CAT refuses application for a preliminary ruling to the Court of Justice in MIFs damages action

 

CAT refuses application for a preliminary ruling to the Court of Justice in MIFs damages action

The Competition Appeal Tribunal has refused an application by Visa to make a reference to the Court of Justice of the European Union under Article 267 TFEU for a preliminary ruling.

The application concerns actions by 479 merchants claiming damages for alleged infringements of Article 101/102 of the TFEU and UK law equivalent provisions on account of Visa setting the level of Multilateral Interchange Fees (MIFs) in transactions under its system. The claims are among a large number of similar claims that have been brought by merchants against both Visa and Mastercard.

The question at issue was whether in a claim alleging an infringement of Article 101(1) should each scheme's MIFs be judged against a counterfactual in which the other scheme remains free to compete by setting its own MIFs independently.

The CAT concluded there was no justification, within the terms of Article 267 of the TFEU, to refer the proposed question to the CJEU in order to decide the cases pending before the CAT.

Dune Shoes Ireland Limited & others v Visa Europe Limited & others, [2020] CAT 26, judgment of 22 December 2020

CMA issues further cartel infringement decision to the construction industry

 

The Competition and Markets Authority has found that three suppliers of groundworks products to the UK construction industry, Vp plc, M.G.F. (Trench Construction Systems) Ltd and Mabey Hire Ltd, infringed the Chapter I prohibition and Article 101 TFEU.

The CMA fined Vp £11,235,660 and M.G.F. and its parent company MGF Limited £3,773,910.

This is the fourth occasion in the last two years that the CMA has imposed fines for cartelisation in the construction sector.

The CMA found that the companies shared confidential information on future pricing and commercial strategy with the objective of reducing competition and maintaining or increasing prices.

Mabey Hire Ltd benefited from full immunity from fines under the CMA's Leniency Programme.

Commission publishes text of proposed regulation of digital gatekeepers

 

Commission publishes text of proposed regulation of digital gatekeepers

The European Commission has revealed its proposal for regulation of the digital sector in its Digital Markets Act.

The Digital Markets Act would apply to “gatekeepers” who control at least one “core platform service”.  This will cover search engines, social networking services, certain messaging services, operating systems and online intermediation services.

Only companies of a certain size would designated as gatekeepers.  Once a company meets the thresholds, it will be presumed to occupy that position unless it shows evidence to the contrary.

Gatekeepers would be subject to certain obligations including allowing inter-operability and providing access to information and data.

The new legislation would allow the Commission to conduct market investigations to identify gatekeepers that are not captured by the existing rules or to identify compliance failures.

The Commission would have investigatory powers to request information, conduct dawn raids and impose fines up to 10% of the company's total worldwide annual turnover for breach.

The European Parliament and the Member States will discuss the Commission's proposals in the ordinary legislative procedure.  If adopted, the final text will be directly applicable across the European Union.

https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2347

Mastercard Milestone Judgment paves the way for competition collective proceedings

 

Mastercard Milestone Judgment paves the way for competition collective proceedings

The Supreme Court has dismissed Mastercard’s appeal against the Court of Appeal’s judgment finding that the Competition Appeal Tribunal (CAT) had erred in refusing an application for a collective proceedings order (CPO) by Mr Walter Merricks (Merricks) in a potential claim for damages.

The Supreme Court held that collective proceedings are a special form of civil procedure. They are designed to provide access to justice where an ordinary individual civil claim would be inadequate.

If quantification issues would not have prevented an individual claim from proceeding to trial, the CAT should not have halted the collective proceedings claim at the certification phase.

The CAT should have asked itself whether the claims were suitable to be brought in collective proceedings as compared to individual proceedings, and suitable for an award of aggregate damages as compared to individual damages.

The CAT was wrong to require Merricks’ proposed method of distributing aggregate damages to take account of the loss suffered by each class member.

The Supreme Court has sent the CPO application back to the CAT and the focus now is on a case which could see damages for some 46 million consumers.   The CAT must now consider whether the claim is more suitable to proceed on a collective basis than individually.  While the case has not yet been given a green light to proceed, the test approved by the Supreme Court represents a lowering of the bar compared to the CAT’s original approach.

This is undeniably a landmark decision. It opens the way to other potential claims that have been in suspense in anticipation of clarification of how claimants should formulate their claims and what supporting evidence is required at the outset.

Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51

CMA urges mandatory merger notification for tech transactions

 

CMA urges mandatory merger notification for tech transactions

The Competition and Markets Authority has advised the government to implement a new mandatory merger notification regime for transactions involving technology companies that have “strategic market status”.

If implemented, the proposals would add another layer of complexity to UK merger control which, up to now, has operated largely on a voluntary basis.

The CMA expects the new rules would bite on a small number of transactions involving digital platforms.  Its new digital competition unit would prioritise designating those that have an annual UK revenue of over £1 billion.

Questions have been raised about whether the CMA really needs a new tool to intervene in these cases.  It has in the past asserted jurisdiction over deals which generate no UK turnover including Roche/Spark and Sabre/Farelogix.

A practical question arises as to how the UK can exercise effective remedies in cases which, by definition, will involve businesses that operate globally in integrated platforms.  This probably calls for a more coordinated approach to international scrutiny of high profile technology deals which could be subject to multiple and inconsistent reviews. 

 

https://assets.publishing.service.gov.uk/media/5fce7567e90e07562f98286c/Digital_Taskforce_-_Advice_--.pdf

 

CMA launches market study into electric vehicles charging

 

CMA launches market study into electric vehicles charging

The Competition and Markets Authority has launched a market study into the supply of charging for electric vehicles (EVs) in the UK. The EV sector is considered critical to achieving the government's commitment to net zero emissions in road transport by 2050.  It is interesting that the CMA has launched this study now as the sector is growing, while still at a nascent stage.

The market study will examine EV charging in a number of contexts including home or off-street, on-street, workplace, hub and destination, and en route charging.

The CMA will focus on two broad themes: 1) how to develop a competitive sector while also attracting private investment to help the sector grow, and 2) how to ensure consumers using EV chargepoints have confidence that they can get the best out of the service.

The CMA invites comments by 5 January 2021 on the scope of the market study and issues.

The CMA must publish its final report on the market study by 1 December 2021.

https://www.gov.uk/government/news/cma-to-examine-electric-vehicle-charging-sector