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Written by Simon Harms and Lisa Navarro

On 15 March 2012, the UK’s Department for Business Innovation and Skills (“BIS”) announced its plans for the reform of the UK competition regime. These proposals were crystallised on 23 May 2012 in the Enterprise and Regulatory Reform Bill (the “Bill”).

The proposals set out in the Bill include amendments to the existing legal rules and certain procedures, as well as a major structural shakeup of the enforcement institutions, the Office of Fair Trading (“OFT”) and the Competition Commission (“CC”). As part of a wider rationalisation of UK governmental organisations, the OFT and CC are to be merged into a single entity, the Competition and Markets Authority (“CMA”) by April 2014.

This article highlights the main institutional and operational changes that will accompany this structural shift. It goes on to consider other key proposals contained in the Bill relating to merger control and the criminal “cartel offence”.
Continue Reading Reform of the UK competition regime

Written by Simon Harms and Stephen C. Tupper

On 4 May 2012, the European Commission (the “Commission”) announced its preliminary intention not to renew its sector-specific guidelines on the application of the European Union (“EU”) competition rules to maritime transport services (the “Maritime Guidelines”). As a prelude to implementation, the Commission has issued a working paper setting out its position and has initiated a consultation requesting comments from interested parties by 27 July 2012.

By way of background, the Maritime Guidelines were adopted by the Commission in 2008 as a result of intense lobbying by stakeholders following the repeal the longstanding EU antitrust exemption for container shipping conferences set out in the liner shipping block exemption regulation. The Maritime Guidelines have an in-built expiry date of 26 September 2013.

The Commission has indicated that it does not consider retention of sector-specific guidelines for maritime transport as being necessary. The main reasons given for this position are summarised below.
Continue Reading Commission ready to declare maritime transport a sector like any other

Written by Stephen C. Tupper

Last year, the European Commission (the “Commission”) announced in its first annual report on trade and investment barriers that one of the items on its “to-do” list was to find a way to eradicate trading obstacles faced by EU exporters in certain markets outside the EU, where the same obstacles were not faced by exporters located in such jurisdictions seeking access to their counterpart markets within the EU. The Commission stated at the time that it intended to take action which was “assertive” in order to have a real impact on behaviour. These “assertive” measures have now been laid out in a proposal for a Regulation which aims to encourage bilateral agreements of cooperation and reciprocity in the procurement markets between the EU and non-EU countries.
Continue Reading Commission launches ‘assertive’ campaign to open up procurement markets outside the EU

Written by Stephen C. Tupper

Thames Water has been engaged in battle with Ofwat and Independent Water Networks Limited (“IWNL”) for the right to supply the 67-acre King’s Cross redevelopment site with water and sewerage services for several years. A recent decision from the Court of Appeal has brought proceedings to an end by rejecting Thames Water’s appeal against the judicial review decision which confirmed that Ofwat was acting within its powers by granting an inset appointment to IWNL over the site.

Background

In the UK, water and sewerage services are generally supplied by companies which have been granted regional monopolies. These incumbent companies are, for the most part, the sole providers of water and sewerage services in their designated regions (e.g. Thames Water in London). In an attempt to introduce a level of competitiveness to this market Ofwat are, in some circumstances, able to grant “inset appointments” to third parties who make an application to take over supplying a specific premises within the incumbent’s geographical region (e.g. IWNL for the King’s Cross redevelopment site).
Continue Reading The Battle of King’s Cross

Written by Ifé O. Adebajo and Lisa Navarro

In January 2012, the highly publicised bribery case against the UK construction company Mabey & Johnson Limited (“M&J“) reached a climactic conclusion. The resulting decision has sent shockwaves through the hearts and wallets of shareholders and investors with interests in entities that carry on business in the UK.

Background

In 2009, M&J pleaded guilty to corruption offences and breach of UN sanctions for making payments of over £250,000 to Saddam Hussein’s Iraqi government in order to secure bridge-building contracts. In addition to custodial sentences being imposed on the responsible directors, M&J was fined £6.6 million and a comprehensive upheaval of its anti-bribery and corruption policies followed.
Continue Reading Bribery Update – Warning bells sound for investors

Written by Lisa Navarro and Stephen C. Tupper

On 1 December 2012 the Court of Appeal (“CA“) upheld the High Court’s decision in the dispute between Wayne Rooney and his former management company, Proactive Sports Management Limited (“Proactive“). The case centred around whether or not the image rights agreement (the “Agreement“) that Wayne Rooney entered into with Proactive when he was 17 was unenforceable by reason of it being in restraint of trade. The High Court and the CA agreed that it was.

The Agreement appointed Proactive as Rooney’s sole and exclusive representative with regard to the exploitation of Rooney’s image rights. It was entered into in 2003 for a term of eight years and entitled Proactive to a 20% commission on all relevant contracts and arrangements negotiated by Proactive. As noted above, Rooney was only 17 at the time and did not take legal advice when signing up to the Agreement.
Continue Reading Rooney and restraint of trade – the doctrine is still alive and kicking

Written by Simon Harms and Stephen C. Tupper

1. Background

A significant number of countries worldwide now operate mandatory merger control regimes. Cross-border M&A activity, as a result, increasingly involves notifications in several jurisdictions. Most regimes are national in scope, however, important supranational merger control regimes exist – such as European Union (“EU”) merger control.

Whilst EU merger control operates as a “one-stop shop” for the entire EU1for transactions meeting certain thresholds, 26 of the 27 EU Member States2 operate national merger control regimes for transactions that do not. As a result, many transactions require notification to multiple merger control authorities within the EU, each subject to its own procedural and substantive rules which vary significantly from jurisdiction to jurisdiction.3
Continue Reading Streamlining multi-jurisdictional merger control in a globalised world – best practices

Written by Simon Harms and Stephen C. Tupper

In September 2011, the Court of Justice of the European Union (the “CJEU”), handed down its judgment in the latest of a series of successful challenges to the European Commission’s (the “Commission”) practice of holding parent companies jointly liable for the antitrust sins of their subsidiaries.

The basic position in EU competition law was settled in 2009 in the case of Akzo Nobel v Commission in which the CJEU held that “[…] the conduct of a subsidiary may be imputed to the parent company in particular where, although having a
separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company.”
Continue Reading Antitrust fines – the inevitability of parental liability revisited

Written by Simon Harms and Stephen C. Tupper

Introduction

On 22 September 2011 the Office of Fair Trading (the “OFT”) published a market study on the state of competition in the organic waste sector in England and Wales (the “Market Study”) which was instigated at the request of the Water Services Regulation Authority (“Ofwat”) in the context of its ongoing comprehensive review of how it regulates the water industry.

Scope and findings

The Market Study covers the treatment of all types of organic waste which the OFT categorises into two broad types: sewage sludge (“SS”) which falls within Ofwat’s regulatory ambit; and other organic waste (“OOW”) such as slurries, manure and food and drink waste, the treatment of which is not directly regulated by Ofwat. The OFT examined the markets for the treatment of organic waste from three distinct angles: