High Court calls time on refusal to supply claim against Swatch

 

The High Court has rejected an attempt by watch parts wholesaler Cousins to resurrect a claim against Swatch for abuse of dominance in a refusal to supply claim.  The Court ruled that the action would relitigate prior Swiss actions dismissing the claim.

Mr Justice Michael Green ruled that the Lugano Convention applied to the previous Swiss Court rulings.

The case dates back to supply chain events from 2015.  The Berne Commercial Court ruled in 2021 that Swatch’s refusal to supply was part of a rationalisation of its supply chain and was objectively justified and there was no need to consider the effect on UK competition.  The Federal Supreme Court subsequently upheld that decision in 2022.

The case involves consideration of application of the Lugano Convention.   The Convention still applies in this case because the action was commenced before the UK exited the Convention upon its withdrawal from the EU.  However a court can disapply the rules if a jurisdiction has manifestly different public policy objectives.   The Convention also prevents a UK court from re-examining the ruling of the court of another Convention jurisdiction on the merits.

It was argued on behalf of Cousins that the claimant was denied a right to be heard before the Swiss Courts which did not hear vast amounts of evidence relating to the UK.

Green J rejected the claims as “somewhat outlandish”.  He observed that Switzerland is a signatory of the European Convention on Human Rights and it is not obvious that the Swiss judgments are contrary to UK public policy.

The case is a sobre reminder of what Green J described as “a great risk of straying into the forbidden arena” of re-examining the merits of prior rulings and where the impugned judgments were found to reference evidence relating to the UK.

Cousins Material House v Swatch [2024] EWHC 710

Amendments to Digital Markets, Competition and Consumer Bill to prevent acquisitions by foreign powers

 

Amendments to Digital Markets, Competition and Consumer Bill to prevent acquisitions by foreign powers

 

Amendments to the Digital Markets, Competition and Consumer Bill have been tabled, to amend the Enterprise Act 2002 to introduce a new regime for mergers involving newspaper enterprises and foreign powers.

Under the amendments, the Secretary of State must give the Competition and Markets Authority (CMA) a “foreign state intervention notice” if the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a "foreign state newspaper merger situation" has been or will be created.

A foreign state newspaper merger situation will arise where as a result of two or more enterprises ceasing to be distinct, a foreign power is able to control or influence the policy of the person carrying on the newspaper enterprise, or is able to control or influence that policy to a greater extent. The turnover test is reduced to £2 million for such mergers.

The CMA must then report on whether such a merger situation has been or will be created. If it reports that this is the case, then the Secretary of State must make an order containing such provision as the Secretary of State considers reasonable and practicable for the purposes of reversing or preventing the creation of the identified foreign state newspaper merger situation.

 

The DMCC Bill is due to have its third reading in the House of Lords on 26 March 2024.

https://bills.parliament.uk/publications/54855/documents/4610

CMA consults on market investigation into veterinary services for household pets

 

CMA consults on market investigation into veterinary services for household pets

The CMA is proposing to undertake a market investigation into the supply of veterinary services for household pets, including the supply of prescribed veterinary medicines.

This follows the CMA’s September 2023 consultation into the veterinary services market for household pets.  The consultation received an unprecedented level of responses tp its consultation.

The CMA found concerns that consumers may not be given enough information to enable them to choose the best veterinary practice or treatment.

The CMA has found that over 80% of veterinary practices have no pricing information on their websites, even for routine consultations or vaccines.

The CMA has found that while the Royal College of Veterinary Surgeons operates a voluntary standards scheme, around 30% of the market has not committed to this.

The CMA invites comments by 11 April 2024.

https://www.gov.uk/government/consultations/consultation-on-the-proposal-to-make-a-market-investigation-reference-into-veterinary-services-for-household-pets-in-the-uk

Ruling on permission to appeal approval of funding arrangements in collective proceedings against Mastercard and Visa

 

The Competition Appeal Tribunal (CAT) has granted an application by Mastercard and Visa for permission to appeal the CAT's judgment approving the funding arrangements for the applications for collective proceedings orders (CPOs) brought by Commercial and Interregional Card Claims I Limited (CICC I) and Commercial and Interregional Card Claims II Limited (CICC II), under section 47B of the Competition Act 1998.

The proposed class representatives (PCRs) have revised their CPO applications and funding arrangements in light of the Supreme Court's judgment in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others [2023] UKSC 28 (PACCAR).  Following PACCAR, the funding arrangements for large collective claims have been somewhat uncertain.

On 17 January 2024, the CAT rejected all of Mastercard and Visa’s arguments against the enforceability of the PCRs’ funding arrangements. The judgment emphasised a focus on the substance of funding arrangements as opposed to a blanket assertion of unenforceability regardless of funding arrangements or structure. This approach helps to reinforce the collective actions regime by allowing litigation funding – an essential component – to continue, without which, large claims against competition infringers would be impossible. The CAT accepted that the continuing uncertainty about these issues of funding enforceability arising in this and other cases before the CAT is unlikely to be resolved without determination of the issues by the Court of Appeal.

The CAT granted the applications for permission to appeal stating that it may be of assistance to the Court of Appeal to have a slightly different fact pattern to consider when resolving the points on appeal.

The ruling is timely following the panel discussion I participated in on 28 February 2024 at TL4’s Financial Services conference.

Commercial and Interregional Cards Claims I Limited v Mastercard Inc and others, Commercial and Interregional Cards Claims II Limited v Mastercard Inc and others, Commercial and Interregional Cards Claims I Limited v Visa Inc and Commercial and Interregional Cards Claims II Limited v Visa Inc [2024] CAT 16