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32


Legal Expert Board


JULY 2013


Antitrust legislation and enforcement


Throughout 2012 legislative developments and antitrust enforcement was high on the agenda for regulators globally. With some jurisdictions opting to take a different approach to antitrust enforcement and with increasing levels of cooperation between authorities, the complexities facing multinational companies has magnified. To find out more, we speak to Anthony Maton from Hausfeld & Co LLP.


What are the key cases you deal with related to anti-trust law?


Hausfeld & Co LLP is a leading, claimant focused litigation practice, based in the City of London. We specialise in Competition / Antitrust, Financial Services, Consumer and Human Rights law, very often with an international dimension. Key cases we are currently instructed on are Paraffin Wax against defendants Shell & Exxon Mobil; Air Cargo against British Airways; and litigation against MasterCard regarding interchange fees. In relation to Air Cargo we act for over 300 companies, ranging from owner managed business through to global branded companies.


According to recent reports, 2012 was a record year for criminal fines handed out by antitrust authorities around the world. to what do you attribute this?


Despite the European Commission (“Commission”) only issuing three cartel decisions between April 2012 and April 2013, last year saw the imposition of the largest total fine in a single case for Cathode Ray Tubes. In that case seven companies were fined almost EUR1,5 billion. This huge fine brought the total


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amount levied in the EU for that year to pre-financial crisis levels and more than tripled the total from 2011.


The Commission called this “among the most organised cartels” that it had ever investigated and demonstrated the “worst kinds of anti-competitive behaviour”. This was a worldwide cartel of 10 years duration involving some of the largest players in this particular sector. The Commission’s fines are determined by a number of factors, but most importantly in this case take into account the annual turnover of a cartelist.


In the US last year two of the largest fines were recorded in antitrust investigations. The TFT-LCD panel investigation resulted in the largest fine imposed by the Department of Justice (“DOJ”) at $500 million for AU Optronics Corporation and the auto parts industry investigation resulted in the third largest fine of $470 million for Yazaki Corporation. Here the DOJ noted that auto parts investigation was the “largest criminal investigation the antitrust division had ever pursued” due to the size of the industry affected and the size of the companies involved. Again, when calculating a fine the DOJ took into account the cartelist’s annual turnover.


There is a clear correlation between annual turnover of the cartelists involved and the record fines levied by the various competition authorities around the world last year. These records may not necessarily be pure coincidence though as - to turn the focus back on Europe - the Commission explains in its annual report that last year it focused investigations on particular sectors of “systemic and cross-cutting importance to the EU economy” which included financial services, key network industries such as the postal services and technology markets. Major corporations are an inherent part of the structure of such industries and highlight the Commission’s no-holds barred approach to imposing fines for anti competitive behaviour whatever the figure.


What, if any, developments have affected, or will affect, the antitrust and competition regime in your jurisdiction?


On 12 June this year the UK Government published its’ draft Consumer Rights Bill. Focusing on the competition law aspects the Bill makes significant changes to the Competition Act 1998 and the Enterprise Act 2002.


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