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OCTOBER 2013
Legal Focus
65
Competition and antitrust law is of course an integral part of the business world, ensuring fair competition between competitors and guarding against one company dominating the market, and therefore limiting the choice and variety that the market is offered.
D
evelopments over recent years within competition law in the UK include the decision of the Office of Fair Trading (OFT) in October 2012 to set out new
decision-making processes and procedural enhancements to boost the speed and robustness of Competition Act 1998 (CA98) investigations and increase engagement with parties involved.
The updated guidance on CA98 procedures follows a consultation process launched in March 2012. It updates the OFT's guidance originally published in March 2011, including by providing for: • Collective decision-making, with final decisions on infringement and penalty to be taken by a three person 'case decision group'.
• In cases where the OFT is considering finding an infringement and imposing a financial penalty, the ability for parties to make representations on key elements of the OFT's proposed penalty calculation, after they have made representations on matters of substance, but ahead of the final decision being taken.
•More interactive oral hearings, to provide greater opportunity for direct dialogue between parties to an investigation and the decision-makers on the case, as well as additional 'state of play' meetings.
• Publishing case opening notices and case-specific administrative timetables on the OFT's website to improve transparency of ongoing CA98 investigations.
As part of the follow up from its March consultation, the OFT is also extending the trial of its Procedural Adjudicator role until the OFT's CA98 enforcement powers transfer to the Competition and Markets Authority (CMA) in April 2014. It believes that its trial of a Procedural Adjudicator role, which started in March 2011, has been a success to date, resolving disputes in relation to certain procedural issues in a swift, efficient and cost-effective manner.
As well as complex regulatory frameworks with regular reforms such as this to contend with, there is also the tricky subject of enforcing competition judgements and rules, especially when there are cross-border factors to be considered.
A recent high-profile example of this is software giant, Microsoft’s, failure to fulfil promises it made three years ago to offer consumers a choice of browsers, a failure which landed the company in hot water with the EU. Commenting on this, EU Competition Commissioner Joaquin Almunia said that companies must carry out what they have promised to do “or face the consequences.” He also warned that “companies should be deterred from any temptation to renege on promises or even to neglect their duty."
Over the next few pages, Lawyer Monthly takes a look at the broader surrounding Antitrust Law around the world, by speaking to two experienced professionals highly skilled in this practice area. LM