United Kingdom: Overview

Becket McGrath and Simon Albert

Berwin Leighton Paisner LLP

The UK competition regime consists of three main pillars:
• a general competition law regime, set out in the Competition Act 1998 (CA98), which is based on clear prohibitions of anti-competitive agreements and concerted practices (the chapter I prohibition) and the abuse of market dominance (the chapter II prohibition)¹ and is enforced by the Office of Fair Trading (OFT) and sectoral regulators;²
• a market investigation regime, set out in the Enterprise Act 2002 (EA02), under which the OFT or a sectoral regulator, or indeed a government minister, can refer an entire market to the Competition Commission (CC) for detailed investigation, and potentially remedial action, where it considers that any feature, or combination of features, of the market prevents, restricts or distorts competition; and
• a merger control regime, also set out in the EA02, under which the OFT decides on whether to clear a merger or to refer it to the CC for an in-depth investigation and the CC ultimately decides on whether a merger should be cleared outright or be subject to one or more of a wide range of remedies.

The prohibition of anti-competitive agreements is strengthened by powers to disqualify directors for serious infringements and, in cases involving dishonest cartel activity, by the separate criminal cartel provisions of the EA02.
Certain decisions of the OFT, CC and sectoral regulators can be appealed to the Competition Appeal Tribunal (CAT), an independent, specialist judicial body. The CAT has the power to conduct a full merits review of decisions as to whether companies have infringed general competition law and to review merger control and market reference decisions, on judicial review grounds only. Judgments of the CAT may be appealed in turn to the Court of Appeal or, for Scottish cases, the Court of Session.
To the extent that there have been developments in the past year in the specific areas of cartel policy, merger control and private enforcement of competition law, these are dealt with in separate articles. While this article does touch on recent developments in cartel enforcement and in the courts, given their importance for the shape of the overall regime, this article will mainly deal with developments in the remaining areas of UK competition policy, while attempting to draw out some general themes.
The past year has been characterised by a flurry of enforcement activity, with the most significant development being the conviction, and imprisonment, of three individuals for participation in an international cartel relating to hoses for the transport of oil between tankers and storage facilities. This development, which marked the first convictions of individuals under the cartel offence provisions of the EA02 and the first time that directors have been disqualified for a competition law infringement, was closely followed by an announcement by the OFT that it was bringing criminal charges against four past and present employees of British Airways for participating in a price-fixing arrangement with rival Virgin Atlantic. In the field of civil enforcement, the OFT has further developed its practice of reaching early resolution agreements with parties under investigation in a series of high-profile cases. At the time of writing, this approach had led to a number of companies agreeing to pay fines totalling over £360 million in three separate investigations. In addition, the sectoral regulators have continued to enforce general competition rules, with Ofgem fining the UK energy network operator, National Grid, for abuse of dominance. This high level of activity represents a marked contrast with previous years and promises to lead to new challenges in the year ahead.

Behavioural cases

As noted in last year’s Review, there has been a clear trend over recent years for the OFT to focus its resources on fewer, high-impact investigations.³ While this policy initially led to fewer cases being opened, and several ongoing cases being closed on administrative priority grounds, it appears to have started to deliver results since publication of the last Review, with a marked increase in activity in the form of actions against both individuals and companies.

Criminal prosecutions

The end of 2007 saw the announcement by the OFT that it had for the first time used its criminal cartel powers, to bring charges against three Britons suspected of involvement in a cartel concerning marine hoses, which are used to transport oil between tankers and storage facilities.⁴ The three individuals were originally arrested by the United States authorities while they were attending an industry conference in Houston, Texas. They subsequently entered into plea bargain agreements with the US Department of Justice (DoJ), under which they pleaded guilty to breaking US antitrust laws and agreed to serve jail terms of between 20 and 30 months.
Interestingly, rather than proceeding with a trial in the US, the DoJ entered into an arrangement with the OFT, under which the individuals were flown back to London, where they were arrested and charged with participating in a criminal cartel, contrary to UK law. They were sentenced on 11 June 2008 to between 30 and 36 months’ imprisonment. In addition, the three men were disqualified from acting as company directors for periods of between five and seven years.⁵ As of August 2008, two of the three individuals concerned were appealing against their sentences; the UK Court of Appeal is expected to hear the case before the end of 2008.⁶
No doubt encouraged by this outcome, the OFT has recently announced that it is bringing criminal charges against four past and present employees of British Airways (including a senior board director) for their participation in an unlawful arrangement to fix fuel surcharges on transatlantic routes between August 2004 and January 2006.⁷
The OFT’s successful cartel offence prosecutions in the Marine Hoses case have also served to underline the difficulty of using the pre-EA02 law as a basis for asserting individual criminal liability. On 12 March 2008, in a long-running case involving Ian Norris, a UK businessman whom the US authorities are attempting to extradite on price-fixing charges that relate to a period before the introduction of the cartel offence by the EA02, the House of Lords ruled that ‘mere price fixing’, without aggravating factors such as deception, did not constitute a criminal conspiracy to defraud. As a result, Mr Norris could not be extradited to the US to face charges over his alleged participation in the graphite electrodes cartel.⁸
The Serious Fraud Office (SFO) has also been unsuccessful in its prosecution of five pharmaceutical manufacturers and several executives for conspiring to fix prices for generic drugs sold to the National Health Service (NHS) from 1996 to 2001. The SFO’s investigation has been one of its largest and longest ever, with more than six million documents being gathered in the course of an eight-year inquiry. Despite the fact that the SFO apparently uncovered extensive evidence of a price-fixing cartel (which incidentally has led to civil settlements of £34 million), the Norris judgment clearly posed a major problem for its prosecutions, which relied on characterising that behaviour as a criminal conspiracy to defraud. Although the SFO sought leave to amend its case to take account of Norris, by referring to the fact that the defendants had allegedly made false statements to the authorities about their activities, permission was refused by Southwark Crown Court on 11 July 2008. The SFO is reported to be appealing this judgment, although its chances of success appear slim.⁹
The problems faced by the SFO in the generics case, and by the US Department of Justice in Norris, arise primarily from uncertainties over the state of the law before the introduction of the specific cartel offence in 2003. As a result, they should perhaps be viewed as transitional issues. It is clear that, going forward, executives based in the UK will face a greater risk of prosecution in the UK, or indeed extradition to the US, for cartel behaviour that post-dates the entry into force of the EA02.

Civil enforcement

The UK has also witnessed renewed activity in the area of civil enforcement over the past year. By encouraging companies to enter into ‘early resolution agreements’, under which they admit involvement in an infringement of competition law and agree to cooperate with the OFT’s investigation, in return for a ‘significant reduction’ in the level of the fine ultimately imposed, the OFT has been able to announce a record number of infringement findings. Although the early resolution process was first used by the OFT to resolve its Independent Schools investigation back in 2006,¹⁰ it was initially unclear whether the procedural outcome reflected the unique facts of that case, rather than a sign of things to come. It is now clear that the OFT views the procedure (which is distinct from both the established leniency regime, under which fines are reduced for whistleblowers or other parties voluntarily offering up material that assists with an investigation, and the formal commitments procedure) as an attractive means of resolving cases, as it makes investigations easier, reduces the chances of an infringement decision being appealed and enables the OFT to announce fines long before any final infringement decision can be published. Clearly such settlements can also be attractive for the companies concerned, as they reduce their financial exposure and provide a greater degree of certainty over the outcome of a case. Less positively, the non-statutory process is not particularly transparent and the significant time lag between the announcement of settlements and the publication of final decisions leaves some uncertainty over the legal position in the interim. Lingering doubts also remain about the effect of the procedure, and the strong incentives for settlement, on companies’ rights of defence.
The fruits of the strategy for the OFT can be seen in its announcement of fines totalling over £360 million since publication of the last Review. The tone was set by the OFT’s announcement on 1 August 2007 that British Airways had agreed to pay a record penalty of £121.5 million for colluding with its rival Virgin Atlantic over the level of fuel surcharges on transatlantic flights.¹¹ (As the leniency applicant, Virgin Atlantic escaped fines altogether.) This was followed, on 7 December 2007, by the OFT’s announcement that it had reached an early resolution agreement with a number of companies concerning collusion over the pricing of milk, butter and cheese.¹² Specifically, Asda, Dairy Crest, Safeway, Sainsbury’s, The Cheese Company and Wiseman agreed to cooperate with the OFT’s investigation and together pay penalties of over £116 million. Three months later, the OFT announced that a further dairy processor, Lactalis McLelland, had joined the settling companies.¹⁴ At the time of writing, no infringement decision has yet been formally adopted in this case, or indeed in the British Airways/Virgin case mentioned above.¹⁵
Interestingly, the supermarket chains Morrisons and Tesco have not entered into early resolution agreements with the OFT in this case and the process against those companies therefore continues. In addition, the potential pitfalls of the settlement procedure were highlighted by Morrisons’ unprecedented decision simultaneously to sue the OFT for libel, and to seek a judicial review, over allegations contained in its announcement of the original Statement of Objections in this case. Although these actions were rapidly settled,¹⁶ they are a reminder of the more litigious environment in which the OFT now operates.
The OFT bounced back from the Morrisons experience by announcing a further round of settlements, this time with retailers Asda, First Quench, One Stop Stores, Somerfield and TM Retail and with tobacco company Gallaher. The companies concerned had admitted to entering into unlawful practices in relation to the retail pricing of tobacco products, for which they agreed to pay a total of £132.2 million in fines (reduced from £173.3 million, taking cooperation and leniency requests into account).¹⁷ Specifically, the OFT asserted that each of Imperial Tobacco and Gallaher had agreed with 11 UK retailers to link the retail price of its own brands of cigarettes and rolling tobacco to the retail price of a competing brand of the other manufacturer; and that information on proposed future retail prices had been exchanged between the tobacco companies via retailers. Both practices apparently led to prices of competing brands being kept at a comparable level across the retailers concerned.
As with the milk case, however, the tobacco settlement is not complete, with The Co-operative Group, Imperial Tobacco, Morrisons, Safeway, Shell and Tesco continuing to contest the OFT’s case. (The eleventh retailer, Sainsbury’s, has not been fined, as its leniency application triggered the investigation.) Given the non-statutory nature of the early resolution agreement process, it will be interesting to see how the OFT’s approach fares before the CAT, should the OFT ultimately issue infringement decisions against the non-settling parties in these cases. A full review by the CAT would also test the legal analysis adopted by the OFT in these cases.
In contrast to the OFT’s settlements-based approach, the energy regulator Ofgem adhered to the standard infringement procedure when it fined UK energy networks operator National Grid £41.6 million earlier this year for infringing the CA98’s Chapter II prohibition and article 82 EC Treaty by excluding competitors from the domestic gas meter market.¹⁸ Since the OFT settlements mentioned above have not yet resulted in fines actually being paid, the National Grid fine is currently the largest fine actually levied for a UK competition law infringement. The decision is also only the second time that a UK sectoral regulator has made a competition law infringement finding. National Grid is currently challenging the infringement decision before the CAT.
The OFT’s continuing focus on supermarkets has led it into fresh areas of inquiry. On 24 April 2008, the OFT raided a number of supermarkets and branded goods suppliers, with the investigation reportedly focusing on relationships between supermarkets and suppliers of health, beauty and grocery products.¹⁹ In May 2008, OFT investigators returned to another favourite sector, retail financial services, raiding the Royal Bank of Scotland and Barclays after the latter alerted the OFT to concerns that it had over contacts between the companies concerning lending to professional services firms, such as law firms and accountants.
The sectoral regulators also continue to use their general competition powers, with investigations underway into BT’s wholesale pricing (Ofcom)²⁰ and into the behaviour of Scottish Power and Southern Energy relating to electricity transmission capacity (Ofgem).²¹ With the OFT announcing in April that it had finally issued Statements of Objection to 112 construction companies in its long-running investigation of bid rigging activities in the sector,²² the current high level of enforcement activity looks set to continue into 2009.

Market studies and investigations

As noted above, the UK operates a second, parallel competition regime, under which the OFT or a sectoral regulator can refer a market to the CC for further investigation where it has reasonable grounds for suspecting that any feature, or combination of features, of a market prevents, restricts or distorts competition in the UK. Following a reference, it is for the CC to undertake a detailed investigation of the market concerned to determine whether the suspicion on which the reference was based is justified and, if this is the case, to decide what, if any, action should be taken to remedy the adverse effect on competition identified. Each inquiry is undertaken by a dedicated team of four or five part-time members, supported by specialist staff, and must be completed within a statutory limit of two years.
A market investigation reference is usually preceded by a preliminary market study by the OFT (or a sectoral regulator), to establish whether the conditions for a full reference are met. So far in 2008, the OFT has launched two new market studies, into Scottish property management²³ and sale and rent back schemes.²⁴ The OFT’s market studies into UK house building and personal current accounts (see below) remain ongoing at the time of writing. The OFT has also received a request for a market investigation reference in relation to the supply of newspapers and magazines, which it is considering together with other ongoing work affecting that sector.²⁵ In addition, the energy regulator, Ofgem, has launched an investigation under the EA02 into the markets for the supply of gas and electricity to households and small businesses²⁶ and the communications regulator, Ofcom, is still considering whether to refer the UK pay-TV market to the CC for a full market investigation.²⁷
There has not been a single market investigation reference to the CC since last year’s Review. Of the investigations initiated in 2007, the CC published its provisional findings and notice of possible remedies in its rolling stock leasing inquiry on 8 August 2008 and published its provisional findings on BAA on 20 August 2008.²⁸ Regulatory references have, however, been made by the Civil Aviation Authority (Stansted Airport price control review) and the CAT (on an appeal against an Ofcom decision on mobile call termination). In addition, the CC published its conclusions on the level of airport charges at London’s Heathrow and Gatwick airports in October 2007²⁹ and, in July 2007, issued its first ever decision on an appeal against an Ofgem energy code modification decision under the Energy Act 2004.³⁰
The CC’s groceries inquiry is slowly reaching its conclusion, with the CC having published its final report on 30 April 2008.³¹ Following a major inquiry, involving multiple parties, 81 hearings and over 700 submissions, the CC concluded that, while the groceries sector was generally competitive, there were some situations in which high levels of concentration in local markets could arise and persist, due mainly to the interaction of the planning regime (which discourages new out-of-town developments) and the ability of supermarkets and other land owners to control the use of land to make market entry by rivals more difficult. In addition, the CC raised concerns over the ability of supermarket chains to transfer excessive risks and unexpected costs to their suppliers.
The CC decided on a package of remedies to address these issues, including:
• a recommendation to include a ‘competition test’ in planning decisions;
• the introduction of a number of restrictions on the use of restrictive covenants and exclusivity arrangements by ‘large grocery retailers’;
• a recommendation to remove agreements relating to grocery retailing from the protective scope of the CA98 Land Agreements Exclusion Order³² (which excludes certain agreements relating to land from the Chapter I prohibition);
• the establishment of a new Groceries Supply Code of Practice (to apply to all grocery retailers with a UK turnover in excess of £1 billion), which will have stronger terms than the existing Code of Practice; and
• the establishment of an ombudsman to arbitrate on disputes under the new Code.

Although the Department of Business, Enterprise and Regulatory Reform (BERR) has recently published its response to the CC’s recommendations,³³ implementation of remedies may be delayed by an ongoing CAT review of the CC’s decision to recommend the introduction of a competition test to the planning process, which was initiated in July 2008 by the supermarket group Tesco.³⁴ Although the CAT is unlikely to overturn the CC’s finding, given the significant amount of discretion it enjoys when framing remedies, this case promises to provide further guidance on the regime, as well as serving as a reminder that the OFT is not the only agency that is finding itself in a more litigious environment.
The only other EA02 market investigation currently before the CC, relating to domestic liquefied petroleum gas, is in its closing stages, with the CC currently finalising its remedies orders.³⁵
While it is hard to generalise, the above cases suggest that there has been a shift away from the frequent use of market investigations to address issues in relatively small markets, often in response to ‘super complaints’, in favour of fewer, larger inquiries. As such, this development could be said to mirror the changes in the parallel CA98 regime. The shift in approach may perhaps be seen in the OFT’s decision not to launch a market investigation reference in response to a super-complaint from Which? (a consumer association) concerning credit card interest calculation charges, preferring instead to adopt a collaborative approach with industry and the financial regulator.³⁶ Retail financial services remain under the spotlight, however, as evidenced by the OFT’s 16 July 2008 report on its market study into personal current accounts.³⁷ The OFT concluded in this report that the market for personal current accounts may not work well for consumers, due to a lack of transparency and complexity in bank charges making it difficult for consumers to accurately compare different bank accounts, which discourages customer switching. The OFT is due to spend the coming months talking to banks and consumer groups in an attempt to achieve voluntary changes to the way that banks run their operations, backed by the threat of a market investigation reference to the CC if they do not change their behaviour.³⁸

Court actions

The past year has also seen interesting developments in the use of competition law arguments in the courts. Such cases (often referred to, slightly misleadingly, as ‘private enforcement’) fall into two broad categories: those where parties are seeking to recover damages suffered as a result of anti-competitive activity that has been found to have occurred by a competition authority (known as ‘follow-on’ actions); and those where parties are seeking to prove from scratch that an infringement has occurred, without a pre-existing infringement decision (known as ‘stand-alone’ actions). The latter category of cases includes a wide range of actions, including damages actions, contractual disputes and challenges to the administration of major sports. It is beyond the scope of this article to cover all the developments in this area during the last year but it may be observed that recent cases show that the UK ‘private antitrust bar’ is in a relatively healthy state.
Although the start of 2008 saw a relative setback for those looking to court actions as a means of providing redress for individual consumers who have purchased products affected by price-fixing arrangements,³⁹ the UK is proving to be a popular forum for damages actions by businesses that have suffered harm by purchasing cartelised products, with follow-on actions underway in the CAT on the basis of European Commission infringement decisions relating to graphite electrodes⁴⁰ and vitamins.⁴¹ Another CAT claim, this time based on a prior Chapter II prohibition infringement decision by the OFT, was settled earlier in 2008.⁴² Since 2003, claimants have had a choice between bringing follow-on actions in the CAT, under specific statutory provisions introduced by the EA02, or in the High Court, under general tort law principles. While the CAT is generally viewed as a more favourable forum for claimants, tactical considerations (particularly relating to the different limitation periods provided by the two regimes) may lead to claims still being brought in the High Court, as is the case with the recently launched claims against addressees of the European Commission’s rubber cartel decision.⁴³ Another High Court follow-on case, Devenish, produced an opportunity for judicial confirmation of the proposition that the damages available in such actions will usually be limited to the sum needed to compensate the claimant for the harm suffered as a result of the anti-competitive conduct in question, and that exemplary or punitive damages should not generally be available where infringing parties have already been fined for that conduct.⁴⁴
While stand-alone actions are too numerous to cover in this article, particularly noteworthy examples of recent cases where a court has been asked to consider detailed competition law arguments include BAGS v Amalgamated Racing⁴⁵ (where the High Court found that the claimants had not proved an infringement of the CA98’s Chapter I prohibition/article 81 of the EC Treaty), Calor Gas v Express Fuels⁴⁶ (where the Scottish Court of Session agreed that the defendant was not liable to pay damages for non-adherence to a restrictive contract, on the grounds that the contract infringed article 81(1) of the EC Treaty and was therefore void) and FAPL v QC Leisure and others⁴⁷ (which includes consideration of the extent to which the Premier League’s foreign broadcasting agreements may infringe article 81). In addition, clearly undeterred by the cautious approach of the Court of Appeal to competition law litigation in the case of Attheraces v BHB,⁴⁸ Virgin Media is pursuing an ambitious claim against BSkyB, asserting that BSkyB’s refusal to supply certain channels to Virgin’s cable service at an acceptable price, and BSkyB’s corresponding decision to materially reduce the amount it pays Virgin to show its channels on its Sky satellite platform, amount to an infringement of article 82.⁴⁹

Future developments

These remain interesting times for UK competition law enforcement. In contrast with recent years, there are now signs that the OFT’s explicit focus on undertaking fewer, ‘high-impact’, cases is bearing fruit. The extent to which this has required a trade-off in terms of legal certainty, rights of defence and procedural transparency remains to be seen. While the OFT’s focus on the quality, rather than the quantity, of its decisions is to be welcomed, the lag between the announcement of settlements and final resolution of investigations leaves a certain amount of uncertainty over the state of the regime. It is beyond doubt, however, that the OFT’s recent settlements and prosecutions have significantly raised the profile of competition law within the UK business community and the population at large. Indeed, the fact that the imprisonment of British businessmen, by a British court, for conduct that until relatively recently did not even amount to a breach of domestic civil law, passed without a great deal of public comment is particularly remarkable. The use by the sectoral regulators of their general competition powers will also have made regulated companies more aware of the need to take account of their wider legal obligations, in addition to the specific requirements placed on them by sectoral regulations.
Looking forward, the OFT is clearly under increasing pressure to demonstrate the value of its work, in an environment where all government departments are under renewed budgetary pressure. As a result, the OFT has abandoned previous output-focused targets, in favour of a target to deliver consumer benefits of, on average, at least five times the OFT’s budget over the 2008-2011 government spending cycle.⁵⁰ In addition, the OFT has published a study on the deterrent effect of competition enforcement⁵¹ and has been at the forefront of efforts to encourage more private competition law actions.⁵² Budgetary constraints do not yet appear to have had an adverse impact on the quality of the OFT’s output but it remains to be seen whether this can continue, given the high level of competition for expert staff and correspondingly high staff turnover. It nevertheless appears that the OFT is now enjoying a period of relative stability, with its new institutional structure, which was introduced to ensure closer integration of the OFT’s competition and consumer protection functions, having bedded down. The almost constant change faced by the OFT and other authorities over the past decade, arising from the introduction of the CA98’s prohibition regime, the modernisation of EC competition law, the introduction of the cartel offence, the reform of the merger regime and the introduction of the market investigation regime, therefore appears to have been replaced with a degree of stability, finally providing the OFT with the scope to perfect what it does and look forward to what it should be doing next.

Notes

1 These prohibitions mirror articles 81 and 82 of the EC Treaty. As a result of the modernisation of European competition law, where conduct investigated may have an effect on interstate trade within the EU the enforcing authority is obliged to apply articles 81 and 82. As a result, these provisions are generally applied in parallel with the equivalent domestic prohibitions, unless it is clear that the conduct concerned has a very limited, local impact.
2 These are the Office of Communications (Ofcom); Gas and Electricity Markets Authority (Ofgem); Water Services Regulation Authority (Ofwat); Office of Rail Regulation (ORR); Civil Aviation Authority (CAA); and the Northern Ireland Authority for Utility Regulation (OFREG). In contrast to the position in other European systems, most UK sectoral regulators have the power to enforce general competition law in their respective sectors, in addition to their sector-specific regulatory powers. These powers are applied concurrently with the OFT, although in practice the regulators are left to apply competition law in the sectors they cover and detailed procedures exist to avoid conflicts.
3 The OFT has been applying revised prioritisation criteria to all new cases since November 2006. The criteria, which apply to competition and consumer enforcement casework, as well as to market investigations, are set out at www.oft.gov.uk/shared_oft/press_release_attachments/compcriteria.pdf.
4 See OFT Press Release 177/07, ‘OFT brings criminal charges in international bid rigging, price fixing and market allocation cartel’ at www.oft.gov.uk/news/press/2007/177-07, dated 19 December 2007.
5 See OFT Press Release 72/08, ‘Three imprisoned in first OFT criminal prosecution for bid rigging’ at www.oft.gov.uk/news/press/2008/72-08, dated 11 June 2008.
6 Global Competition Review: ‘Marine hose executives appeal,’ 10 July 2008. See www.globalcompetitionreview.com/news/news_item.cfm?item_id=6983.
7 See OFT Press Release 93-08, ‘OFT announces criminal charges in airline fuel surcharges cartel case’ at www.oft.gov.uk/news/press/2008/93-08, dated 7 August 2008.
8 Global Competition Review: ‘Norris faces extradition to US again’, 25 July 2008. See www.globalcompetitionreview.com/news/news_item.cfm?item_id=7050. It has since been confirmed by the City of Westminster Magistrates’ Court that Mr Norris can be extradited for the related charge of obstructing a US criminal investigation, although the extradition still needs to be confirmed by the home secretary.
9 Global Competition Review: ‘SFO loses pharma price-fixing case,’ 14 July 2008. See www.globalcompetitionreview.com/news/news_item.cfm?item_id=6996 and also SFO press release dated 11 July 2008: ‘R v Goldshield Plc and others: Serious Fraud Office to appeal the judgement of Mr Justice Pitchford handed down at Southwark Crown Court today,’ at www.sfo.gov.uk/news/prout/pr_570.asp?id=570.
10 See European Antitrust Review 2007. Elements of this approach were also present in the Office of Rail Regulation’s 2006 infringement decision against EWS - see European Antitrust Review 2008.
11 OFT Press Release 113/07, ‘British Airways to pay record £121.5m penalty in price fixing investigation’ at www.oft.gov.uk/news/press/2007/113-07, dated 1 August 2007.
12 OFT Press Release 170/07, ‘OFT welcomes early resolution agreements and agrees over £116m penalties’ at www.oft.gov.uk/news/press/2007/170-07, dated 7 December 2007.
13 OFT Press Release 170/0, ‘OFT welcomes early resolution agreements and agrees over £116m penalties’ at www.oft.gov.uk/news/press/2007/170-07, dated 7 December 2007.
14 OFT Press Release 22/08, ‘Lactalis McLelland agrees early resolution in dairy retail price initiatives investigation’ at www.oft.gov.uk/news/press/2008/22-08, dated 15 February 2008.
15 The long delay in publication of an infringement decision in the BA/Virgin case is presumably due to the need to avoid prejudicing the outcome of the OFT’s related criminal prosecutions of four BA employees.
16 On 23 April 2008, the OFT issued an apology to Morrisons, which clarified the narrow scope of the OFT’s case against the company, and agreed to pay £100,000 compensation, plus costs – see OFT Press Release 54/08, at www.oft.gov.uk/news/press/2008/54-08, dated 23 April 2008.
17 See OFT Press Release 82/08, ‘OFT reaches early resolution agreements in tobacco case’ at www.oft.gov.uk/news/press/2008/82-08, dated 11 July 2008.
18 See Ofgem press release, ‘Ofgem Fines National Grid £41.6M’ at www.ofgem.gov.uk/Media/PressRel/Documents1/Matrix%20FINALE.pdf dated 25 February 2008.
19 Global Competition Review: ‘OFT investigates supermarkets, again,’ 28 April 2008. See www.globalcompetitionreview.com/news/news_item.cfm?item_id=6674.
20 See Ofcom Competition and Consumer Bulletin at www.ofcom.org.uk/bulletins/comp_bull_index/comp_bull_ocases/open_all/cw_988/.
21 See Ofgem press release dated 8 April 2008, ‘Ofgem Launches Competition Act Investigation into Scottish Power Limited and Scottish and Southern Energy plc’ at www.ofgem.gov.uk/Media/PressRel/Documents1/Ofgem%2012.pdf.
22 See OFT press release 52/08, ‘OFT issues statement of objections against 112 construction companies’ at www.oft.gov.uk/news/press/2008/52-08, dated 17 April 2008.
23 See OFT press release 74/08, ‘OFT launches market study into Scottish property factoring’ at www.oft.gov.uk/news/press/2008/74-08 and www.oft.gov.uk/advice_and_resources/resource_base/market-studies/current/scottish, dated 17 June 2008.
24 See OFT press release 62/08, ‘OFT launches market study into sale and rent back,’ at www.oft.gov.uk/news/press/2008/62-08, www.oft.gov.uk/advice_and_resources/resource_base/market-studies/current/saleandrent and www.oft.gov.uk/advice_and_resources/resource_base/market-studies/current/saleandrentqa, dated 14 May 2008.
25 See OFT press release 36/08, ‘OFT update on newspapers and magazines work’ at www.oft.gov.uk/news/press/2008/36-08, dated 11 March 2008.
26 See Ofgem press release dated 21 February 2008, ‘Ofgem Launches Probe into Energy Supply Markets’ at www.ofgem.gov.uk/Media/PressRel/Documents1/Ofgem%2012.pdf.
27 See Ofcom press release dated 13 May 2008, ‘Ofcom announces update on its Pay TV market investigation and its assessment of Sky’s pay DTT proposal’’ at www.ofcom.org.uk/media/news/2008/05/nr_20080513 and www.ofcom.org.uk/tv/paytv/.
28 CC provisional BAA report: www.competition-commission.org.uk/inquiries/ref2007/airports/pdf/prov_find_report.pdf.
29 Inquiry documents are available at www.competition-commission.org.uk/inquiries/ref2007/heathrow/index.htm. The CAA’s ultimate decision on charges, which was published on 11 March 2008, diverged from the CC’s recommendations in certain respects. It is available at www.caa.co.uk/docs/5/ergdocs/heathrowgatwickdecision_mar08.pdf.
30 Decision available at www.competition-commission.org.uk/appeals/energy/eon_final_decision.pdf.
31 See www.competition-commission.gov.uk/inquiries/ref2006/grocery/groceries_inquiry_news.htm.
32 Competition Act 1998 (Land Agreements Exclusion and Revocation) Order, SI 2001/2993.
33 See BERR response paper ‘The supply of groceries in the UK: the Government response to the Competition Commission market investigation’ at www.berr.gov.uk/files/file47089.pdf.
34 Case No: 1104/6/8/08 Tesco Plc v Competition Commission - a summary of the application is at www.catribunal.org.uk/documents/Sum_1104_Tesco_02.07.08.pdf.
35 See www.competition-commission.org.uk/inquiries/current/gas/response_consultation_110708.pdf.
36 See OFT Press Release 91/07 , ‘OFT to work with the credit card industry to improve consumer information’ at www.oft.gov.uk/news/press/2007/91-07 dated 26 June 2007.
37 See OFT Press Release 84/08, ‘Personal current account market not working well for consumers, says OFT’ at www.oft.gov.uk/news/press/2008/84-08 dated 16 July 2008.
38 See ‘Personal current accounts in the UK - An OFT market study’ at www.oft.gov.uk/shared_oft/reports/financial_products/OFT1005.pdf and ‘Personal current accounts market study - A consultation paper,’ 16 July 2008, OFT1005con at www.oft.gov.uk/shared_oft/reports/financial_products/oft1005con.pdf.
39 On 9 January 2008, consumer association Which? announced that it had reached a settlement with sportswear chain JJB Sports in respect of the representative competition law damages action it had brought on behalf of a number of consumers. Which?’s claim arose from a 2003 decision by the OFT that JJB, along with six other companies, had fixed the prices of replica England and Manchester United football shirts between 2000 and 2001. Under the terms of the out-of-court settlement agreement, JJB agreed directly to compensate consumers who were overcharged as a result of the price-fixing agreement. Apparently, some 600 consumers registered to join the Which? action. Each of these was promised £20 per shirt purchased, equating to a total pay-out of about £12,000. Since this settlement was reached, Which? has stated that it is not inclined to bring similar actions, due to the relatively small levels of damages available.
40 Case COMP/36.490 - Graphite electrodes, of 18 July 2001.
41 Case COMP/E-1/37.512 - Vitamins, of 21 November 2001.
42 JJ Burgess and Sons v W. Austin and Sons (Stevenage) Limited and Harwood Park Crematorium Limited, CAT Case Number 1088/5/7/07.
43 Case COMP/38.629 – Chloroprene Rubber, of 5 December 2007.
44 Devenish Nutrition Ltd & Ors v Sanofi-Aventis SA (France) & Ors [2007] EWHC 2394 (Ch).
45 Bookmakers’ Afternoon Greyhound Services Ltd and others v Amalgamated Racing Ltd and others [2008] EWHC 1978 (Ch).
46 Calor Gas Ltd v Express Fuels (Scotland) Ltd and another [2008] CSOH 13.
47 Football Association Premier League Ltd and others v QC Leisure (a trading name) and others [2008] EWHC 1411 (Ch) [NB there was a summary judgment on 18 January 2008 – The Football Association Premier League Ltd v Qc Leisure and others [2008] EWHC 44 (Ch). The full judgment was laid down on 24 June 2008].
48 Attheraces Ltd and another v The British Horseracing Board Ltd and another, [2007] EWCA Civ 38.
49 Virgin Media Communications Ltd and others v British Sky Broadcasting Group plc and another (ongoing).
50 See OFT consultation document at www.oft.gov.uk/shared_oft/consultations/oft955con.pdf. As an example of this outcome-focused approach, the OFT’s annual report for 2007–8 estimates that its competition enforcement activities saved consumers £77 million in its last financial year, not including further savings of £115 million delivered by its merger control activities – see www.oft.gov.uk/news/press/2008/85-08.
51 The deterrent effect of enforcement by the OFT – a report prepared for the OFT by Deloitte, published at www.oft.gov.uk/shared_oft/reports/Evaluating-OFTs-work/oft962.pdf.
52 See, for example, the OFT’s 2007 discussion paper on private actions in competition law, published together with third party responses at www.oft.gov.uk/advice_and_resources/resource_base/consultations/private, which led to a paper setting out the OFT’s Recommendations to Government, published in November 2007 at www.oft.gov.uk/shared_oft/reports/comp_policy/oft916resp.pdf.

An extract from The European Antitrust Review 2009