Emeritus Professor Richard Whish, QC (Hon) Annual Competition Law Conference of the Norwegian Competition Authority 31 May 2017

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1 Emeritus Professor, QC (Hon) Annual Competition Law Conference of the

2 STRUCTURE OF PRESENTATION CARTELS AND HORIZONTAL AGREEMENTS VERTICAL AGREEMENTS ABUSE OF DOMINANCE DAMAGES SOME REFLECTIONS ON BREXIT King's College London 2

3 CARTELS AND HORIZONTAL AGREEMENTS FEWER PENDING INVESTIGATIONS THAN USUAL? SEE PAGE 2 OF RECENT DEVELOPMENTS FEWER LENIENCY APPLICATIONS DUE TO GREATER RISK? MULTIPLE INVESTIGATION DAMAGES CLAIMS CRIMINAL SANCTIONS NOTE THE COMMISSION S ANONYMOUS WHISTLEBLOWER TOOL, 16 MARCH 2017 King's College London 3

4 CARTELS AND HORIZONTAL AGREEMENTS ATYPICAL CARTELS PRICE SIGNALLING CONTAINER LINER SHIPPING, PAGE 18 OF RECENT DEVELOPMENTS HUB AND SPOKE AGREEMENTS ALGORITHMIC COLLUSION Trod Ltd: posters and frames, PAGE 22 OF RECENT DEVELOPMENTS NOTE: PARALLEL US INVESTIGATION, US V TOPKINS NOTE: COMPANY DIRECTOR DISQUALIFICATION UNDER UK ENTERPRISE ACT 2002 King's College London 4

5 CARTELS AND HORIZONTAL AGREEMENTS ATYPICAL CARTELS WHEN IS JOINT BIDDING A RESTRICTION OF COMPETITION BY OBJECT? Case E-3/16 Ski Taxi SA v Konkurransetilsynet, judgment of 22 December 2016 JUDGMENT FROM THE SUPREME COURT OF NORWAY SOON King's College London 5

6 CARTELS AND HORIZONTAL AGREEMENTS PAY-FOR-DELAY AGREEMENTS LUNDBECK: PAGE 7 OF RECENT DEVELOPMENTS PAROXETINE: PAGE 20 OF RECENT DEVELOPMENTS SERVIER: ORAL HEARINGS AT THE END OF JUNE 2017 COMMISSION S 7 TH REPORT ON THE MONITORING OF PATENT SETTLEMENTS, DECEMBER 2016 King's College London 6

7 VERTICAL AGREEMENTS SEE THE COMMISSION S SECTOR REVIEW OF ONLINE E-COMMERCE, 10 MAY 2017 NOTE THE COMMITMENTS GIVEN BY AMAZON/E-BOOKS IN RELATION TO PARITY AGREEMENTS, 4 MAY 2017 Three investigations commenced by the Commission on 2 February 2017 tour operators videogame makers (geo-blocking) sellers of consumer electronics (rpm) King's College London 7

8 VERTICAL AGREEMENTS NOTE ALSO: SEVERAL INVESTIGATIONS BY THE CMA IN THE UK INTO ONLINE RESTRICTIONS, IN PARTICULAR AGAINST DISCOUNTING ONLINE SALES, PAGES OF RECENT DEVELOPMENTS ULTRA FINISHING ITW LTD NATIONAL LIGHTING King's College London 8

9 ABUSE OF DOMINANCE Altsoff Recycling Austria, PAGE 15 OF RECENT DEVELOPMENTS ABUSE OF DOMINANCE SETTLEMENT DECISION (NOT A COMMITMENTS DECISION) RECUCTION IN FINE OF 30% DIVESTITURE OF ARA S INTEREST IN THE RELEVANT INFRASTRUCTURE NOTE PARAGRAPH 19 OF THE DECISION ON THE TERMS OF THE SETTLEMENT King's College London 9

10 ABUSE OF DOMINANCE NOTE THE COMMISSION S INITIATION OF PROCEEDINGS AGAINST ASPEN PHARMA FOR EXCESSIVE PRICING, PAGE 15 OF RECENT DEVELOPMENTS AND THE CMA S DECISION AGAINST PFIZER AND FLYNN, PAGE 23 OF RECENT DEVELOPMENTS AND THE INITIATION OF PROCEEDINGS AGAINST ACTAVIS, PAGE 20 OF RECENT DEVELOPMENTS King's College London 10

11 DAMAGES THE SAGA OF MULTILATERAL INTERCHANGE FEES CONTINUES Case 1241/5/7/15 Sainsbury s Supermarkets Ltd v MasterCard 27 JULY 2016, PAGE 25 OF RECENT DEVELOPMENTS DAMAGES AWARDED TO SAINSBURY S FOR ILLEGAL MIFS King's College London 11

12 DAMAGES BUT COMPARE ASDA STORES LTD V MASTERCARD INC., 30 JANUARY 2017, PAGE 31 OF RECENT DEVELOPMENTS JUDGMENT REJECTING THE CLAIMS OF 10 RETAILERS THAT THEY HAD BEEN HARMED BY UNLAWFUL MULTILATERAL INTERCHANGE FEES THESE TWO CASES CONCERN THE SAME MIFS! NOTE THE COLLECTIVE OPT-OUT ACTION, PAGE 31 OF RECENT DEVELOPMENTS King's College London 12

13 SOME REFLECTIONS ON BREXIT ARTICLE 50 WAS TRIGGERED ON 29 MARCH 2017: BREXIT DAY 29 MARCH 2019 THE BREXIT COMPETITION LAW WORKING GROUP HAS BEEN FORMULATING PROPOSALS: SEE THREE BROAD HEADINGS: SUBSTANTIVE LAW TRANSITIONAL MATTERS COOPERATION MECHANISMS King's College London 13

14 SOME REFLECTIONS ON BREXIT SUBSTANTIVE LAW THE CHAPTER I AND CHAPTER II PROHIBITIONS IN THE COMPETITION ACT 1998 ARE BROADLY THE SAME AS ARTICLES 101 AND 102 AND SHOULD REMAIN UNCHANGED SHOULD SECTION 60 OF THE ACT REMAIN, WHICH REQUIRES UK COURTS TO ACHIEVE CONSISTENCY WITH EU JURISPRUDENCE? SHOULD WE RETAIN BLOCK EXEMPTIONS? MERGER CONTROL/PUBLIC INTEREST King's College London 14

15 SOME REFLECTIONS ON BREXIT TRANSITIONAL MATTERS HOW TO HANDLE MERGERS NOTIFIED PRE- BREXIT TURNOVER THRESHOLDS EXCLUSION OF UK IMPACT FOR INVESTIGATIONS THAT GO BEYOND BREXIT? ENFORCEABILITY OF REMEDIES POST-BREXIT? ARTICLE 4 AND 9 REFERRAL PROCEDURES PART OF THE SOLUTION? WHAT ABOUT CARTEL INVESTIGATIONS? King's College London 15

16 SOME REFLECTIONS ON BREXIT COOPERATION MECHANISMS UK LEAVES THE ECN WHAT COOPERATION MECHANISMS WILL THERE BE WITH THE EU? NOTE THE ECA, AS OPPOSED TO THE ECN: COULD THE UK PARTICIPATE IN THE ECA? SHOULD THE UK PASS THROUGH THE EEA ON THE WAY OUT? GIVING THE EFTA COURT A ROLE? INCREASED IMPORTANCE OF UK IN THE ICN, OECD King's College London 16

17 THANK YOU FOR YOUR ATTENTION! King's College London 17