JANUARY 2013

Legal Focus

accordance with the Enterprise and Regulatory Reform Bill.

With respect to the wider reforms alluded to in your question, it is important to refer to those proposed in the recent consultation from the Department for Business Innovation & Skills (BIS). BIS’s aim is to encourage private-sector led challenges to anti-competitive behaviour, which in turn will complement the UK’s public competition regime. The areas covered by the BIS consultation are:

• the introduction of an opt-out collective actions regime for competition law,

• the protection of whistleblowers and leniency recipients, AND,

• the promotion of alternative dispute resolution (ADR) and the rules relating to the Competition Appeal Tribunal (CAT), with the aim of encouraging more claims to be filed there.

Regarding the CAT, the changes being proposed by the Government would bring the CAT in line with the practice in the High Court – these include allowing claimants to file stand-alone claims before the CAT, empowering the CAT to issue injunctions and the implementation of section 16 of the Enterprise Act 2002, which would allow the High Court to transfer claims to the CAT. The consultation also proposes the introduction of a fast-track model for SMEs: this would be cheaper as there would be no or limited court fees and costs would be capped, and quicker as cases would be heard within six months of being accepted and limited to a two-day trial. SMEs will also benefit from CAT’s power to swiftly grant interim injunctions.

Have there been any recent cases that have had an impact on competition enforcement in the UK? If so, please explain.

There are indeed a few recent judgments that have been well received by claimants such as: (1) the Deutsche Bahn1

decision where the

Court of Appeal held that the two year limitation period under Rule 31 of the CAT Rules does not begin to run against any addressee until the time for appealing against the Commission’s decision has expired against all of them; (2) the Cardiff Bus2

case where the CAT

for the first time awarded exemplary damages for breach of competition law; and (3) the Industrial Tubes3

(Toshiba) case where the Court

of Appeal decided that the English subsidiary of KME, one of the cartel members, could be "used" as an anchor defendant by the claimants, even though the subsidiary itself had not been identified as a member of the cartel by the European Commission – a further confirmation of the long arm of English jurisdiction in these cases.

These judgments are a further endorsement of the pragmatic approach which the English Courts have adopted in favour of claimants in cartel damages actions.

Is there anything else you would like to add that you feel our readers may be interested in?

Proper & fair competition enforcement is critical for all companies – both for those caught on the wrong side of the line who want the investigation & following action to be dealt with appropriately & for those who have suffered damage as a result any infringement who want to be able to enforce their rights in a sensible & pragmatic manner. Ultimately, an effective private actions system would help complement the public enforcement regime. The combined effect of the proposed OFT reforms, alongside the BIS consultation, and clarification of key legal issues in the recent case law, should significantly address inefficiencies and realign imbalances which will in turn strengthen the private actions system and overall, improve the antitrust system in the UK.

We look forward to the successful implementation of these rules and any forthcoming reforms which will benefit victims of anticompetitive behaviour. We also look forward to working with enforcers and regulators and will continue through our casework and observations to support consumers and SMEs to access affordable and effective collective redress mechanisms. LM

contact details:

53

anthony Maton Hausfeld & co. LLP 12 Gough Square London Ec4a 3dW

tel: 0207 665 5000 Web: www.hausfeldllp.co.uk

1 2 3

Deutsche Bahn AG & Ors v Morgan Crucible Company Plc & Ors [2012] EWCA Civ 1055.

Travel Group Plc (in liquidation) v Cardiff City Transport Services Ltd [2012] CAT 19.

KME Yorkshire Ltd & Ors v Toshiba Carrier UK Ltd & Ors [2012] EWCA Civ 1190.

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