Casenotes

Short incisive discussions of topical issues raised
by recent developments in competition law,
litigation and regulation.

The ‘magic of zero’ interchange fees

1st September, 2018

This Casenote takes a critical look at the English Court of Appeal decision on three conflicting judgments on whether Mastercard’s and Visa’s default multilateral interchange fees (MIFs) infringed Article 101TFEU. The Court of Appeal rejected much of the contradictory reasoning of the High Court and Competition Appeal Tribunal (CAT) to effectively reinstated the European Commission’s MasterCard Decision that the default MIF was illegal.  The Court of Appeal was highly critical of the lowers court’s reasoning but leaves open the question of how merchants can negotiate interchange fees.

European cartel fines in 2017

5th March, 2018

Our March Casenote reviews the European Commission’s cartel enforcement activity in 2017. This saw reduced activity by the European Commission, and an almost exclusive focus on the European automotive sector. The Commission also fined a buyers’ cartel (Car battery recycling) – which is fairly rare – and dawn raided another (Ethylene).

Is the government trying to protect HS2 from competition?

28th November, 2017

In our November Casenote David Starkie highlights the intention of the Government to merge the West Coast Main Line rail franchise with HS2. He suggests that the object might be to suppress a competitive challenge to future services operating on this controversial stretch of infrastructure. To support his argument he finds a ‘smoking gun’: a report by HS2 Ltd’s consultants highlighting the threat from other rail services and that Government policy on franchising would greatly influence HS2′s competitive environment.

European cartel fines in 2016

June 2017

There was a considerable slowdown in the European Commission’s cartel enforcement activities in 2016. For the second year in a row the number of cartel decisions, firms prosecuted and aggregate fines have fallen; the last to the lowest level this decade and to less than a quarter of the total fines levied in 2015.

Interest on antitrust damages

27th April, 2017

Our April Casenote critically assesses the award of interest on antitrust damages by the courts in England and Wales. It reviews the cases and shows the impact of different interest rates and methods of calculation on the total compensation of claimants.

Pass-on in the UK MasterCard litigation

5th October, 2016

In Sainsbury’s v MasterCard the UK Competition Appeal Tribunal (CAT) confirmed for the first time pass-on as a key element in the award of damages in competition law. The confused reasoning in the CAT’s decision is critically examined in our September Casenote

European cartel fines in 2015

29th January, 2016

Case’s annual review of the European Commission’s cartel enforcement activities shows a shows a considerable slowdown in the Commission’s enforcement activities and a focus on smaller less harmful cartels.

Volume effect damages in cartel cases

12th March, 2015

Our March Casenote exposes the way the new European Damages Directive (2014/104/EU) goes out of its way to avoid the possibility that pass-on may unjustly enrich claimants, while ignoring the lost volume damages that accompany pass-on. As a result purchasers will be under-compensated. The Casenote proposes that defendants who raise the pass-on defence be liable for lost volume damages, and that they provide estimates of the lost sales implicit in their estimates of pass-on.

Irish doctors have fees gag lifted

September 2014

In June the Competition Authority settled its case with the Irish Medical Organisation (IMO). Since 2006 the Competition Authority has prohibited the IMO and the Minister of Health from discussing fees paid to GPs to provide free general medical services to public patients. This emasculated the IMO as a registered trade union in representing its members, and left the Minister as the sole purchaser of GP services for public patients with the power to unilaterally set fees. This application of the Irish Competition Act 2002 was seen as inimical to good labour relations and to the smooth running of the public health scheme. As a reaction to the Irish Government’s third successive reduction in fees, the IMO “suggested” to its members that they refuse to supply services which it claimed had hitherto been provided pro bono.

Efficient cartels

19th May, 2014

Our May Casenote Efficient cartel – Oxymoron or economic insight? argues that the war against cartels may be overlooking their beneficial effects in some industries. Industries with empty cores, environmental problems, where coordination reduces marginal costs and even export cartels may increase efficiency and challenge the claim that cartels that increase prices and reduce output are anti-competitive.

Price wars and cartel damages

28th August, 2013

Our August Casenote Price wars and cartel damages looks at the different reasons for price wars and how they affect the quantification of overcharges, the but for price, and the duration of a cartel.  To illustrate the analysis the European Commission’s amino acid (lysine) decision and several empirical studies of overcharges for the German cement cartel are used.

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