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John Kwan

The importance of facts in English cartel damages litigation is evident from the rules governing claims for damages. The rules aim to balance the interests of claimants and defendants and incorporate safeguards against defendants being forced to defend unmeritorious claims. In cartel damages claims, however, claimants have deployed, in some cases successfully, tactics aimed at minimizing engagement with the underlying facts at all stages of the proceedings. This article examines these tactics and the extent to which recent judgments, such as the case of BritNed v ABB, have undermined the viability of such an approach.

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Ricky Versteeg and Alexandra Malina

A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.

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Edited by Sarah Long, Andrew North and Matthew O'Regan

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Lucy M.R. Chambers

This article seeks to draw attention to two areas of technological innovation relevant to the digital economy that the European Commission (‘Commission’) seems so far to have missed in its evaluation of the effectiveness of and reforms required to the Vertical Agreements Block Exemption Regulation (‘VBER’) and the associated Guidelines: fintech and blockchain technologies. In particular, this article seeks to demonstrate that vertical agreements can produce novel solutions in certain fintech markets, whilst also creating potential novel issues around exclusion, bundling and market power when used in the context of blockchain technologies. It is hoped that the results of the public consultation will bring some of these issues to the Commission's attention, because without taking these issues into consideration the Commission risks missing the opportunity to make ex ante changes to the VBER to ensure that it is ready for potential future innovations in the digital economy.

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Andrew Leitch

Claimants in private damages actions following on from European Commission cartel decisions are often faced with a choice of jurisdiction in which to pursue their claims. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. This may, in the English courts, give rise to various disputes as to the role of that non-addressee defendant in the cartel and, accordingly, whether a claim can in fact be sustained as against that defendant. The Court of Justice's recent judgment in Vantaan Kaupunki v Skanska Industrial Solutions potentially relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against it, by holding that it is entire undertakings that are liable for compensation in private damages actions. The Skanska judgment harmonizes the scope of liability under the public and private spheres of EU competition law enforcement and has potentially significant ramifications for competition litigation in the English courts.

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Patrick F. Todd

After Brexit, the United Kingdom is unlikely to continue pursuing integration with other Member States of the European Union, including through competition policy. As a result, the time is ripe to reconsider the role of the single market imperative in competition law, in particular in relation to vertical restraints where the goal of market integration plays a pivotal role. This article shows that recent European vertical restraints decisions and case law, in particular concerning territorial and online restraints, have been motivated in whole or in part by the single market imperative (SMI). It then examines how the law in the UK might follow a different path post-Brexit, taking the Ping case as an example. However, a similar change is not likely to be forthcoming in relation to the law governing pricing restraints, which are not obviously linked to the SMI and which have been the subject of much enforcement in the UK both before and during the UK's membership of the EU.

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Nicole Kar and Anna Mitchell

This article analyzes the Court of Appeal's judgment in the Balmoral Tanks information exchange case, upholding the Competition and Markets Authority's decision to fine Balmoral Tanks for the exchange of competitively sensitive information at a single meeting even though Balmoral Tanks was not part of a wider cartel. This judgment demonstrates the strict enforcement of competition law to information exchanges and the CMA's unusual approach adopting two separate infringement decisions – one relating to the main cartel and a separate decision relating to the information exchange – even though the participants to the cartel were also involved in the information exchange.

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Kyriakos Fountoukakos, Marcel Nuys, Juliana Penz and Peter Rowland

The 2019 decision by the German Federal Cartel Office (‘FCO’) against Facebook for its alleged abuse of a dominant position through its data collection practices is a landmark case that has received close attention beyond the German borders. It is the first case in which a European competition authority has found that terms of use that breach relevant principles under the data privacy framework can constitute abusive conduct in the form of an exploitative abuse under the competition rules. The case raises questions as to the relationship between the two legal frameworks. The FCO found that Facebook‘s terms of use and data collection practices constituted exploitative business terms directly harming Facebook users and also had detrimental effects on competition by reinforcing Facebook's market power in the social network market and advertising market. The case raises interesting questions on market definition and dominance in digital markets as well as on causality between dominance and abuse. In the bigger picture the Facebook case fits into the continuous efforts by the FCO to apply competition law in the digital sector in a dynamic manner. This article examines the FCO's reasoning in the Facebook Decision and outlines some challenges that companies in the digital sector might face in the aftermath of the decision.

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Alberta Ragno, Francesca Arduini and Nicole Rosenboom

The suggestion that there has been a widespread reduction in competition across many industries has been widely discussed in recent years by academics, policymakers and the media. But what does the empirical evidence actually say, and what are potential causes and policy options? This article provides a critical assessment of the ever-growing evidence base and draws conclusions on potential policy responses.