Upcoming SCF Event – Competition enforcement: use of competition powers by the CMA and sector regulators

On Tuesday 5 June the Scottish Competition Forum and CMS will host an event in Edinburgh on competition enforcement by the CMA and sector regulators. You can register to attend this event here.

On 30 April, the CMA published its annual concurrency report.  The report looks back at the fourth year of the concurrency regime highlighting a “step change” in the relationships that have developed between the CMA and the sector regulators.  Almost every sector regulator has now launched at least one Competition Act investigation and the CMA and the sector regulators have undertaken significant market investigations work, often alongside use of their sector-specific regulatory powers.

In this seminar we will look at the use of competition powers by the CMA and the sector regulators.  Chaired by Graeme Young, competition partner at CMS, we will hear from:

  • Sharon Horowitz, Director, Sector Regulation Unit at the Competition and Markets Authority
  • Deborah Jones, Director of Competition at Financial Conduct Authority
  • Mark Mills, Principal Legal Advisor at Ofgem

We will consider the Competition Act cases and markets work that have been taken on by the sector regulators over the last four years, the interplay between market investigation powers and Competition Act enforcement, and the sector regulators’ use of competition powers alongside their regulatory enforcement powers.

The event will begin at 5.30 with registration from 5pm, and will conclude at 7pm with the opportunity for further discussion over drinks.

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Upcoming SCF Lite Event – Co-operation and information sharing between competition authorities in the context of global competition law enforcement in post-Brexit world

On Thursday 14 June 2018, the Scottish Competition Forum, Edinburgh University Law School and Shepherd and Wedderburn LLP will host a series of discussions with leading academics and practitioners to explore the legal tools (and their limitations) available to competition authorities and market regulators across the globe to cooperate in their efforts to enforce competition laws.

You can register to attend this here.

Cooperation and information sharing between the antitrust authorities is frequent, is on a rise and is viewed as an essential tool for the enforcement of competition rules in today’s global economy where competition law breaches and global mergers often transcend jurisdictional borders.

In particular, the discussion will address options that may be available to the UK following its departure from the European Union (EU), and as a consequence the likely exit of the UK Competition and Market Authority (CMA) from the European Competition Network (ECN). The EU Commission has a wide-range of bilateral arrangements with non-EU Member States – ranging from soft tools such as Memorandum of Understanding – through to comprehensive, the so-called “second generation”, agreements that allow for some exchange of confidential information for example one in force with Switzerland and currently under negotiation with Japan. The discussion will explore the benefits and pitfalls of various options that may be available to the UK.

The Scottish Competition Forum will host a lunchtime roundtable from 12:00 to 14:00, featuring:

  • Gordon Downie, Partner, Regulation and Markets, Shepherd and Wedderburn LLP
  • Wilko Van Weert, Partner, McDermott, Will and Emery LLP
  • Professor Jörg Philipp Terhechte, University of Lüneburg and University of Glasgow

Lunch will be provided. Spaces are very limited so register now to avoid disappointment!

Upcoming SCF Event – What does the Government’s industrial strategy mean for competition policy?

Update – change of panel

The Scottish Competition Forum is holding an event on industrial strategy on Tuesday 15 May 2018.

You can register to attend this event here.

An Industrial Strategy was set out by the UK Government as a White Paper at the end of November 2017, with its stated purpose ‘to improve living standards and economic growth by increasing productivity and driving growth across the whole country’. In the strategy the Government sets out its vision for how Britain can build on its economic strengths, address its productivity performance, embrace technological change and boost the earning power of people across the UK.

So far, so good. But how does Government make sure that an industrial strategy does not distort competition on the market by favouring some firms over others? And can competition policy address the productivity challenges that the Government’s industrial strategy seeks to address? At this SCF event, hosted by Dentons, speakers from the UK and Scottish Governments will discuss these questions with competition lawyers, economists and industry.

Panel:

  • Catriona Munro, Partner, Competition, Dentons UKME LLP (Chair)
  • Tony Curzon Price, Economic Advisor to the Secretary of State for Business, Energy and Industrial Strategy
  • Gary Gillespie, Chief Economist, Scottish Government
  • Robin Noble, Partner, Oxera

The event will start at 6pm, with registration from 5.30, and will be followed by a drinks reception.

SCF Event – What does the future hold for the care sector in Scotland?

On Thursday 7 December 2017, the Scottish Competition Forum and Brodies LLP hosted an event to discuss the CMA’s study of the care homes market and the application of competition and consumer law in this sector of the economy.

The Competition & Markets Authority has been studying the care homes market. Its initial findings flagged potential concerns including how competition operates in the sector, the compliance of some care homes with consumer protection law, and the sector’s ability to attract enough investment to cope with rising demand. The CMA’s final report was published at the end of November, with recommendations on how these and other issues might be addressed.

Following hot on the heels of the CMA’s final report, the SCF held an event on the care sector market study, with Douglas Cooper, the CMA’s Project Director on the study, presenting on the report’s conclusions and recommendations, and answering audience questions about what they might mean for the future of the sector. We were also joined by three other speakers offering their perspectives on the CMA’s conclusions and the sector generally:

  • Dr Donald Macaskill, chief executive of Scottish Care;
  • Paula McLeay, Chief Officer for Health and Social Care at COSLA; and
  • Eva Groeneveld, Head of Public Affairs Scotland at the consumer body Which?

 

SCF Event – Unfair competition from the public sector in commercial markets: crowding out and state aid after Brexit

On Thursday 7 September 2017, the Scottish Competition Forum welcomed attendees to a discussion on the regulation of intervention by the public sector in commercial markets.

Governmental bodies of all political stripes, and at all levels, intervene in various markets from time to time, either through funding, procurement or active involvement. Often these interventions, and their displacement of or effect on other economic activities, are thought through and deliberate – investing in certain geographic areas or technologies for example.

Other times they are incidental: the state funds community activities that crowd out small businesses; it may subsidise public activities (such as gyms and libraries) for social purposes which compete with private enterprises; and municipal businesses, so-called “ALEOs” (Arm’s Length External Organisations), fall under local authority control but can qualify for charitable status, can be favoured by public procurement processes, and can directly compete for private customers for up to 20% of their revenue.

In this seminar we considered the regulation of state activity in commercial markets in Scotland and whether Scotland (or the UK as a whole) would benefit from laws, such as those in place in some other countries, to provide transparency and remedies. EU state aid rules are absent below relevant thresholds and may disappear post-Brexit. What will replace them?

Our final line-up of speakers was:

  • Chair: Michael Dean, Head of EU, Competition and Regulatory and Partner at Maclay Murray & Spens LLP
  • Dr Albert Sanchez Graells, Reader in Economic Law at the University of Bristol Law School and a specialist in competition law and public procurement
  • Anna Palmerus, a leading Swedish competition lawyer with experience of Swedish laws regulating when the state is unfairly competing with private business
  • Peter Sellar, an advocate specialising in all aspects of EU law, who has appeared before Scottish and EU courts and was formerly Head of Competition and Regulatory law for the Insurance Division of Lloyds Banking Group.
  • Stuart Clarke, Director of Legal Services at Scottish Enterprise.

SCF Event – Can competition law effectively regulate disruptive technologies and innovation?

On Thursday 15 June 2017, the Scottish Competition Forum and Edinburgh University’s Europa Institute hosted a discussion with some leading academics on how competition law and policy has developed to address perceived anti-competitive practices resulting from the use of new disruptive technologies and business models.Can competion law effectively regulate disruptive technologies_

Microsoft, Google, Apple, Amazon, Ebay, Intel, Uber: there is an endless list of technology-based companies that have developed new products and services that have revolutionised markets and the way we buy and sell goods and services.  Innovation and technology are generally seen as positive and “pro-competitive”, generating economic growth and jobs, but equally they can also manifest themselves in ways that distort competition, lead to positions of market power and raise consumer protection issues.  In a world of open and borderless markets, do individual Governments and competition authorities have the tools to regulate disruptive innovation?  What degree of regulation is required?  How has EU competition law and policy developed to meet this challenge?  How might this all change following Brexit?

The panel,  chaired by Graeme Young, EU & Competition Partner at CMS Cameron McKenna, included:

  • Professor Ariel Ezrachi, University of Oxford: Ariel Ezrachi is Slaughter & May Professor in Competition Law and a fellow of Pembroke College, Oxford. He has published widely in the field of competition law and has recently published with Maurice Stucke “Virtual Competition – The Promise and Perils of the Algorithm-Driven Economy”.
  • Professor Maurice Stucke, University of Tennessee and University of Oxford: Maurice Stucke is Professor of Law at the University of Tennessee and co-founder of KonkurrenzGroup.
  • Dr Stephen Dnes, Dundee Law School, University of Dundee: Dr Dnes has worked extensively in the area of substantive competition law and written on the impact of competition law on digital markets.
  • Dr Pablo Ibanez Colomo, Dept. of Law, London School of Economics: Dr Ibanez Colomo has published widely in the field of competition law and conducted ground-breaking research on the question of how the competition rules can be interpreted to “fit” with innovation patterns.
  • Dr Francesco De Cecco, Newcastle Law School, University of Newcastle. Dr De Cecco is a specialist in state aid law and has authored, among other words, the monograph “State Aid and the economic constitution” (2013, E Elgar).
  • Dr Arianna Andreangeli, Edinburgh Law School, University of Edinburgh. Dr Andreangeli has published several articles exploring the interaction between competition and innovation and is now investigating questions of brand image, commercial speech and public interest.

 

SCF Event – Competition Law and Big Data

On Thursday 23 February 2017 the SCF and the University of Glasgow hosted an event on the theme of big data.

Data we generate is collected on a prolific basis and has tremendous commercial value. The holding and exploitation of big data may allow firms to exploit efficiencies in the flows of goods and services, to target advertising and promotions more effectively and to offer enhanced consumer experiences. However, entry into markets in which big data features may be difficult for new firms and holders of big data may be able unfairly to exploit their knowledge of consumer preferences.

The speakers were:

  • Dr Florence Thepot, University of Glasgow, Chair;
  • Peter Willis, Partner, Bird & Bird, speaking on ‘Competition law and big data’ – view slides;
  • Natalie Timan, Competition and Markets Authority, speaking on observations on big data from an economics perspective – view slides;
  • Professor Peter Triantafillou, University of Glasgow, speaking on the industrial use and value of big data – view slides.

 

SCF Event – Brexit: Roundtable on Impacts on Competition Law and Policy

On Tuesday 15 November 2016 the SCF hosted a Lite roundtable event on the impacts of Brexit on competition law and policy.

Current UK competition law and policy is modelled on that of the EU.  The central objective of EU competition law is to ensure undistorted competition within the EU Single Market.  Whilst Brexit is unlikely to require a wholesale re-write of UK competition law, it will require significant amendment both to the primary and secondary legislation and to the accompanying procedural rules and guidance.  It is also likely to have a significant impact on enforcement activity, both in terms of investigations by the competition authorities and on private competition litigation before the UK courts.

In this SCF-Lite session competition law experts discussed five key areas:

  • Anti-trust enforcement
  • Merger control
  • Market studies and investigations
  • Private competition litigation
  • State aid

We hope to publish a paper on this discussion shortly.

SCF Event – Competition in the banking and financial sector, 2 years on – 13 October 2016

 

On 13 October 2016 the Scottish Competition Forum was joined by Dr Heather Gibson (Director-Adviser at the Bank of Greece), Colin Garland (Director of Remedies at the CMA) and Alistair Haig (from the University of Edinburgh Business School) for a discussion on competition in the banking and financial sector.

Two years ago in May 2014 the Scottish Competition Forum, in partnership with the Europa Institute, held an event on the challenges and possibilities of competition law and policy in the banking and financial industry. At the time, the sector was still being seriously challenged by the aftermath of the 2008 of the financial crisis; it was also characterised by significant concentration, due to a number of important mergers that had been allowed to go ahead mainly for the purpose of protecting the integrity of the banking system. In addition, the then recent LIBOR scandal had unveiled very serious instances of cartel behaviour affecting very important interest rates, upon which much of the trade in currency and bonds revolves.

Two years on, these issues remain extremely relevant. While recent branch divestitures in the United Kingdom seem to have lessened the degree of concentration characterising the retail banking sector, significant questions remain unanswered as regards the stability of certain banks: recent stress tests have indicated that capital levels can still fall short of what is seen as “acceptable” by economists and regulators. Rivalry as regards retail banking services remains relatively limited, with customers being reluctant to “shop around”: in this respect the CMA’s review of retail banking has indicated that the established banks do not compete “hard enough” for consumers and has therefore called for a number of measures to be introduced to boost the ability and willingness of customers to switch to competitors. The CMA has also advocated for more objective and transparent information to be shared across the banking market, so that consumers can make informed decisions, on the one hand, and banks, especially new entrants and smaller ones, on the other hand, can use new technology to improve their offer of products and services to the public.

Banking and financial regulators have also cast light on the degree of competition characterising markets for “allied” services, such as, among others, information services that allow investment banking providers to operate efficiently, calling for greater rivalry to be ensured.

This session focused on what can be done in light of the state of the industry. Is it correct to look at banking as “any other industry”, and therefore deal with these problems on the basis of “traditional” competition assessment patterns? How can the antitrust scrutiny of banking practices take into account concerns for stability without enjoining genuine rivalry based on product quality? To what extent can innovation in services’ provision act as a means of boosting competition in sectors allied to the financial industry, so that certain services, especially linked to investment banking, can be provided efficiently and with due consideration for consumer protection? And “what about Scotland”? Due to the importance of the banking and financial industry for the Scottish economy, what are the current implications of this state of affairs for growth and productivity in Edinburgh, Glasgow and beyond?

 

SCF Event – Brexit: What next for competition policy? 25 August 2016

At this SCF event we welcomed over 70 attendees to the offices of MMS in Edinburgh’s Quartermile to discuss the implications of Brexit – and what comes next – for competition in Scotland.

Dr Tobias Lock, lecturer in EU Law and co-director of the Europa Institute at the University of Edinburgh, talked the audience through the Article 50 process and the options for the UK’s relationship with the EU post-Brexit. His presentation also touched on what parts of UK law would – and would not – be affected.

Professor Andreas Stephan from the University of East Anglia then gave a presentation on the implications of all of this for competition law specifically. Much will depend on the relationship the UK has with the EU in the future, but there is unlikely to be substantial change to the substantive law on competition issues, both because the principles are embedded and consistency with the EU assists with legal certainty. There may, however, be further uncertainty surrounding the UK government’s new approach to industrial strategy.

Peter Freeman QC, Chairman of the Competition Appeal Tribunal, discussed the implications for private enforcement of competition law – jurisdiction, choice of law and the Brussels and Lugano conventions. The major uncertainty going forward is likely to be the UK’s attractiveness and convenience as a forum for bringing private damages actions.

Michael Dean, partner and head of the EU, competition and regulatory department at Maclay Murray & Spens LLP, rounded off the event with a presentation focused on the public enforcement of competition law. Brexit will undoubtedly complicate matters,not least in relation to legal privilege, though the more immediate concern may be the need to do some “nation building” in the UK, as policy and enforcement bodies scale up to meet the challenges of performing roles that the EU has held for over four decades.

The event, as ever, ended with a spirited and lively discussion and an informal wine reception.