalry between companies. The study used probit analysis to identify the effects of multiple factors on switching decisions. Key results were that seeing two offers rather than one reduced the likelihood of switching by five percentage points, and that confidence was an important factor in determining activity.

CCP Session 1 Catherine

‘Reconsidering the role of the public interest in UK merger control’

The CCP’s Autumn Seminar Series continues on Friday 11th October with David Reader (CCP and UEA Law School) presenting his research on ‘Reconsidering the role of the public interest in UK merger control‘. An abstract for his seminar can be found below.

Abstract

The United Kingdom’s merger control regime can be considered one of the most robust in existence. Under the Enterprise Act 2002, mergers shall be assessed by at least one of two independent competition authorities who each apply the same competition-based criteria to every transaction. There remains, however, a power for political intervention by the Secretary of State in mergers raising certain specified public interest concerns. In these cases, the Secretary of State may permit an anticompetitive merger or block a pro-competitive one where they consider that it is in the public interest to do so. Moreover, the Secretary of State retains a residual power to add to the list of specified public interest criteria, subject to Parliamentary approval.

In light of several controversial transactions – including Lloyds/HBOS, Cadbury/Kraft and NewsCorp/BSkyB – this presentation seeks to reconsider the way in which the public interest provisions under the Enterprise Act may be used to complement the UK’s merger policy. In particular, it will consider the legitimacy of Lord Heseltine’s calls for the Government to ‘show a readiness’ to use the public interest provisions to protect vital national interests and to deter unwanted foreign investment. The presentation will also seek to examine the potential for the public interest exceptions to be added to in the future and whether a decision-making role for the new Competition and Markets Authority could be on the agenda.

Related reading: Bruce Lyons, ‘Beware of Siren Advice for Political Control of Foreign Mergers‘ (2012) Competition Policy Blog.

Dr Peter Whelan publishes article on cartel criminalisation and due process in the Northern Ireland Legal Quarterly

Dr Peter Whelan (CCP and UEA Law School) has had his article, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’, published in the latest edition of Northern Ireland Legal Quarterly. An abstract of his article can be found below.

Abstract

There is increasing debate within the EU concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights. Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

Peter Whelan, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’ (2013) 64(2) Northern Ireland Legal Quarterly 143.