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What to think about before bringing a private competition action—checklist Is there an actionable claim? Note: private competition actions remain largely regulated by national law and procedural and substantive rules across the EU may vary significantly, therefore assessments in individual jurisdictions will need to be made when planning competition litigation. Possible causes of action • Consider if there is an infringement of UK competition law (or EU competition law prior to the end of the Brexit transition period). ◦ Consider whether the loss suffered can be attributed to an agreement or concerted action between undertakings, especially competing undertakings (see further, The prohibition on restrictive agreements). ◦ Consider whether the loss might have been caused by an entity that is arguably dominant typically with a large share of a relevant market, and could be said to have abused its dominance contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if prior to the end of the Brexit transition period) (see further, The prohibition on abuse of dominance)....
Key IP considerations in R&D agreements—checklist Using this Checklist This Checklist focuses on the IP aspects of R&D agreements and identifies the key terms typically included in an R&D agreement. This document can be used as a checklist of issues to consider when drafting, reviewing or negotiating such agreements. Key competition law considerations are also considered. However, an individual assessment will need to be conducted as to whether an agreement’s IP provisions are compatible with competition law, particularly the prohibitions against anti-competitive agreements under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and Chapter I of the Competition Act 1998 (CA 1998). On 1 June 2023, the European Commission adopted the EU Research & Developments Block Exemption, Commission Regulation (EU) 2023/1066 (EU R&D BER) and the accompanying Horizontal Guidelines. The EU R&D BER entered into force on 1 July 2023 and will expire on 30 June 2035. On 5 December 2022, the UK government laid before Parliament the Competition Act 1998 (Research and Development...
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Separation of powers—legislative, executive and judiciary Source of the doctrine of the separation of powers The origins of the doctrine of the separation of powers are often traced to John Locke’s Second Treatise of Government (1689), in which he identified the 'executive' and 'legislative' powers as needing to be separate. ‘…it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make…’ Its classic exposition is however that of the Baron de Montesquieu, writing about the constitution of England in L’Esprit des Lois (1748), in which he identified judicial power as the third branch of government. ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate...
Market definition and analysis in EU and UK competition law Introduction Market definition is the traditional starting point for most analysis under competition law. It provides an objective conceptual framework for systematically identifying competitors (or potential competitors) that may constrain a company’s behaviour. The European Commission (Commission) refers to these as ‘effective and immediate competitive constraints’. Competition authorities use market definition in several contexts, especially for merger control, the assessment of anti-competitive agreements, and abuse of dominance cases. • Merger control—competition authorities assess the effects of the proposed merger. To that end, the Commission and the Competition and Markets Authority (CMA) identify the markets in which the merging parties are active, and the competitive constraint that the merged entity would face in such markets • Anti-competitive agreements—when competition authorities suspect an anti-competitive agreement between suppliers or purchasers, they usually assess whether the agreement had anti-competitive effects. This requires defining the markets that may have been affected by the agreement • Abuse of dominance cases—competition authorities assess whether the investigated...
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Competition law compliance—warning signs for staff Behaviour red flags are situations which should cause you to ask questions. Although difficult to detect, there are many circumstances that signal the existence of anti-competitive behaviour. This awareness tool features possible competition law warning signs, flags, characteristics or behaviours to watch out for. Even just one of these red flags may be a sign of anti-competitive behaviour. 1 Cartel behaviour Any attempt to fix prices; Any attempt to engage in bid-rigging; Any attempt to limit production; Any attempt to share customers or markets; Any attempt to standardise products (while product standardisation can be pro-competitive, it can in some instances also be classified as anti-competitive if, for example, the standards are only available to certain competitors); Attendance of trade association meetings (while attending meetings of trade or industry associations can be entirely legal and serve pro-competitive purposes, they can also provide opportunities for competitors to exchange competitively-sensitive information or
Competition law compliance—post-training assessment answers Question Correct answer 1. Competition law protects business and consumers from anti-competitive behaviour, and safeguards effective competition True 2. What are the consequences of breaching competition law? Heavy fines, prison sentences, director disqualifications, and reputational damage. 3. What are the three main contexts in which competition law may become an issue for commercial organisations? Cartels, abuse of dominant position and other anti-competitive agreements 4. Would an organisation that has substantial market power over a period of time be classified as being in a dominant
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In the context of an English law agreement what is a ‘preferred supplier’? Might there be any regulatory issues to consider in connection with the appointment of a ‘preferred supplier’? What is the meaning of ‘preferred supplier’? The term ‘preferred supplier’ is often used in business, however it has no definitive or clear meaning in English law. Differing views of the meaning of the term are possible. For example the phrase might be intended to mean that the supplier would fall into one or more of the following (often mutually conflicting) categories or have some other meaning: • it may not be offered any work but is on an ‘approved’ list and so does not have to repeat certain retendering exercises • if offered work, it will be offered terms of trade that are no less favourable than those offered to any other supplier • it will always be offered certain work unless a competing supplier offers better terms • it will be offered a minimum...
What did the government say in its full response to the Online Harms consultation? Background to the response The Department for Digital, Culture, Media and Sport (DCMS) published the Online Harms White Paper in April 2019. It proposed a statutory duty of care to deal with online harms, ranging from illegal activity and content to behaviours which are harmful but not necessarily illegal. Consultation on the White Paper closed on 1 July 2019. In February 2020, the DCMS published its initial response to the consultation and in December 2020 it published the full response, providing detail of the Online Harms regime. In keeping with the government’s ambition, as set out in the Online Harms White Paper, to make the UK the safest place in the world to go online, the response set out a framework of legislation establishing a duty of care on companies to improve the safety of their users online. This duty is to be overseen and enforced by Ofcom. The regulatory framework will...
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A round-up of EU competition law developments, including (amongst other things) an AG proposing to uphold the General Court’s €4.12bn fine on Google for Android-related abuse of dominance.
This week's edition of Competition weekly highlights includes, from a UK perspective: (1) a High Court ruling dismissing a toy manufacturer’s damages claim but finding that MGA abused its dominant position and made unjustified patent threats, and (2) the CMA’s decision to update its procedural complaints guidance. This week's highlights also includes, from an EU perspective: (1) the Commission’s proposals for simplification to speed up defence investments in the EU, (2) an AG opinion concerning a national reference from Portugal on the interpretation of provisions in the Damages Directive governing actions for damages under national law for infringements of competition law, and (3) the Commission’s decision to publish a Revised Code of Best Practices for conduct of State aid control procedures.
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