Our March Casenote European cartel fines in 2017 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).
In our November Casenote Is the government trying to protect HS2 from competition? David Starkie, Senior Associate, 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.
Our April Casenote Interest on antitrust damages – simple, compound, negative reviews and 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.
Cento Veljanovski’s article “The Law and Economics of Pass-on in Price Fixing Cases” provides a critical assessment of the reasoning in Sainsbury’s Supermarkets v. MasterCard which establishes the pass-on “defence” in English law. The Competition Appeal Tribunal (CAT) set out a two-part test which it erroneously distinguished from the economists’ notion of pass-on. It then went on the develop key elements of legal pass-on in price fixing cases. This article critically assesses the Tribunal’s judgment within a law and economics framework. It provides a rounded interpretation of pass-on as both a defence and “offence”, the different evidentiary standards and principles used, and the potential for inconsistency which could see defendants liable to claims for more than the overcharges.
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 CAT set out a legal test for pass-on which sought unconvincingly to distinguish it from the economists’ approach and the EU Damages Directive. The CAT further muddied its reasoning by rejecting pass-on as a “defence” while accepting that there was significant pass-on when awarding interest. This confused position is critically examined in our September Casenote Pass-on in the UK Mastercard litigation – Does legal and economic pass-on really differ?
Cento Veljanovski’s chapter Public Service Broadcasting – Ownership, funding and provision is now available in Privatising the BBC published by the Institute of Economic Affairs. There he critically assesses the case for public service broadcasting (PSB). It concludes that the claim that the British PSB system cannot be explained or justified as a response to market failure especially in today’s digital age. The chapter also takes a brief look at the continued justification for BBC’s licence fee.
Case’s annual review of the European Commissions cartel enforcement activities in 2015 European cartel fines in 2015 shows a considerable slowdown in the Commission’s enforcement activities. Aggregate fines imposed on firms in the four completed investigation were less than one-quarter the level of the previous year, and the lowest this decade. Other indicators show that the Commission has focused on smaller less harmful cartels.
Cartel Litigation, Damages and Fines collects together the best of Case’s Casenotes on cartel damages and the calculation and structure of fines imposed by the European Commission in one place. Casenotes have been popular as they provide short and timely commentaries on topics in the development of European and national laws.
Our March Casenote Volume effect damages in cartel cases exposes the way the new European Damages Directive (2014/104/EU) goes out of its way to reduce overcharge damages 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.
Our January Casenote European cartel fines in 2014 reviews the fines, leniency, and settlements imposed on cartels by the European Commission during 2014. Features of the Commission’s enforcement were the unusually high number of decision (10), the overwhelming use of whistleblowers and settlements (80%), and the prosecution of cartels with fewer firms and of shorter duration cartels.