Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign claimants and/or defendants. In addition, an increasing number of “standalone” competition disputes between private parties are being brought in the courts, in which the claimant alleges that the defendant is infringing or has infringed competition law.
Private competition disputes raise different issues from follow-on claims. First, the claimant must prove that an infringement has been committed: there is no prior Office of Fair Trading or European Commission d [...]
In competition investigations, competition authorities receive substantial amounts of confidential business information, some of which will be commercially very sensitive. This information may be used in economic modelling or otherwise be used by the authority to identify anti-competitive conduct, effects or market structures. Some information may be exculpatory.
In a recent judgment (BMI Healthcare and others v. Competition Commission), the Competition Appeal Tribunal (“CAT”) had to assess the legality of arrangements put in place by the Competition Commission (“CC”) to establish, under restrictive access conditions, a data room in which parties’ advisers could review highly confi [...]
In 2007, the European Commission prohibited Ryanair’s attempted hostile bid to acquire rival Irish airline, Aer Lingus. It also refused to order Ryanair to divest its 29.8% stake in Aer Lingus, which it had built up during its aborted public bid. The General Court later upheld both the prohibition of the merger and the refusal to require divestment of the minority shareholding. Subsequently, the UK Office of Fair Trading investigated Ryanair’s minority shareholding in Aer Lingus; Ryanair’s challenges to the OFT’s jurisdiction were rejected by both the Competition Appeal Tribunal and the Court of Appeal. On 1 June the Supreme Court refused Ryanair leave to appeal, thus confirming the OFT’s ability to investigate the transaction, which it referred to the Competition Commission on 15 June. However, immediately thereafter, Ryanair launched a third hostile bid to acquire Aer Lingus, leading to further litigation before the CAT to challenge the Competition Commission’s jurisdiction.
This blog post examines the complex interaction of European Commission and national authority jurisdiction to examine different transactions involving the same parties, as well as the OFT’s reasons for referring Ryanair’s minority shareholding to the Competition Commission.
The Competition Appeal Tribunal has upheld the Competition Commission’s decision to require Stericycle to divest the entirety of Ecowaste Southwest following its prohibition of the completed merger. In dismissing Stericycle’s appeal, the Tribunal confirmed that the Commission is not obliged to identify of its own motion all possible remedies, but merely those that would clearly resolve the harm to competition caused by the merger. It also held that, in a completed merger, the purchaser takes the risk of being required to divest the entire business acquired by it, if this is necessary to restore effective competition.
A recent CC decision, Stericycle/Ecowaste Southwest, in which it prohibited a completed merger and required the divestment of the acquired business, is a salutary reminder to companies that do not wait for merger clearance before completing their transaction.