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.
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.
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,
- Sharon Horwitz, Director of Sector Regulation at the CMA,
- Deborah Jones, head of competition enforcement at the FCA,
- Tony Curzon-Price, economic advisor to the Secretary of State for Industrial Strategy
- Gary Gillespie, Chief Economist to the Scottish Government,
- 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,
- Stuart Clarke, Director of Legal Services at Scottish Enterprise, and
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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
This seminar considered how competition law can be utilised in overseas markets, in particular the use of competition law as a market access tool in regulated sectors or, in the case of developing markets, where there is an absence of regulation. This issue was considered from the perspective of both European markets (in particular France and Germany) and also in relation to markets further afield, with a particular focus on India.
Our guest speakers were:
- Frederic Dupas, head of competition law at BT Global Services.
- Gopal Jain, senior advocate.
- Gordon Moir, Shepherd & Wedderburn
Peter Freeman QC, Chairman of the Competition Appeal Tribunal, joined us to discuss the CAT’s powers of review. The CAT can in some areas review on the merits and in others only on a JR basis. In 2014, the government considered restricting the current merits jurisdiction, although this proposal appeared to have been dropped by the time of the Triennial Review in September.
The availability of a full merits review has been criticised on the grounds that it is argued to allow parties to withhold information from the CMA or other authority, in the expectation that the CAT will give the matter a full hearing. On the other hand, is it not right and proper that a party upon whom a significant fine is imposed should have a full hearing, with cross examination of witnesses and all the disciplines that that brings along with it in terms of judicial decision-making?