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

On Thursday 7 December 2017, the Scottish Competition Forum is holding 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.

You can register to attend this event here.

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 must be published by 1 December, and will make recommendations on how these and other issues might be addressed.

The Scottish Competition Forum is delighted to announce that our next event will be on the care sector market study, and will follow hot on the heels of the CMA’s final report. Douglas Cooper, the CMA’s Project Director on the study, will present on the report’s conclusions and recommendations, and answer audience questions about what they might mean for the future of the sector.

The audience will also hear from other speakers who will offer their perspectives on the CMA’s conclusions and the sector generally, including:

  • 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?

This one-off event will offer a unique opportunity for those in and around the care sector to understand, query and challenge the CMA’s findings, and hear from senior figures in the sector about the future of care in Scotland.

The event will take place on Thursday 7 December 2017 at the offices of Brodies LLP, 110 Queen Street, Glasgow. Registration and networking will take place between 17:00 and 17:30 with the event itself running from 17:30 to 19:00, followed by an opportunity to discuss the issues over drinks. We do hope you will be able to join us.

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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.

 

SCF Event – The Scottish Government’s Competition and Consumer Policy, 23 June 2016

At this SCF Lite event we discussed recent developments in the Scottish competition and consumer law landscape with representatives of the Scottish Government’s Consumer and Competition Policy Unit.

Under the Scotland Act 2016 the Scottish Parliament and the Scottish Government gained a variety of new powers in respect of competition and consumer policy. In particular, consumer advocacy and advice has now been devolved and the Scottish Government have a new power to act with the UK Secretary of State, in certain circumstances, to refer a market for investigation by the Competition and Markets Authority (CMA). The devolution of the management and operation of all reserved tribunals (e.g. the CAT) also opens up the possibility of a devolved CAT applying a distinctive Scottish approach in competition litigation.

The Scottish Government has started a process of engaging with stakeholders to develop a ‘Consumer and Competition Strategy for Scotland’ to ensure these new powers are used effectively.  This follows on from the work undertaken by the independent Working Group on Consumer and Competition Policy for Scotland, which published a report on the best arrangements for consumer protection and competition in Scotland which the Scottish Government have subsequently responded to.

There were two broad parts to this seminar. The first was focused on developments in consumer and competition policy in Scotland, in particular the aims of the Scottish Government and of its new “Consumer Scotland” body, the benefits the Scottish Government sees for consumers and businesses, and how it intends to tailor competition policy at a devolved level to focus on those issues that cause disproportionate detriment to Scottish consumers. The second session looked at the devolution of the CAT – and the options for change after devolution.

Our panel consisted of:

  • Chair: John Schmidt, Partner in the Regulation and Markets Team at Shepherd and Wedderburn LLP
  • Sheena Brown, Head of Consumer and Competition Policy Unit at the Scottish Government
  • Lorraine King, Head of Competition Policy at the Scottish Government.

 

Welcome to the SCF website!

The Scottish Competition Forum brings together those with an interest in competition law and policy for topical discussion and debate. It is run in Scotland on a non profit-making basis and membership is free.

We host a number of events each year, alternating between Edinburgh and Glasgow, on a diverse range of topics of relevance to lawyers, businesses, economists, academics and students, and anyone else with an interest in effective competition in Scotland. Recent topics of discussion have included collective redress under the Consumer Rights Act 2015, risks and opportunities in overseas markets, and judicial review vs review “on the merits”.

Recent guest speakers have included:

  • Alex Chisholm, as Chief Executive of the CMA,
  • Professor Ariel Ezrachi, Slaughter & May Professor in Competition Law at Oxford University and a fellow of Pembroke College,
  • Andreas Stephan, Professor of Competition Law at the University of East Anglia
  • Albert Sanchez-Graells, Reader in Economic Law at the University of Bristol Law School and blogger on procurement and EU law at www.howtocrackanut.com
  • Peter Freeman QC, Chairman of the Competition Appeal Tribunal,
  • Frederic Dupas, head of competition law at BT Global Services,
  • Stuart Clarke, Director of Legal Services at Scottish Enterprise, and
  • Rameen Naylor-Ghobadian, barrister and legal lead on private actions reform at the Department for Business, Innovation and Skills

You can sign up to our mailing list by clicking here.

You can find out more about the SCF on our About Us page.

SCF Event – Collective Redress under the Consumer Rights Act 2015, 7 October 2015

This seminar considered the potential for opt-out collective actions in competition cases and the new powers of the Competition Appeal Tribunal. In particular:

  • How the changes will affect Scottish consumers and Scottish companies and how they will complement broader developments in consumer protection from anti-competitive practices
  • Whether the new regime will result in significant growth in collective actions on behalf of consumers and whether the CAT will embrace and encourage opt-out claims
  • How these actions will be organised, by whom, and the options for funding them
  • What can we learn from other countries in the EU such as the Netherlands?

Our speakers were:

  • Rameen Naylor-Ghobadian, barrister and legal lead on private actions reform at the Department for Business, Innovation and Skills.
  • Catriona Munro, Partner, Maclay Murray & Spens
  • Kate Wellington, Senior In-House Lawyer at consumer champion Which?
  • Marc Kuijper, BOEKEL
  • James Blick, Director of TheJudge