Antitrust Trade & Regulation

Written by Lisa Navarro

In September 2013, the Office of Fair Trading (“OFT“) issued statements of objection (“SO“) in two separate resale price maintenance cases. The first relates to the sale of sports bras, and the second to mobility scooters. Distinct products, sold in different ways, but both have allegedly been the subject of arrangements between suppliers and retailers aimed at artificially managing the prices that consumers pay.

The investigation into price fixing for sports bras was launched in April 2012. It focused on the conduct of DB Apparel UK Limited (“DBA“) with regard to its Shock Absorber range of sports bras. Between 2009 and 2011, DBA allegedly entered into nine agreements with three major department store chains covering nationwide sales of multiple products within the Shock Absorber range. The agreements contain provisions which set a fixed or minimum resale price for the products, thereby resulting in prices being higher than they might otherwise have been.

The OFT’s decision to issue an SO to Pride Mobility Products Limited (“Pride“) and a number of the retailers that sell its mobility scooters follows a market study on the mobility aids sector which concluded in 2011. Pride and its retailers are accused of being party to arrangements which prevented the retailers from advertising online prices at levels below Pride’s recommended retail price.
Continue Reading OFT investigates pricing restrictions in sale of mobility scooters and sports bras

Written by Luke Dixon

Recent news on both sides of the Atlantic has included considerable commentary on the issues of data privacy and international data flows. With an important vote on the issue due to take place in the EU Parliament next month, now seems like a good time to bring readers up to date with progress on the proposed draft General Data Protection Regulation (the “Regulation”). This legislation (once adopted by the EU) will provide the superstructure to its approach to the challenges of data privacy in the 21st Century.

The European Commission published its reform proposals for EU data protection law in January 2012. These reforms are intended to replace the current Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “Data Protection Directive” or the “Directive”).

The reforms are chiefly embodied in a draft Regulation which is currently making its way through the EU’s legislative process (albeit not at a breakneck pace). The Regulation is aimed at harmonizing the data protection procedures and enforcement across the whole EU. This should provide a “one-stop shop” for non-EU companies who want to understand their compliance obligations. Under the current Directive, the EU Member States have more scope for interpretation in their national laws, and their implementation of EU law has been more uneven. This note highlights some of the key changes to the present regime that will be introduced if the draft Regulation is adopted in its current form.
Continue Reading The Draft EU Data Protection Regulation: Where are we now, and where are we going?

Written by Simon Harms | Stephen C. Tupper

As many businesses will be acutely aware, the preparation of merger control notifications to the European Commission (the “Commission“) under the EU Merger Regulation (the “EUMR“) in respect of M&A transactions requires a considerable amount of effort by in-house teams and external legal and economic advisers and results in significant costs in terms of professional fees and management time.

As detailed below, the Commission is currently proposing small but significant changes to its notification rules to ensure that these financial and administrative burdens are only imposed when absolutely necessary.

By way of background, the EUMR uses monetary turnover thresholds to determine whether a notification must be made in respect of an M&A transaction. While this provides parties with a great deal of certainty regarding the need to make a filing, it also means that the rules catch transactions which could not, by any stretch of the imagination, have a real impact on competition (e.g. acquisitions by parties which have no, or minimal, overlapping operations with their targets).
Continue Reading EU merger control: reform with a small ‘r’ (but do not underestimate its value)

Written by Kara M. Bombach | Lisa Navarro

Since the UK’s Bribery Act 2010 came into force (on July 1, 2011) the last 18 months have not been filled with the enforcement activity some expected or hoped for. Rather than headline-grabbing dawn raids by the Serious Fraud Office (SFO), or big name take-downs, the first case to reach prosecution was of a much lower profile. The lack of big name cases does not mean, however, that the enforcement authorities have been lax, nor that the Bribery Act is toothless.

Initial Prosecutions under the Bribery Act

The first prosecution under the Bribery Act involved a magistrates court clerk, the subject of a “sting” reporting operation by the Sun newspaper. Caught (and filmed) accepting cash bribes of around £500 in return for not recording driving offences in the court database (thereby helping people to avoid driving bans), the clerk was convicted in October 2011 of bribery and misconduct in public office. A three-year prison term was imposed for the bribery offence. Although the clerk was found to have been accepting the bribes since 2009, the prosecution was based on the one 2011 offence that occurred after the Bribery Act entered into force.
Continue Reading The UK’s Bribery Act – Enforcement on the Horizon?

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 Simon Harms

On 14 December 2010, the European Commission (the “Commission”) adopted a new suite of rules governing co-operation between actual or potential competitors, consisting of (i) guidelines on the applicability of EU competition law to horizontal co-operation agreements (the “Guidelines”) and (ii) two new block exemption regulations covering: (1) R&D agreements; and (2) specialisation and joint production agreements.

The Guidelines and block exemption regulations replaced existing rules which had been in place for a decade and cover a large variety of different types of horizontal co-operation agreements. In an effort to break down the myriad new rules to manageable proportions and in a user-friendly style, GTM has prepared a series of alerts which, in turn, examine the implications for the  various categories of agreement. This alert focuses on standardisation agreements.1  
Continue Reading EU competition: industry standards and antitrust compliance

Written by Stephen C. Tupper

On May 13, 2009, the European Commission (the “Commission”) published a summary of a decision1 confirming its view that Intel Corporation was guilty of serious anti-competitive conduct during a period from 2002-2007 in an important microprocessor market and, consequently, the Commission imposed a massive €1.06 billion fine on Intel. (A non-confidential version of the decision was published on September 21, 2009).

The Commission’s decision is the culmination of nine years of work and two separate, but related, investigations. It is a notable event for two reasons: (i) the eye-catching size of the fine, the largest ever imposed by the Commission on a single company for an antitrust violation; and (ii) because it is the result of a major Commission Article 82 investigation, the rarely used — at least when compared to its Article 81 anti-cartel counterpart — abuse of dominant position, or anti-monopoly, provision in the EC Treaty. It also constitutes a continuation of the Commission’s unofficial policy of reserving the use of Article 82 for “big fish” in “high profile” markets.
Continue Reading The European Commission’s Intel Decision