Competition Magazine Issue 9: In The Fast Lane: Q2’s Competition Law and Litigation Update
INTRODUCTION CONTENTS
“You
have competition every day
because
you set such high standards for yourself
that
you have to go out every day and live up to that.”
-
Michael Jordan
We are delighted to present Issue 9 of the TL4 Competition magazine, our second edition of 2025: In The Fast Lane: Competition Law & Litigation Update. Delving into the ever changing landscape of law and litigation, this edition navigates countless unique topics and covers a range of jurisdictions. We would like to thank our valued Corporate Partners and those who have contributed to this edition. We hope that you enjoy reading Issue 9 of the magazine.
ThoughtLeaders4 Competition Team
Peter Miles Head of Event Production & Community
Alexander Edgal Conference Producer Associate 020 3998 9752 email Alexander
Helen Berwick Commercial Director Competition 0203 433 2281
email Helen
Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545 email Maddi
7101 4151
Paul Barford Founder/ Managing Director 0203 398 8510 email Paul
Maria Rosaria Raspanti, Pavia e Ansaldo Studio Legale
Chris Ford, Blackhawk
James Harvey, Economic Insight
Ian Thompson, Economic Insight
Aastha Mantri, Economic Insight
Adam Bradley, Travers Smith
Moya Clifford, Hill Dickinson
Simone Gambuto, Silvia Romanò
Christopher Garvey, Sachenga & Co.
Upcoming Events
The CMA Consumer Protection and Enforcement Regime Summit 22 May 2025 | The Dilly, London
The Competition Collective Actions Forum 2025 - 3rd Annual 5 June 2025 | One Whitehall Place, London
The UK Competition Law Summit 2025 - 2nd Annual 19 June 2025 | The Dilly, London
Competition Law & Litigation Summer School 1 - 2 September 2025 | King's College, Cambridge
The UK Digital Markets Competition Regulation Forum 2025 - 3rd Annual 23 September | Central London
The EU Competition Law Public Enforcement Summit 2025 30 September 2025 | Brussels, Belgium
The Nordic Competition Law Summit 2025 14 - 15 October 2025 | Copenhagen, Denmark
The Merger Control Forum 2025 4 November 2025 | Central London
The EU Competition Private Enforcement Forum 2025 November 2025 | Amsterdam, Netherlands
Competition Law and Ai Summit 2025 December 2025 | Central London
Irish Competition Law Summit 2025 December 2025 | Dublin, Ireland
The EU Digital Markets Regulation 2026 March 2026 | Brussels, Belgium
COMPETITION NEXT GEN: DUBLIN 2025
In February we had an incredible three days at The Competition Next Gen Summit 2025 in Dublin!
The summit was filled with engaging panel sessions led by our expert faculty, offering plenty of opportunity for lively discussions. The summit ended on a high note with a networking lunch, capping off an exceptional event.
We would also like to take this opportunity to once again thank our amazing Advisory Board for opening and closing another successful event.
We would also like to thank all of our event partners for helping to make this all possible.
PASS-ON IN COMPETITION LITIGATION
Towards the end of February, we were joined by AlixPartners in hosting ‘Pass-On In Competition Litigation: Lessons Learnt and Way Forward’, a panel discussion followed by drinks reception at AlixPartners’ offices.
CELEBRATING 25 YEARS OF THE COMPETITION ACT
In March we hosted an incredible afternoon at Celebrating 25 Years Of The Competition Act: Reflections, Achievements, and Future Challenges! A huge thank you to everyone who joined us at Thistle London Marble Arch Hotel.
We were privileged to hear from Sir John Vickers (University of Oxford) as he delivered a compelling keynote on ‘Reflections On The First Five Years.’
This set the stage for two engaging panels with both retrospective and forward-looking perspectives.
What a great turnout it was - an excellent chance to engage in insightful content and network with new contacts. Many thanks to AlixPartners for hosting!
2025 marks the 25th anniversary of the Competition Act. Having played a critical role in promoting fair competition and preventing abuse of dominance, the Competition Act serves as the touchstone of modern competition regulation in the United Kingdom.
We’re looking forward to continuing the conversation ‒until next time!
EXCLUSIONARY ABUSES UNDER ARTICLE 102: WHAT ABOUT THE CONSUMER?
Introduction
The European Commission’s (EC’s) 2024 draft guidelines on exclusionary abuses of dominance1 were intended to ‘help increase legal certainty’2 regarding the EC’s approach to exclusionary abuses. However, these draft guidelines may have raised as many questions as they answer. Responses by competition practitioners to the consultation on the guidelines have raised a number of questions and concerns including:
• an apparent reversion from an effectsfocussed approach to what appears to be a more ‘form-based’ approach;3
• a potential move away from the asefficient competitor principle;4
• the emphasis on presumptions of harm and, in practice, their general applicability;5
• lack of clarity around what, precisely, competition on the merits is or is not;6
• a lack of safe harbours in the current draft guidelines.7
At one level, it should be noted that guidelines differ in their purpose from the EC’s previous prioritisation guidance,8 with the latter also encompassing the EC’s views as to case prioritisation and competition policy. Guidelines clearly need to focus on legal standards, and (ideally) the role of economic evidence in assessing whether these standards are met. Crucially, guidelines should set out clearly how consumer welfare9 should in practice be incorporated into investigations of exclusionary abuse.
3 RBB Economics (2024), ‘The EC’s Draft Guidelines on the application of Article 102 TFEU - Response by RBB Economics to the EC consultation’, 31 October, p. 3
4 Berkeley Research Group (2024), ‘Response to the European Commission’s public consultation on the Draft Guidelines on the application of Article 102 TFEU to exclusionary conduct’, 14 November, pp. 5-6; and Freshfields (2024), ‘GUIDELINES ON THE APPLICATION OF ARTICLE 102 TFEU TO ABUSIVE EXCLUSIONARY CONDUCTOBSERVATIONS IN THE CONTEXT OF THE COMMISSION’S PUBLIC CONSULTATION’, 31 October, pp. 17 – 20.
5 Berkeley Research Group (2024), ‘Response to the European Commission’s public consultation on the Draft Guidelines on the application of Article 102 TFEU to exclusionary conduct’, 14 November, p. 4; and A&O Shearman (2024), ‘PUBLIC CONSULTATION ON THE DRAFT GUIDELINES ON THE APPLICATION OF ARTICLE 102 TO ABUSIVE EXCLUSIONARY CONDUCT BY DOMINANT UNDERTAKINGS CONSULTATION RESPONSE’, 8 November, pp. 4-5.
6 Oxera (2024), ‘European Commission Draft Guidelines on Exclusionary Abuse under Article 102 - Oxera Response to the Public Consultation’, 31 October, pp. 29-30; and A&O Shearman (2024), ‘PUBLIC CONSULTATION ON THE DRAFT GUIDELINES ON THE APPLICATION OF ARTICLE 102 TO ABUSIVE EXCLUSIONARY CONDUCT BY DOMINANT UNDERTAKINGS CONSULTATION RESPONSE’, 8 November, pp. 3-4.
7 Oxera (2024), ‘European Commission Draft Guidelines on Exclusionary Abuse under Article 102 - Oxera Response to the Public Consultation’, 31 October, pp. 21-22, 35; Draghi Report, Part B, p. 304
The 2024 draft guidelines explicitly consider a wide range of potentially exclusionary conduct, and there is thus no explicit indication from the draft guidelines of what sectors may be the focus of future cases.
Types Of Conduct
The draft guidelines list a number of categories of conduct, specifying where a precedent-based legal test exists, and also where the EC would have a presumption of harm: this is summarised in Table 1 below.
Table 1 Categories of conduct in the EC’s draft guidelines
Category of conduct Subject to a legal test? Presumption of harm?
Exclusive dealing
Predatory pricing
Tying and bundling
Margin squeeze
Refusal to supply
Conditional rebates
Multi-product rebates
Self-preferencing
Access restrictions (excl. refusal to supply)
Source: 2024 Draft Guidelines, para. 60.b and Sections 4.2-4.3
for some types
where negative spreads exist
The EC has in recent years prioritised its investigation of exclusionary abuses on tech markets,10 focussing on conduct by the largest tech companies. Going forward, however, new ex post abuse of dominance cases may be less likely to focus on these same companies, given the EC’s Digital Markets Act (DMA) powers which give greater scope for and ease of intervention in digital markets specifically. The DMA was intentionally introduced to allow more timely – and in many cases ex ante –regulation of conduct by ‘gatekeepers’11 in digital markets, in part as a response to the length of time and effort that ex post enforcement under Article 102 required.12
As such, new abuse of dominance cases may indeed have a different focus or be in different industry sectors to recent cases. The EC may seek to prioritise cases investigating specific types of conduct, as well as cases that relate to innovation and economic growth. We consider how considerations of consumer welfare can and should in practice be tied into these considerations.
Identifying legal tests that apply to specific types of conduct suggests that the evidence base and case that the EC may bring against these types of conduct may be more predictable, and therefore less risky in the EC’s view (providing that the requisite tests are satisfied). Given concerns around length of time that abuse of dominance investigations have taken,13 and the fact that a number of EC decisions have been appealed, it could be argued that the EC may prioritise cases where a legal test is identified and there is a presumption of harm.
10 See for example: CASE AT.40099 Google Android (2018), CASE AT.39740 Google Search (Shopping),
Box, and CASE AT.40716 Apple – App Store Practices.
11 At the time of writing these are Alphabet, Amazon, Apple, Booking.com, ByteDance, Meta, and Microsoft.
However, the EC has proven willing to expand its grounds for intervention, with Google Shopping being the first case where the EC found self-preferencing to be abusive. Indeed, given the stated focus of competition on the merits being “a competitive situation in which consumers benefit”,14 it is important for the EC to focus on those cases where consumer welfare is likely to be most impacted. The EC should not shy away from cases with the most material impact on consumer welfare even if these may be cases which may require more in-depth, effects-focussed analysis and economic evidence to determine an infringement. Of course, there may be a timing efficiency from investigating conduct with a clear legal
12 See for example, the speech by EVP Margrethe Vestager at the Global Competition Law Centre, College of Europe - Article 102: The beating heart of antitrust in the EU. Vestager notes that ‘If ex-ante regulation and Article 102 had a child, it would be the Digital Markets Act. The DMA incorporates many of the lessons learned from Article 102 enforcement.’
13 As referred to for example in the Draghi Report, p. 304.
14 2024 Draft Guidelines, para. 51.
test and presumption of harm, however, to the extent that there is a trade-off, this should not come at a loss of focus on consumer welfare.
Innovation and Growth
The future application of Article 102 should also be viewed in the context of the EC’s recent emphasis on supporting growth and innovation. Competition policy and enforcement has been indicated as an area which can be deployed to support growth and innovation – for example in the Draghi Report,15 or in the Mission Letter to Commissioner Ribera16. While much of the emphasis in supporting growth and innovation regards merger control and state aid, there is clear recognition of the relevance of effective conduct enforcement, including ex post enforcement.17
important for innovation and growth. As such, again, a detailed consideration of the effects of putative conduct is important to on the one hand avoid undue intervention (i.e. Type I error) that may chill investment and slow innovation, and on the other, avoid a lack of intervention in abusive contexts (i.e. Type II error) where intervention would in fact be a catalyst for growth. Considering consumer welfare implications in innovation markets is far from straightforward, as there are welfare risks both from over- and from under- enforcement.18
Conclusion
The EC is currently considering consultation responses, and any final guidelines may well differ from the draft published in 2024. Hopefully, many of the issues raised will be adequately
addressed, and further clarity and certainty will be provided in the final guidelines than in the draft.
Nevertheless, there may be a temptation for the EC to focus on cases that have better defined legal tests or presumptions of harm, all else being equal. The EC may also prioritise investigations in areas key to growth and innovation, given the emphasis on these objectives since the publication of the Draghi Report. Yet the focus on consumer welfare is a critical aspect which should be considered in detail both in the Final Guidelines and when prioritising cases once the Final Guidelines are implemented.
The EC may prioritise investigating conduct that is seen as a blocker to growth and innovation, and conversely, deprioritise investigating conduct where the investigation may be perceived as having a chilling effect on these objectives. Given the fast pace of change in innovative and dynamic markets that drive growth, establishing dominance in these markets may be more nuanced – as might be the identification of anti-competitive conduct and effects. However, having these markets function well is particularly
15 Draghi, M (2024) ‘The Future of European competitiveness’, 9 September, available at: https://commission.europa.eu/topics/eu-competitiveness/draghi-report_en
16 Von der Leyen, U (2024), ‘Mission Letter to Teresa Ribera Rodríguez Executive Vice-President-designate for a Clean, Just and Competitive Transition’, 17 September, available at: https://commission.europa.eu/document/download/5b1aaee5-681f-470b-9fd5-aee14e106196_en?filename=Mission%20letter%20-%20RIBERA.pdf
17 Draghi Report, Part B, pp. 303 – 304.
18 See for example OECD (2023), ‘Competition and Innovation - The Role of Innovation in Enforcement Cases’, 23 October.
AS
THE EUROPEAN UNION -
AND TO SOME EXTENT
THE US - ATTEMPTS TO MODERNIZE COMPETITION POLICY, NEW QUESTIONS AND CHALLENGES ARISE RELATED TO MERGERS. TWO BRG MANAGING DIRECTORS WEIGH IN.
Former European Central Bank President Mario Draghi’s 2024 report on European competitiveness served as a clarion call for the region to modernize its competition policy to support broader geopolitical objectives. Key aims, as reflected in the European Commission’s (EC) 2025 Competition Compass, include closing the innovation gap with other parts of the world, in particular the US and Asia; a competitivenessdriven approach to decarbonization; and reducing dependencies and enhancing security.
In the area of merger controls, the report specifically highlights the importance of enabling European Union (EU) firms to achieve the scale necessary to compete internationally, facilitating innovation, and using investment commitments as a possible remedy—as well as how improving “resilience” might play a role in competition policy.
On the other side of the Atlantic, the new Trump administration has shown more continuity on merger policy than some expected, largely backing the Department of Justice and Federal Trade Commission’s 2023 Merger Guidelines and challenging several mergers, though with an eye toward accelerating innovation. However, senior leadership is not fully in place, and the direction US merger policy will take is uncertain.
As new developments play out, prospective dealmakers and their attorneys must navigate an increasingly complex regulatory environment. To that end, we connected with two BRG managing directors and competition economists, Brussels-based Dr. Adina Claici and Washington, DC-based Dr. Henry Kahwaty, to discuss the state of play.
To what extent is competition policy, and in particular merger policy, the cause of—or remedy for—the competitiveness problems raised by Draghi?
Adina: Competition policy is not the cause of Europe lagging behind. The fragmentation of the internal market and high regulatory barriers to businesses have been mentioned among the causes.
In terms of remedies to lagging innovation, competition policy is expected to contribute. Although state aid policy is the main area where the EU competition enforcer looks for solutions to the innovation problem, merger enforcement is also part of the discussion. The EC’s DirectorateGeneral for Competition (DG COMP) has been at the forefront of putting forward innovation theories of harm, yet an increase in innovation as a positive effect of mergers has not been considered. This is due to both the possible lack of claims in that direction by merging parties and the lack of a sound economic framework to support the analysis. Encouraging developments on both sides may change the situation and allow DG COMP to assess and hopefully account for innovation efficiencies.
Asymmetries in information between DG COMP and merging parties are a source of risk associated with analyzing innovation-related merger efficiencies. One alternative to reduce risks would be to strengthen remedies policy by introducing strict commitments on implementing anticipated investments claimed by merging parties.
The UK seems to have gone down that path with the Vodafone-Three conditional clearance. In that case it seems like UK enforcers did exactly what Draghi has prescribed in terms of using investment commitments as appropriate remedies. Was it a shift in policy relative to their previous views regarding behavioural commitments? Or did the facts of the case justify a departure from past enforcement policy? It was probably a combination.
Henry: With regard to achieving the scale necessary to compete internationally, the EU population is 50 percent larger than that of the US. It would seem that if mergers were necessary to achieve scale to compete internationally, there should be ample opportunities to achieve scale in Europe consistent with regulations.
Merger control should not inhibit scale— but, of course, that doesn’t mean that all transactions should be approved. For example, how can European telecommunications firms be unable to achieve the scale necessary when they can have so many more customers than US firms?
The answer is market fragmentation. European telecom markets are national, as are spectrum auctions. With further market integration, mergers should allow firms to reach scale. Competition policy can help resolve issues of scale or innovation, but it cannot solve all ills. It is a limited toolset, and we get into trouble if we want competition policy to do more than it is capable of doing.
Dr. Kahwaty, what do you think about the potential for an innovation defense?
Innovation is just a specific type of efficiency.
Henry: Innovation is just a specific type of efficiency, and efficiencies are considered in merger cases all the time. The potential for an innovation defense does raise a unique issue relative to, for example, the analysis of cost savings: analyzing innovation is difficult. How would you analyze an innovation defense? What could you try to prove, and how would you do it?
Though the analysis may be clear in certain industries, discussions related to innovation issues may come across as speculative or lacking the same rigor to which we are accustomed in other areas of competitive effects analysis. Similarly, how do we analyze innovation from the point of view of a competitive concern? The difficulties in analyzing innovation are not limited to efficiency considerations but rather are a broader issue.
of new products and services, development of new technologies, redeployment and recombination of assets, and use of new business models.
The US Merger Guidelines do not help much, though they do include the following:
“The incentives to compete aggressively on innovation and product variety depend on the capabilities of the firms and on customer reactions to the new offerings. Development of new features depends on having the appropriate expertise and resources. Where firms are two of a small number of companies with specialized employees, development facilities, intellectual property, or research projects in a particular area, competition between them will have a greater impact on their incentives to innovate.”
Thus, a capabilities analysis can be an important part of analyzing innovationrelated issues, as it is with potential competition and dynamic competition concerns—which are concerns related to future competition, recognizing that markets change with the introduction
Another buzzword used in recent political discourse is “resilience.” How would— or should—regulators take resilience into account in merger assessments?
Adina: In light of recent crises that have hit the EU (e.g., COVID or energy prices), the continent is seeking ways to increase resilience to reduce exposure to risks. Resilience may include diversifying suppliers and reducing reliance on imports from a particular global partner. Resilience is often talked about in a national security context and is subject to foreign direct investment control. Unfortunately, foreign direct investment scrutiny is not consolidated at the EU level, leaving the region at a disadvantage.
Resilience does not figure in the current EU Merger Regulation (EUMR), although noncompetition considerations are mentioned in Article 21(4). They include public security, media plurality, and prudence for the financial sector.
Noncompetition objectives are a common topic in many African jurisdictions that have a public interest test incorporated into their merger regimes. However, its justification has a specific nature: to protect historically disadvantaged groups by safeguarding local employment or supporting small- and medium-sized enterprises. Accounting for such factors in the assessment of a merger is not straightforward. Empirical research shows that invoking public interest objectives negatively impacts merger decisions, leading to longer proceedings and a higher likelihood of additional conditions being imposed.
Perhaps some lessons can be learned from the application of such tests in Africa. Yet due to the stated
drawbacks, invoking such objectives in merger control policy should be rather exceptional, in particular when no other regulatory instrument can address them.
What legal framework should set boundaries for these envisaged reforms in the EU?
Adina: Both Draghi and EC President Ursula von der Leyen are proposing to reform the EU’s merger guidelines. The question is whether guidelines revisions are the right approach to incorporate forward-looking policy goals, or whether it would be better to examine the EUMR or other tools.
For now, reforming the guidelines seems like a faster and easier route. If I had to mention one area where the EC could do more, it would be on “efficiencies.” Further guidance on the assessment of efficiencies would hopefully encourage early submissions by merging parties. I would also advocate more flexibility to cater for business specifics, such as the timeline of investment cycles in different industries. Accepting efficiencies only for a couple of years may not account for what is actually relevant in a given industry. The commitments in the UK for the Vodafone-Three merger demonstrate a good understanding of the period necessary for investments to be achieved.
Another important issue involves ensuring that the standards of proof for harm and efficiencies are the same. Having a higher standard for the former than the latter, as is the case currently, is not economically justified; problems related to asymmetries of information between the enforcer and merging parties could be addressed through commitments and remedies. Otherwise, there is a risk of overenforcement, which may result in underinvestment and suboptimal outcomes regarding, for example, innovation.
A radical alternative for DG COMP would be just approving a set of reforms, then
letting the courts take (political) blame should they ultimately be quashed. That, however, would be long and expensive for everyone involved.
What role will economics play in these ongoing evolutions?
Adina: Efficiencies and innovation defenses will be taken more into account, hopefully, and with a longer-term perspective aligned with remedies’ policies. At the same time, new efficiency or other public policy objectives (e.g., related to decarbonization and national security) pose challenges, as quantifications are less straightforward. However, empirical and economic tools do exist.
Not least, ex post analyses may become more relevant, and economists are well suited to perform those.
Henry: Measuring innovation and longer-term efficiencies, as Adina noted, may be difficult and require detailed and thorough analysis. Further, accounting for these efficiencies when making specific decisions on merger cases may require a cost/benefit analysis. Accounting for other objectives in merger control policy—such as decarbonization, national security, or resiliency—could be done, but the weights to place on different objectives when they conflict in a specific case are undefined.
Accounting for other objectives in merger control policy—such as decarbonization—could be done, but the weights to place on different objectives when they conflict in a specific case are undefined.
Such a balance of conflicting goals could be done, but it arguably takes merger policy too far from its roots of protecting competition and asks it to do more than it is capable of doing. In any case, there’s more work for economists ahead, particularly when it comes to innovation defenses, longerterm analyses, and the assessment and understanding of dynamic competition concerns more broadly.
Since launching in Brussels and Paris in September 2023, BRG’s European Competition practice has now grown to over 50 professionals.
Aleksandra Boutin Managing Director Brussels
Marcella Fantini Managing Director Rome
David Parker Managing Director London
Xavier Boutin Managing Director Brussels
Greg Harman Managing Director London
Dante Quaglione Managing Director London & Rome
Adina Claici Managing Director Brussels
Kai-Uwe Kühn Managing Director Brussels
Mark Bosley Director London
Konstantin Ebinger Managing Director Brussels
Francesco Lo Passo Managing Director Rome
Jean-Gabriel Despeyroux Director Paris
Laurent Eymard Managing Director Brussels & Paris
Liberty Macebo Mncube Managing Director Johannesburg
Cyril Hariton Director Brussels
OPENING PANDORA’S TOOLBOX
BLURRING BOUNDARIES BETWEEN COMPETITION LAW, CONSUMER LAW AND MARKET REVIEW POWERS
Authored by: Thomas Withers (Managing Associate) - Addleshaw Goddard
The enforcement toolboxes of the Competition and Markets Authority (CMA) and European Commission (EC) contain two broad types of tool: ‘hammers’, designed to punish conduct ex post; and ‘screwdrivers’, aimed to tighten the screws of ex ante regulation. Following recent case-law and reforms, notably the Digital Markets, Competition and Consumers Act 2024 (DMCCA) and Digital Markets Act (DMA), these toolboxes are ever expanding.
Let’s start with the ‘hammers’. To date, consumer law has been somewhat softer than antitrust, with the CMA generally limiting itself to attempts to change behaviour rather than impose punishments due to the limits of its powers. But the DMCCA has consolidated, updated and upgraded various strands of prior consumer law and introduced competition lawlike investigatory and fining powers, significantly changing the landscape. Mirroring UK policy winds, in October 2024, the EC concluded a “fitness check” on the EU consumer law framework in relation to digital markets, concluding that updated rules are needed and paving the way for the proposed Digital Fairness Act. 1
Further, through a combination of the CMA/EC and the Courts, traditional antitrust enforcement has also been expanded outwards into previously underexplored territories. Perhaps most notable is the resurgence of exploitative theories of harm in the context of abuse of dominance enforcement, in particular a wave of new cases looking at the circumstances in which unfair trading conditions imposed by a dominant firm can be abusive.2
The EC and CMA have also been sharpening their screwdrivers. The CMA’s existing powers to launch market studies and investigations have been altered by the DMCCA in a manner intended to make them easier and more flexible to use. While the EC’s 2020 roadmap3 to introduce an EU-wide markets regime did not bear fruit, similar regimes have since been introduced at a member state level4
More significantly, perhaps, both the UK and EU have introduced bespoke regimes for regulating digital markets, allowing for targeted ex ante interventions to facilitate better consumer outcomes in the myriad of markets touched upon by big tech players.
As this expansion has taken place, the boundaries between these areas of enforcement have become increasingly blurred – and we predict several significant implications for businesses across a range of different sectors in the years ahead.
First, it will become increasingly unclear which tool will be used to enforce against particular conduct –with the potential for inconsistencies in approach. Take, for example, enforcement against terms and conditions of business that are perceived to be unfair. Tackling unfair terms and conditions in a businessto-consumer context has historically been the domain of consumer law, with several strands of consumer law covering this topic, so the DMCCA reforms will increase this risk profile. Nevertheless, as above, we have also seen unfair terms and conditions looked at as exploitative abuses, and that includes in consumer-facing contexts.5
1 See https://commission.europa.eu/document/download/707d7404-78e5-4aef-acfa-82b4cf639f55_en?filename=Commission%20Staff%20Working%20Document%20Fitness%20 Check%20on%20EU%20consumer%20law%20on%20digital%20fairness.pdf
2 See for example AT.40437 – Apple – Apple Store Practices (music streaming).
3 See https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-Single-Market-new-complementary-tool-to-strengthen-competition-enforcement_en
4 e.g. with Germany introducing significant updates to its sector inquiries tool in 2023, allowing it to impose remedies more akin to a CMA market investigation.
5 See, for example, Justin Gutmann’s recent Boundary Fares collective action arguing that trading conditions imposed directly on consumers are abusive. See https://www.
And it is also possible that digital markets powers could play a role. For example, the CMA initially launched antitrust investigations into Apple’s App Store and Google’s Play Store in 202122 before closing these investigations in favour of DMCCA investigations, and several of the issues examined as part of those investigations stray into consumer law territory (e.g. choice architecture and privacy policies).
Second, relatedly, when considering the risk of inconsistency it is important to also consider the overlay of private enforcement. While a public regulator will consider various factors in determining the appropriate enforcement tool(s) to be used in any given case, a private claimant’s chief concern will be ensuring it is properly remedied for any harm it has suffered. Given this context, there is no guarantee that the CMA’s choice of enforcement tool will be matched by private claimants.
Examples of this are already emerging in the UK. The topic of ‘loyalty penalties’ (i.e. the practice of offering better terms to new customers than existing customers) provides a good example. The CMA has largely opted for softer powers in this area. In 2018, it reviewed loyalty penalties across 5 distinct markets and proposed a number of recommendations for regulatory and legislative change to tackle the practice in response to a super-complaint by Citizens Advice.6 Late last year, it concluded a review into loyalty pricing in the groceries sector.7 It has also used consumer law investigations to secure undertakings from anti-virus firms related to loyalty penalties.8 But we have seen harder enforcement remains via damages actions in the Courts. For example, in January 2024, Justin Gutmann launched a collective action against Mobile Network Operators arguing that the practice of continuing to charge customers certain fees after the cost of their handsets have been paid in full – characterised by the claimants as a loyalty penalty – amounted to an (exploitative) abuse of dominance.9 boundaryfares.com/Home/About.
Another recent example of this public/ private dichotomy can be found in relation to Motorola and Airwave. In 2021, the CMA launched a market investigation into Motorola’s “Airwave” radio-based network, used by (amongst others) the UK emergency services network, and found that Motorola was able to overcharge c.£200m per year for this network due to a lack of competition, ultimately imposing a price cap on the Airwave network to alleviate these concerns.10 On 31 December 2024, Clare Spottiswoode’s collective action argued that Motorola’s conduct was also an abuse of dominance, arguing that Motorola excessively priced Airwave prior to the CMA’s price cap, relying on various of the CMA’s findings. 11In other words, the CMA used a screwdriver, but private claimants have brought out the hammer.
Third, it is likely that, in future enforcement, we will increasingly see regulators use multiple tools concurrently (or even in the alternative) to tackle issues from multiple angles –and again, there is already evidence of this taking shape.
Take, for example, recent CMA action in relation to the housing sector. In February 2023, the CMA launched a market study into the housebuilding sector12 and, at the same time, a consumer protection project examining issues in relation to rented housing.13 In February 2024, the CMA published the findings of its housebuilding market study, recommending various reforms
6 See https://www.gov.uk/cma-cases/loyalty-penalty-super-complaint
7 See https://www.gov.uk/cma-cases/loyalty-pricing-in-the-groceries-sector
8 See https://www.gov.uk/cma-cases/anti-virus-software
9 See https://www.catribunal.org.uk/cases/16247723-mr-justin-gutmann
10 See https://www.gov.uk/cma-cases/mobile-radio-network-services
11 See https://www.catribunal.org.uk/cases/16987724-clare-mary-joan-spottiswoode-cbe
12 See https://www.gov.uk/cma-cases/housebuilding-market-study
13 See https://www.gov.uk/cma-cases/rented-housing-sector-consumer-research-project
14 See https://www.gov.uk/cma-cases/investigation-into-suspected-anti-competitive-conduct-by-housebuilders
15 See https://www.gov.uk/cma-cases/dynamic-pricing-project
be pursued by the Government – but it also opened an antitrust investigation into 8 housebuilders for alleged sharing of competitively sensitive information.14 Cases like these, which see consumer law and markets powers operating in tandem, reflect the wider merging of the CMA’s previous markets and consumer law teams into a single “Consumer Protection and Markets” unit. 15
Fourth, regulators will need to keep the principle of not punishing companies for the same wrongful behaviour twice (referred to as “ne bis in idem, or “double jeopardy”, in legal circles) at the front of their minds when deciding whether and on what basis to intervene. This ought to include scanning for other public agencies’ activities with overlapping remits – a task which in the UK can be facilitated by the Digital Regulation Cooperation Forum.
It is said that possessing a hammer creates a tendency to see every problem as a nail. But with recent developments creating new potential overlaps between various areas of enforcement, it will be increasingly important for businesses to take a multi-disciplinary, holistic approach to assessing and mitigating risk, rather than sticking rigidly to existing paradigms.
What Do You See As The Most Important Thing About Your Job?
Anticipating the client’s needs before they tell you. Thinking ahead, taking initiative, and coming up with creative solutions can go a long way in building repeat client relationships.
What Has Been The Best Piece Of Advice You Have Been Given In Your Career?
Don’t pick and choose early on in your career. Say yes to most things that come your way.
What Is The Most Significant Trend In Your Practice Today?
An increasing role for financial analysis in the competition/ antitrust space, particularly valuation models in the context of M&A deals. I am also seeing an uptick in matters requiring finance expertise related to digital assets and cryptocurrencies.
Who Has Been Your Biggest Role Model In The Industry?
More than one really. Jim Burrows inspires me every day with his remarkable work ethic and dedication to work. Paul Maleh sets the bar high when it comes to being so well achieved yet approachable and down to earth. Sam Lynch is the best mentor – he is always available and truly listens with the intention of offering support.
60 SECONDS WITH... SWATI KANORIA ASSOCIATE PRINCIPAL CHARLES RIVER ASSOCIATES
If You Could Go Back To One Specific Day In Your Life, What Would It Be?
The day I got admitted to my father’s alma mater for my undergraduate studies. That is one of the happiest days of my life. He was incredibly proud, and I have such fond memories of sharing college experiences with him.
If You Could Give One Piece Of Advice To Aspiring Practitioners In Your Field, What Would It Be?
Embrace the struggle. It is okay to not know everything, and you learn through mistakes.
If You Had To Sing Karaoke Right Now, Which Song Would You Pick?
So Long, London by Taylor Swift. I was in London last week and haven’t been able to get this song out of my head. Also, London is one of my favourite cities, and this song just feels relatable since I moved from the UK to the US.
Dead Or Alive, Which Famous Person Would You Most Like To Have Dinner With, And Why?
Marcus Aurelius, the philosopheremperor. His Meditations have had a profound impact on me, and I find myself revisiting them frequently. It would be amazing to discuss Stoic philosophy with him.
What Does The Perfect Weekend Look Like?
Staying at home, lazing around, catching up with family, a snug cup of coffee and watching an episode of Severance on the telly.
What Personality Trait Do You Most Attribute To Your Success?
Being a good communicator and leading with empathy. I have found that good communication supplements hard work and opens many new doors. The impact of empathy may feel intangible, but I believe it plays a huge role in contributing to team morale and growth.
What Would You Be Doing If You Weren’T In This Profession?
I would have pursued acting. I used to do stage plays in school and was quite passionate about it.
What Is One Of Your Greatest Work-Related Achievements?
The privilege of getting my first expert witness retention early on in my career. The work being related to cryptocurrencies was the cherry on top.
When everything is at stake, rely on CRA
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THE NEW FRAMEWORK FOR UK PUBLIC PROCUREMENT:
EXCLUSION AND DEBARMENT DUE TO COMPETITION LAW ISSUES
Introduction
The legal framework for public procurement was overhauled with the coming into force of the Procurement Act 2023 (the “Act”). An important change brought into force on 24 February 2025 is the introduction of new mandatory exclusion grounds in relation to certain anti-competitive conduct, alongside new discretionary exclusion grounds in relation to additional and potential competition law issues. The Act extends the scope of the exclusions for anticompetitive conduct. Consequently, it is important that current and prospective procurement suppliers understand the serious implications which could stem from a failure to comply with competition law.
Who Needs To Be Concerned About These Exclusion Grounds?
The scope of the exclusions and the debarment regime discussed below is not limited to the supplier itself. Certain grounds can extend to individuals and entities who are associated with or connected to the supplier in question.
(a) An associated person is a person that the supplier is relying on in order to satisfy the conditions of participation in the tender (other than a guarantor).
(b) A connected person is a person with significant influence or control over the supplier, or over which the supplier has significant influence or control; this might include (for example) directors or a parent or subsidiary company.
There are also related rules to ensure vetting of sub-contractors in the supply chain which the supplier intends to rely upon if awarded the tender.
Mandatory Exclusions
When a mandatory exclusion ground is met then that supplier must be excluded from participation in a procurement, having their tender considered or being awarded a public contract – if the circumstances giving rise to the exclusion ground are continuing or likely to occur again (such that the supplier has not ‘self-cleaned’ as explained further below).
There are effectively two mandatory grounds in the exclusion and debarment regime which directly concern competition law compliance. The first applies where a supplier or connected person has been convicted of the criminal cartel offence under section 188 of the Enterprise Act 2002 – or an equivalent overseas offence. Subject to limited exclusions and defences, an individual commits the section 188 offence if they have formed an
Authored by: Peter Smith (Associate), Zac O’Brien (Managing Associate) & Audrey Dwyer (Knowledge Lawyer) – Mishcon de Reya
agreement with at least one other person that two or more undertakings will engaged in price fixing, market sharing, bid-rigging (a particular concern in procurement regulation) or to limit output. An ancillary offence to such a criminal cartel offence (e.g. aiding, abetting or conspiring) can also amount to a mandatory ground.
The second mandatory ground applies where a supplier or connected person has been found by the CMA to have participated in a cartel contrary to Chapter I of the Competition Act 1998 – or a concurrent regulator has found an equivalent infringement under equivalent legislation outside of the UK. Subject to limited exceptions, Chapter I of the Competition Act 1998 prohibits agreements between undertakings, decisions by associations of undertakings, or concerted practices which may affect trade within the UK and which have as their object or effect the prevention, restriction or distortion of competition within the UK. However, the mandatory ground is limited to a finding of participation in a cartel (i.e. it does not cover just any unlawful agreement or concerted practice). The inclusion of certain overseas competition law infringements in this mandatory ground broadens the scope of the exclusion and debarment regime significantly, and is of particular note to businesses which have international ownership or operations.
Notably, this ground does not apply where the relevant undertaking was granted immunity from a penalty under a leniency programme, and in some circumstances this may therefore provide a participant in a cartel with an added advantage of ‘blowing the whistle’ to a regulator.
Discretionary Competition Law Grounds
Under the Public Contract Regulations 2015, there was already a discretionary exclusion ground where a contracting public authority had “sufficiently plausible indications” of anticompetitive agreements. The discretionary grounds in relation to anticompetitive behaviour have now been expanded. A discretionary ground applies if the supplier or a connected person:
(a) is party to an agreement or concerted practice which infringes Chapter I of the Competition Act 1998;
(b) has infringed the prohibition on abuse of a dominant position in Chapter II of the Competition Act 1998;
(c) has engaged in conduct constituting the criminal cartel offence contrary to s. 188 of the Enterprise Act 2002;
(d) has infringed a substantially similar competition law prohibition to those described in (a)-(c) in an overseas jurisdiction.
These discretionary grounds do not apply where the relevant person has been granted immunity from penalties in respect of the alleged infringement. The discretionary grounds cover a much broader array of competition law issues than the mandatory competition grounds: potential as well as actual infringements (i.e. suspected infringements) and decisions establishing an infringement of Chapter I of the Competition Act 1998 other than by participation in a cartel or an infringement of Chapter II of the Competition Act 1998 (and equivalent overseas decisions).
and an application for leniency from a competition authority; however the precise detail of that interplay remains unclear. The CMA’s website at the time of writing indicates that further guidance will be published that will touch upon such issues: “the CMA will provide additional guidance on the interplay between the new procurement regime and the CMA’s leniency regime in the CMA’s consultation document and draft leniency guidance to be published shortly”.
Debarment List
In a significant change, the Act introduced a debarment list. A Government Minister can pre-determine that because a mandatory or discretionary ground has been met that supplier should be included on a central debarment list for up to five years. If the reason for a supplier being included on the debarment list is because of a discretionary ground, then the contracting authority is not obligated to exclude the tenderer but “may” chose to.
Self-Cleaning
As above, if a contracting authority decides that a ground applies, then the supplier could still try to demonstrate that it has ‘self-cleaned’. This means demonstrating that circumstances giving rise to the ground are not continuing or are unlikely to occur again. There is interplay between ‘self-cleaning’
Look-back period
The look-back period when assessing the grounds is five years (albeit there are also some discrete transitional rules on time periods).
Comment
All businesses should already be aware of the importance of compliance with competition law given the potential severity of its penalties. Following the introduction of the Act, businesses that seek to participate in UK public procurement have an even greater responsibility to monitor their own compliance with UK and international competition laws (and compliance of connected persons).
MEXICO’S NEW COMPETITION BILL: A CRITICAL SHIFT IN ANTITRUST ENFORCEMENT
In early 2025, Mexico announced a proposal to swift its competition regime through a new piece of legislation: the Federal Antitrust and Economic Competition Bill. The potential enactment of this bill would result in the replacement of the current Federal Economic Competition Law (FECL), representing a major regulatory swing in Mexico since the establishment of its autonomous antitrust bodies back in 2013.
Replacing COFECE: A New Agency with Broader Goals
A central principle of the bill is the replacement of Mexico’s current autonomous competition authority, the Federal Economic Competition Commission (COFECE), with a freshly established body: the National Agency for Competition and Economic Welfare.
Authored by: Iñigo Cortina Lira (Lecturer of Law) - Universidad Iberoamericana
This potential new agency would undertake the competition roles of COFECE and the Federal Institute of Telecommunications (IFT), merging the two authorities under a single entity. The key objective of this combination is to support competition enforcement with broader social objectives, notably “economic well-being.”
Nevertheless, this bill has been met with concern. The new agency, unlike COFECE, which is constitutionally autonomous, would be a decentralised body under the executive branch. Many have voiced worries that this could possibly lead to a fading of regulatory independence and the politicisation of enforcement decisions. In countries such as the UK, where enforcers such as the Competition and Markets Authority (CMA) work autonomously from the government, such changes are observed with caution.
Stronger Fines and Enforcement Tools
The projected legislation would significantly increase the fines for anticompetitive behaviour. For example: i) cartel participants could now be penalised up to 20% of the group’s total turnover; ii) abuse of a dominant position could result in fines of up to 10%; and iii) failure to notify a concentration could result in penalties of 8%.
It also provides for the possibility of higher fines for non-cooperation and temporary arrest for obstructing a dawn raid. The draft law proposes to lower the thresholds triggering the obligation to notify a concentration and to consider cooperation agreements as notifiable.
Finally, the new agency will have the authority to bring actions (individual and collective) for damages, even if administrative decisions are not yet final and subject to judicial review, and the Plenary of the new agency will be reduced from 7 to 5 commissioners.
From a compliance perspective, companies operating in Mexico will need to assess their risk management strategies, predominantly multinationals that are accustomed to a more predictable enforcement environment.
Impact on Market Players and Foreign Investment
The combination of increased financial penalties and expanded investigatory capabilities suggests a regulatory environment characterised by enhanced efficiency and severity.
It is also important to consider the impending impact on foreign investors. The factors of legal certainty and institutional continuity are pivotal in the context of international investment decisions. The substitution of a wellestablished enforcer like COFECE with a novel entity could rise questions about enforcement consistency, rule of law, and procedural fairness, all of which are main alarms for UK businesses operating abroad.
Political Reform or Power Consolidation?
It is vital that the new bill is weighed within the context of the overarching policy framework. It is part of a thicker plan by the federal government to restructure and, in many cases, decrease the number of autonomous constitutional bodies. The rationale provided for this initiative encompasses cost-cutting measures and enhancement of efficiency.
Nevertheless, a significant proportion of legal practitioners and academics interpret the proposed bill as part of a broader trend towards centralising power in the executive branch. The distress is not only the replacement of COFECE, but also the likelihood of increased political influence over regulatory decisions.
This shift has prompted constitutional debates. The establishment of COFECE in 2013 was planned to ensure the insulation of competition enforcement from political pressures by establishing an independent body. However, the dissolution of COFECE and the establishment of a new agency with wider economic aims may potentially compromise the very principle on which modern competition law depends.
Furthermore, while the bill proposes to be aligned with Mexico’s transnational obligations, including those under the United States-Mexico-Canada Agreement (USMCA), concerns have been elevated that certain provisions may diverge with these obligations.
Final Thoughts: Why This Matters
to UK Readers
For readers in the United Kingdom, the Federal Antitrust and Economic Competition Bill is noteworthy for numerous reasons. Firstly, it hints a shift in the approach of one of Latin America’s largest economies in terms of market regulation, with the potential to impact regional trends. Secondly, in a global context characterised by the rise of protectionist and politically motivated regulatory amendments, the maintenance or erosion of regulatory independence assumes even greater significance. Furthermore, for any UK-based business or legal professional with cross-border interests, understanding how local bodies are developing is crucial to handling risk and seizing opportunities.
In conclusion, the Federal Antitrust and Economic Competition Bill can be considered as ambitious, controversial, and far-reaching. The effectiveness of the new agency’s structure, backing, and accountability in delivering stronger enforcement or weakening institutional checks will be pivotal in this regard. This potential piece of legislation can be observed as a significant milestone in the evolution of competition law in Mexico or a potential regression in terms of institutional autonomy and legal certainty, and it is recommended that UK observers and stakeholders follow these developments closely in the months ahead.
What Comes Next?
As of April 2025, the bill remains under consideration by Mexico’s Congress. Although a constitutional amendment passed in late 2024 provided the legal foundation for these institutional changes, the implementing legislation still needs to go through the legislative process.
During this transition period, COFECE and other regulators are expected to continue their operations. Conversely, the overlap period could produce vagueness, especially for current cartel and abuse of dominance investigations, merger control reviews, or market studies.
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We are fully committed to every case we take on and rigorous in the analysis we deliver.
We deal with the complete spectrum of competition policy assignments from mergers and litigation through to market investigations and abuse of dominance.
PRIVATE ENFORCEMENT OF COMPETITION LAW IN FRANCE: A WORK IN PROGRESS
While private enforcement of competition law is now widely recognized as an essential complement to public enforcement, its development in France remains limited. This is paradoxical, considering that the legal framework has been significantly strengthened since Directive 2014/104/EU of 26 November 2014, which was transposed into French law in 20171. Yet, the number of damages actions remains relatively low.
Several factors explain this situation: legal uncertainty, evidentiary obstacles, difficulty in assessing harm, and a weak litigation funding ecosystem. However, there are signs of improvement. The establishment of the Economic Affairs Court in 2024 represents a major step forward in the specialization of the judiciary and may help foster a genuine culture of competition litigation.
a. The Binding Effect of Decisions by the Competition Authority
Since the transposition of the 2014 Directive, final decisions by the French Competition Authority (FCA) finding an infringement are binding on civil courts (Article L.481-2 of the French Commercial Code)2. However, this probative effect applies only to national decisions. Decisions issued by other EU national competition authorities merely have a rebuttable presumption status3. This limitation weakens the spillover effect of foreign competition enforcement, even though many anticompetitive practices are crossborder in nature.
determining the starting point is difficult. Should one rely on the date of the FCA decision, its publication, or the moment the claimant ought to have known of the key facts?
The Paris Court of Appeal (2 March 2022, Fédération hospitalière de France) adopted a flexible approach4, but the case law remains fragmented. The coexistence of old and new regimes in pre-2017 cases adds further complexity.
2. Quantifying Harm: A Challenging Exercise
To succeed in a damages claim, a plaintiff must not only prove the infringement, but also quantify the harm suffered and establish a causal link.
1. Persistent Judicial Uncertainty
One of the main obstacles to the development of private enforcement lies in the lingering uncertainty of French case law on several key issues.
b. Limitation Period: A Source of Legal Uncertainty
Article L.482-1 of the Commercial Code establishes a five-year limitation period starting from the date on which the claimant knew, or should have known, of the infringement, the harm, and the identity of the infringer. In practice,
French civil judges remain strict regarding the burden of proof. Although the Directive provides a rebuttable presumption of harm in cartel cases (Article 17(2)), courts often demand extensive and costly economic analysis5. In SNCF Réseau v. Deutsche Bahn (Paris Court of Appeal, 5 January 2023), the court dismissed the claim for failing to convincingly establish a causal link between the infringement and the alleged loss6.
In the absence of simplified assessment tools or judicial guidelines, claimants are left to face a highly technical and uncertain task.
Authored by: Alexandre Lercher (Juriste - Litigation Finance) - IVO Capital Partners
In France, this practice remains marginal. There is currently no specific regulatory framework governing relationships between funders and claimants10. Nevertheless, third-party funding is critical to enable collective redress or support claims by SMEs against dominant firms.
3. Access to Evidence: A Conservative Transposition
The French regime allows for disclosure of evidence (Articles L.483-1 et seq. of the Commercial Code) under judicial supervision. Yet courts have been cautious in granting such requests7.
This reluctance stems from a French legal tradition that is wary of discoverylike mechanisms and a desire to protect business secrets and administrative confidentiality. As a result, very few rulings have granted access to key evidence, leaving claimants ill-equipped to prove their case.
6. Positive Developments: Judicial Specialization
In this challenging context, a recent reform deserves attention: the creation of the Economic Affairs Court, which became operational in early 202411.
This court consolidates the specialist chambers of the Paris Judicial Court and the Paris Commercial Court, and is tasked with handling all complex economic disputes, including competition litigation. It benefits from specialized judges, centralized case management, and enhanced economic and financial expertise.
4. Collective Actions: A Potential Game Changer
Until recently, France had no effective mechanism for collective redress in competition cases. The 2014 Hamon Law had expressly excluded such matters.
The Law of 9 March 2023, transposing Directive (EU) 2020/1828 on representative actions, lifted this exclusion. Consumer associations can now bring collective actions in competition law cases8. This is a promising development, albeit still limited to designated qualified entities. Key issues such as financing, coordination with administrative procedures, and procedural clarity remain to be addressed9.
5. Litigation Funding: Still Underdeveloped
Third-party litigation funding is a useful tool to overcome the high costs of complex litigation, especially in antitrust cases involving cartels or abuse of dominance.
This move toward judicial specialization is a major step forward. It should lead to more consistent rulings, improved legal certainty, and more efficient resolution of damages actions. It also encourages greater synergy between civil courts and the Competition Authority.
Conclusion
Private enforcement of competition law in France is making progress but still faces structural hurdles. Legal uncertainty, difficulty in proving and quantifying harm, lack of effective collective action mechanisms, and limited access to litigation funding are all major constraints.
However, recent developments – including the creation of the Economic Affairs Court, the transposition of EU directives, and the gradual emergence of a litigation culture –offer hope for the future.
With more coherent case law, greater financial support for litigation, and improved access to justice, private enforcement could, in the years
to come, become a vital pillar of compensation and deterrence in French competition law.
1. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
2. French Commercial Code, Article L.481-2, as introduced by Ordinance No. 2017-303 of 9 March 2017.
3. CJEU, 14 March 2019, Skanska Industrial Solutions, Case C-724/17.
4. Paris Court of Appeal, 2 March 2022, No. 20/10161, Fédération hospitalière de France.
5. OECD Report, Quantification of Harm in Private Damage Actions, 2016.
6. Paris Court of Appeal, 5 January 2023, No. 20/20187, SNCF Réseau v. Deutsche Bahn.
7. Paris Judicial Court, 22 November 2022, No. 21/04539, denying disclosure under Article L.483-1 of the Commercial Code.
8. Law No. 2023-171 of 9 March 2023, transposing Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers.
9. C. Prieto, “Le nouveau régime des actions représentatives : une révolution en trompe-l’œil?”, Revue Lamy Droit de la Concurrence, 2023, No. 91.
10. There is no specific legislation regulating third-party litigation funding in France, unlike in the UK.
11. Ministry of Justice Circular of 15 February 2024 on the establishment of the Economic Affairs Court of Paris.
What Do You See As The Most Important Thing About Your Job?
Helping people receive compensation for wrongs that have been done, which leads to a lot of satisfaction and gratitude in my everyday work.
What Is One Work Related Goal You Would Like To Achieve In The Next Five Years?
Continuing to develop leadership skills within the company, to maximize the beneficial work we do.
What Would Be Your Superpower And Why?
Teleportation. I love to travel and see friends and family far away. It would save so much time.
Where Has Been Your Favourite Holiday Destination And Why?
Quisisana Resort in Lovell, Maine. I describe it as a “Dirty Dancing” musical theatre camp for adults. My grandparents started taking the whole family and I have been going since I was 3 years old. There is no cell service or TV, which has created such a strong family bond between me and my cousins because we spend a week every summer
60 SECONDS WITH... AMANDA STERNBERG DIRECTOR
disconnected from the world, just with each other and the beautiful lake.
What Is Something You Think Everyone Should Do At Least Once In Their Lives?
Travel somewhere outside of your comfort zone. You’ll be able to view the world in a different way.
What Personality Trait Do You Most Attribute To Your Success?
Organisation. The way my brain can recall stored, important information is a huge benefit, which has played a key role in the success of my career.
What Is The Easiest/Hardest Aspect Of Your Job?
The easiest part would be the people at Epiq. It’s a great team that makes coming to work something to look forward to. The hardest part is the timeline structure of settlements in general. Sometimes, class members get frustrated waiting for compensation. Having to explain the nature of that structure, that we don’t have any control over it, and trying to assure them can feel heavy at times.
What Would You Be Doing If You Weren’T In This Profession?
I always wanted to be a meteorologist, not on camera but behind the scenes, predicting and studying the weather. I am truly fascinated by data and science.
Do You Have Any Hidden Talents?
I can pick up new games and sports very quickly, which sometimes frustrates my friends and family.
Who Has Been Your Biggest Role Model In The Industry?
Loree Kovach, Senior Vice President at Epiq. I am grateful to work at a company with so many successful women and have had the opportunity to work with Loree directly for many years. I’ve been able to emulate what she has done and have grown in a similar career path.
Article 15, para 1-bis, of Law No. 287/1990 (Italian Competition Act) grants the Italian Competition Authority (AGCM) the power to impose administrative fines of up to 10% of the turnover of companies whose conducts have been found to allegedly amount to anticompetitive conducts in contrast with the Italian Competition Act or the TFEU. In determining the amount, the AGCM must consider the gravity and duration of the infringement, as well as other elements, such as efforts made by the infringer to mitigate the consequences of the violation and its economic conditions.
Sanctioning powers of the AGCM have been shaped by the Authority in its Guidelines on the Application of Criteria for the Quantification of Administrative Fines (Guidelines), adopted back in 2014, which the Authority has recently updated to grant thorough alignment with regulatory, enforcement and judicial developments occurred in the last ten years in the antitrust and competition field.
THE REVISED AGCM GUIDELINES ON ANTITRUST FINES CALCULATION
Key updates introduced in March 2025 address the calculation of the basic fine in relation to infringements involving business associations and in relation to bid-rigging conducts, as well as the application of aggravating and mitigating factors to the calculation of the final amount of the administrative fine.
At a more general level, a first amendment concerns the elimination of ‘gravity’ as a requirement for the exercise of fining powers by the Authority, which was previously provided for in the first sentence of former Guidelines and has been removed to align the text to the amendments of the domestic legislation following the implementation of the ECN+ Directive at national level. Gravity, of course, remains a parameter for the calculation of fines, on which the key updates focus.
As regards the calculation of the basic amount of fines, the revised Guidelines confirm the general rule according to which the basic amount is obtained by multiplying a percentage of the value of sales, determined on the basis of the gravity of the infringement and the duration of the company’s participation in it. However, two noteworthy diversions, finally leading to a tightened sanctioning regime, have been introduced.
A first diversion to the general rule is introduced for infringements involving business associations. It is now specified that, where the infringement of an association concerns the activities of its members – which actually appears to be always the case – the value of the sales shall generally correspond to the sum of the values of the sales directly or indirectly made by them, and
Authored by: Maria Rosaria Raspanti (Counsel) - Pavia e Ansaldo Studio Legale
that when a fine is imposed both on the association and its members, the turnover of the members on whom the fine is imposed shall not be taken into account in the calculation of the fine of the association.
This amends the previous regime, which anchored the value of sales to the value of the membership fees paid by the members of the association and led to a generally soft sanctioning treatment for associations. The new regime closes this loophole, with the important specification, however, of the exclusion of turnover of members when members are also fined for the same conducts –without which the regime would have been too strict and unbalanced.
A further, noteworthy, revision concerns the impact of aggravating and mitigating circumstances on the final amount of the fine. The new Guidelines address the impact of such circumstances on the final penalty, establishing that, as a rule, the impact of each of the circumstances considered by the Authority cannot exceed 10% of the basic amount of the fine, up to an overall percentage equal to 30% of the basic amount increased or decreased. The previous Guidelines, instead, quantified such amounts as 15% and 50%, respectively. The range is therefore tighter, although arguably making the fine more predictable by reducing the width of the range in which the sanction finally falls.
Compared to the previous framework, the new Guidelines appear to introduce a generally stricter, though more structured and predictable, system. This implies that companies operating in Italy should, from now on, pay higher attention than before to their antitrust compliance. Indeed, from a risk assessment point of view, the revised Guidelines appear to entail a higher financial exposure for companies. In this scenario, which shows an approach by the Authority pointing at an increased exploitation of deterrence effects of fines, robust investment in compliance measures and legal reviews to minimize exposure to AGCM fines becomes mandatory.
A second diversion is taken in relation to bid-rigging conducts. In this respect, it is now specified that, if the tender is awarded to third parties to the collusive agreement, the value of the sales to take into consideration for setting fines shall be the offer submitted by the participant who should have been awarded the tender according to the anticompetitive allocation plan, unless this value is not reliable or sufficiently representative, in which case the Authority will use other relevant information such as – as provided in general for fines to be appliedthe average value of sales over the entire period of the infringement or another year of that reference period, or a percentage of the total turnover achieved in Italy.
WHAT ARE THE OPTIONS WHEN MAKING A DAMAGES PAYMENT IN THE UK?
Authored by: Chris Ford (Senior Director) - Blackhawk
It’s generally agreed that the Collective Proceedings regime will ultimately be measured on how many claimants involved in a case go on to receive what’s due to them. The goal seems simple. When businesses do wrong, make sure validated, harmed individuals receive their due redress. But at what stage do we start thinking seriously about how redress will be paid? Recent experience suggests probably not early enough and certainly not in great detail with the right experts in the room.
At the end of 2024, 52 collective actions had been registered with the CAT. These involve claims against organisations across a range of industries, including financial services, technology, automotive, transport, energy and utilities. Of these registered collective proceedings, 22 have been certified and 25 are awaiting certification. Many have already been through various stages of legal proceedings, and we have now firmly entered the phase of determining how effected claimants will receive what is rightfully theirs.
So, what are the options when it comes to making a payment and how can you make this process relevant, timely and extremely effective?
As a global payments business, Blackhawk Network (BHN) have 3,500 employees operating in 28 countries, meaning that our knowledge and understanding of cultures and payment modalities on a global scale is market leading.
What we know for sure is that what works well in the US, doesn’t always apply across other jurisdictions and it’s vitally important that understanding how consumers pay for things in their everyday lives is factored into the thinking of disbursement planning for legal payment processing.
In the US it is not unusual for cases to include pay-out choices that consist of ACH transfers, cheque payments, Venmo, PayPal, Direct to Debit, virtual prepaid cards and e-codes, to name just a few. In the UK, are far more regulated payments jurisdiction, cheques are now rarely used, and our more typical bank transfer process relies on BACS (Bankers’ Automated Clearing Services). Culturally, UK consumers have embraced digital payment alternatives via mobile devices. This accelerated in its appeal during COVID, as consumers demanded a greater array of contactless payment
alternatives, preventing any physical engagement at the point-of-sale. The UK’s Financial Conduct Authority (FCA) even increased the amount that could be paid in a single transaction (from £30 to £100) simply by tapping a phone or payment card to cover more payment eventualities. This value is set to increase further in 2025.
Across regions people expect a varying array of options when it comes to receiving money. Personal circumstances play a significant role in payment preferences. Some claimants are unbanked, underbanked or simply do not have access to technology that enables digital payments to work for them. Some claimants may not trust the communications that ask for personal banking data to make a payment (especially when the case could have been ongoing for multiple years, and they have been very much at arm’s length from the detail) and simply drop out from the process altogether, suspecting fraud or that the engagement is a scam.
Additionally, there is the complexity of the pay-out value, which could mean once traditional banking charges are applied, the final value per claimant is just too small to make the damage payments viable.
Disbursement Planning for legal payment processing is certainly a specialist function and it’s important to involve experts like BHN as early as possible in the process to make sure that claimants receive what is rightfully theirs, quickly, simply and in a format that suits their needs. The regime works hard to challenge businesses that have abused their position and therefore making certain that claimants receive their due compensation is paramount to the ongoing success of the regime.
Let’s take a closer look at the UK specifically and see what pay-out options have become most used. Of course, the importance of providing choice to consumers (one size does not fit all) should always be front of mind, encouraging engagement and ultimately delivering pay-outs.
Below is the list of the most used payout modalities across the UK.
Method:
Prepaid Cards (Physical and or Virtual)
• Overview:
- The claimant receives the funds on a prepaid card which they can spend anywhere Mastercard / VISA is accepted
• Pros:
- No need for personal banking data
- Regardless of value no transaction fees apply
• Cons:
- The funds remain separate from a claimant’s personal bank account
Method:
Retailer e-codes (Hawk Select swap offering) typically delivered digitally as an e-code
• Overview
- The claimant receives their value in an email/SMS
- The claimant can swap their value into one of hundreds of retailer e-codes across the country
• Pros:
- No need for personal data
- Regardless of value no transaction fees apply
• Cons:
- The funds remain separate from a claimant’s personal bank account
- Recipients can only spend the value at defined retailers
Method:
BACS (Bankers’ Automated Clearing Services)
• Overview:
- Depositing damages directly into a claimant’s bank account
• Pros:
- Familiar process
- Claimant has access to funds from within their own banking environment
• Cons:
- Claimant needs to share personal banking data to receive the payment
- Bank charges apply to each transaction which can increase the cost of payment issuance and lower the total funds available for disbursement
Method:
One4all – Multistore gift-card (Physical and or Virtual)
• Overview:
- The claimant receives their funds on a One4all gift-card which can be spent at 185 national retailers across the UK
• Pros:
- No need for personal banking data
- Regardless of value no transaction fees apply
• Cons:
- The funds remain separate from a claimant’s personal bank account
Method: PayPal
• Overview:
- Claimants choose to deposit funds into their nominated PayPal account
• Pros:
- A familiar process if the recipient uses PayPal
- Claimant has access to the funds from within their PayPal account
• Cons:
- Requires the claimant to provide some personal data
- Transaction fees apply which can lower the total funds available for disbursement
When planning your Disbursements there are several factors to consider with regards how the payment process will work. For example:
1. What are the pay-out goals in terms of delivered funds to claimants?
2. What is the value per claimant to be paid out across the total claimant base?
3. Over what period will payments be made and of course in what currency?
4. What demographics make up the claimant base i.e. would digital payments work or would people expect physical payments or both?
5. Are there enough choices so that all claimants can select what makes most sense to them?
6. How much of the available fund has been allocated to processing/ transaction fees?
7. What level of data do I expect each claimant to provide during the pay-out process?
8. What constitutes delivered funds to claimants? What happens to funds that are not delivered?
Of course, it can’t be expected that the teams aligned with the core legal process will fully understand payment processing. Likewise, payment processing experts will not understand the full complexities surrounding legal proceedings. What is clear is to reach the collective goal of Access to Justice, which entails holding big businesses accountable to consumers when damage is caused, the entire Collective Proceedings eco-system needs to collaborate early and often to perfect the outcomes.
At BHN, we have distributed millions in disbursements on a global scale and continue to lead the market in obtaining the highest claim rates across the industry. Once we have the claimant
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We all play a role in supporting the Collective Proceedings regime and we look forward to the ongoing collaboration.
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THE AWKWARD RELATIONSHIP BETWEEN ECONOMETRIC
ANALYSIS
AND CARTEL LITIGATION
(EVEN AFTER FOUR DATES)
Introduction
In February this year, the Competition Appeal Tribunal (CAT) published its judgment in Stellantis v Autoliv.1 The CAT concluded that
“…Stellantis has failed to establish that there was a cartel operating over the entire Cartel Period against any of the Stellantis groups. Further insofar as there was cartel activity within this period Stellantis has failed to show that this has resulted in an overcharge”.2
It is the fourth judgment to contain a critical evaluation of the use of econometric analysis in UK cartel litigation cases (following BritNed v ABB in 2018, Royal Mail v DAF in 2023, and Granville v LG in 2024).
To help prove their case, the Claimants submitted several econometric analyses designed to establish and measure any overcharges arising from the allegations. The Defendants limited their evidence to a critique of the Claimants’ work. For various reasons, the CAT concluded that “no useful conclusions can be drawn from the [Claimants’] econometric evidence” and so
“Stellantis has failed to show...an overcharge at all or of the size claimed”. 3
In this article, we briefly comment on some of the reasons why econometric analysis is especially prone to criticism, how these reasons relate to the CAT’s criticisms in Stellantis v Autoliv, and where this leaves the relationship between econometric analysis and cartel litigation.
Why Econometric Analysis
Is Especially Prone To Criticism
When the parties’ analyses point to two different conclusions and a Court or Tribunal
must reach one conclusion, it seems inevitable that one or both analyses will attract some criticism. One could go further and say that the practice of econometric analysis is, by its nature, especially prone to criticism. The introductory sections of most basic textbooks in econometrics help explain why.
“Economic theory is typically crisp and unambiguous…only the most optimistic analyst would expect to find an exact correspondence between his or her model and its real-world counterpart. No model could hope to encompass the myriad of essentially random aspects of economic life”.4
“The process of econometric analysis departs from the specification of a theoretical relationship. We initially proceed on the optimistic assumption that we can obtain precise measurements on all the variables in our correctly specified model. If the ideal conditions are met at every step, the subsequent analysis will probably be routine. Unfortunately, they rarely are”.5
“Although mathematical statistics provides many of the tools used in the trade, the econometrician often needs special methods in view of the unique nature of most economic data, namely, that the data are not generated as the result of a controlled experiment”.6
1 The authors were not involved in Stellantis v Autoliv.
2 [2025] CAT 9, paragraph 281.
3 [2025] CAT 9, paragraph 237.
4 Greene, W. (1999), “Econometric Analysis, 4th Ed.”, Section 1.2.
5 Greene, W. (1999), “Econometric Analysis, 4th Ed.”, Section 1.2.
6 Gujarati, D. (1995), “Basic Econometrics, 3rd Ed.”, Introduction.
Authored by: James Harvey (Director) & Ian Thompson (Associate Director) - Economic Insight
These fundamental challenges exist in most settings and are arguably exacerbated in the context of cartel litigation.
• The economic theory may not be “crisp and unambiguous”. For example, it may be rather unclear when the cartel started and stopped from an economics perspective, or exactly which products and services the cartel may have affected.
• The idea that “precise measurements will be available for all of the variables” is probably closer to delusional than “optimistic”. For example, the passing of time means that important data may have been erased, redefined and very timeconsuming and expensive to obtain.
As discussed below, one cannot help but be struck by the overlap between some of the CAT’s criticisms of the Claimants’ econometric analyses in Stellantis v Autoliv and the fundamental challenges associated with conducting econometric analysis set out above.
• Imagine that the econometric data shows that the prices of a product collapsed during the cartel period. This might be consistent with various explanations.
• Some explanations do not necessarily imply any adjustments or revisions to the theory of harm. For example, it may be that the prices are mismeasured, the costs have fallen, and/or demand has fallen.
• But another possible explanation is that the effect of the cartel ended before the infringing conduct ended.
• Imagine then that an expert’s response to this possibility is to adjust the econometric model to alter the dates of the before-during-after periods. The result is that overcharge is higher in the adjusted model compared to the unadjusted model (because the “low” prices are included in the clean period instead of the cartel period).
rather than the due to the operation of the cartel”.9
Two Of The CAT’s Criticisms Of The Econometric Analyses In Stellantis v Autoliv
Criticism 1: The relationship between the theory of harm and the econometric analysis
One of the CAT’s criticisms of the Claimants’ work was
“The theory of harm which is being tested should not be adjusted or revised in the light of the econometric data to ensure some desired result”.7
The words “to ensure some desired result” are very important because they make this criticism uncontentious.
Should one ever revise the theory of harm being tested in the light of the econometric data? Here is a potentially contentious example.
How might this adjustment be evaluated at trial? It could be perceived as a legitimate response to what the expert observed in the data and (perhaps) uncertainty regarding the specifics of the theory of harm. But it could also be perceived as a naked attempt to increase the overcharge by manipulating the theory of harm. A lack of consistency or transparency in decision-making is more likely to result in the second perception prevailing.
Criticism 2: The relevance of apparent discrepancies between the results of similar econometric analyses
Another criticism of the Claimants’ work related to apparent discrepancies between the results of the Claimants’ econometric analyses. The CAT noted that the existence of large and statistically significant undercharges for one product (seatbelts)
“must be explained by other factors that are not included in the model”.8
It then stated that
“We have no evidence upon which reasonably to speculate that seatbelts prices are harder to model compared with the other types of OSS. The figures for seatbelts leads this Tribunal to the conclusion that that the recorded overcharges for airbags and steering wheels are equally likely to be due in whole or in part to omitted variables
So, here we have a real-life example that clearly demonstrates why it is indeed (to say the least) an “optimistic assumption” that we can “obtain precise measurements on all the variables in our correctly specified model”.
The gist of the CAT’s concern is of course understandable. But it seems like a significant decision to discard the results of two models with potential problems based on observing another model with an actual problem. To secure a different outcome, it seems that one should get to bottom of the “problem”, otherwise one risks:
“Without getting to the bottom of the problem and demonstrating that one particular formulation leads to reliable results, we are left with a model that is so unreliable in its outputs that it is unusable”.10
Conclusion
Where does all this leave the awkward relationship between econometric analysis and cartel litigation?
It seems most likely that the relationship will continue and will continue to be awkward. One cannot sidestep the fundamental challenges associated with econometric analysis and they are exacerbated in the context of cartel litigation.
Perhaps what is more important is how parties and their experts will respond to the guidance implied by the criticism. It would be good if it promotes a common understanding of what the CAT expects to see in econometric submissions. But it would be bad if it promotes excessive caution, such as experts avoiding legitimate modelling choices because of the risk of a misperception or misunderstanding emerging at trial.
Let’s see what happens on the fifth date.
7 [2025] CAT 9, paragraph 201.
8
9
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What Do You See As The Most Important Thing About Your Job?
Good decisions need good evidence. My role as an economist is to help clients, regulators, and courts make decisions grounded in rigorous analysis — with a clear-eyed view of evidence, incentives, and long-term consequences.
What Motivates You Most About Your Work?
I get to work alongside incredibly smart people, all bringing different perspectives. It keeps me curious, challenged, and always learning.
What Advice Would You Give To Your Younger Self?
Your career is a marathon, not a sprint. Play the long game.
What Does The Perfect Weekend Look Like?
A quiet Saturday morning with a good book and great coffee at my favourite little café in Greenwich.
60 SECONDS WITH... AASTHA MANTRI ASSOCIATE DIRECTOR ECONOMIC INSIGHT
What Songs Are Included On The Soundtrack To Your Life?
Hamilton
What Personality Trait Do You Most Attribute To Your Success?
Resilience
Dead Or Alive, Which Famous Person Would You Most Like To Have Dinner With, And Why?
Barack or Michelle Obama — i’d love to understand how they stay motivated and keep pushing towards their vision, especially in the face of challenge and change.
What Do You See As The Most Significant Trend In Your Practice In A Year’s Time?
The evolving role of competition authorities, especially the CMA, is reshaping the landscape — I expect to see more focus on ex-ante regulation (especially for tech); AI adoption (especially its role on capital and labour incentives); behavioural remedies in mergers; and
increasing use of the CMA’s new consumer protection powers.
What Legacy Would You Hope To Leave Behind?
That economics doesn’t sit on the sidelines. I’d like to have helped make strategic economic advice as essential and accessible to businesses as great legal advice.
If You Could Only Eat One Takeaway For The Rest Of Your Life, What Would It Be?
Dishoom – the food is great, but also, the place reminds me of the best parts of my favourite city, Mumbai.
POLICING EXCESSIVE PRICING
DOES PRIVATE ENFORCEMENT STILL HAVE A ROLE FOLLOWING LE PATOUREL?
Introduction
On 19 December 2024, the UK Competition Appeal Tribunal (the “CAT”) handed down its long-awaited judgment in Justin Le Patourel v BT Group Plc and British Telecommunications Plc,1 the first opt-out collective action to go to trial.
The judgment supplements a relatively limited body of English case law concerning abuse of dominance by means of excessive pricing. The failure of the claim raises important questions regarding the circumstances in which other excessive pricing claims before the CAT might succeed, and is a further contribution to the debate as to the policing of excessive pricing by way of private damages claims, and the extent to which it should be restricted to exceptional cases, as many commentators suggest.
Brief Recap Of The Judgment
Mr Le Patourel, the class representative (the “CR”), alleged that BT abused its dominant position in the telecommunications market by imposing excessive and unfair prices for landline telephone services to residential addresses (Standalone Fixed Voice (or “SFV”) services). The CR represented approximately 2.3 million BT customers.
Two key preliminary questions for the CAT were:
(1) market definition; and (2) whether BT was dominant in that market.
BT lost on both of these points, the CAT concluding that the market was limited to SFV services (and that it did not extend to “bundles” of telephone and broadband services), and that BT was dominant in that narrower market.
The analysis therefore proceeded to the two limbs (established by the seminal United Brands decision2) that must both be made out to establish that a defendant has abused its dominant position through excessive pricing:
• Limb 1: Is the price excessive (by reference to a competitive benchmark, i.e. cost plus a reasonable rate of return)? Whilst a full treatment of the application of
Limb 1 is beyond the scope of this article, it was held, following detailed consideration of the costs attributable to SFV services and the level of margin on those services that the CAT deemed reasonable, that BT’s prices were excessive. In this case, the CAT considered, with reference to the characteristics of the market, that “any excess would have been significant if it was 20% or more above the competitive benchmark” – although future cases in different markets may reach different thresholds.
• Limb 2: Is the excessive price unfair either in itself or when compared to competing products? Crucially, the CAT did not conclude that BT’s pricing was unfair in and of itself. At the heart of this finding was the CAT’s view that BT’s pricing bore a reasonable relation to the value of its services which customers were willing to pay a premium for, taking account of matters such as the value of BT’s brand and additional product features (even though the price had been found to be excessive under Limb 1). The CAT also found significant evidence of switching by customers (both to other services and those of BT’s competitors), such that it could not be said that there was a captive customer base. The CAT also did not consider BT’s pricing to be unfair by reference to comparisons made to competitor pricing.
Authored by: Adam Bradley (Senior Associate), Joseph Moore (Partner), Barney Stannard (Partner), Rosamund Browne (Knowledge Counsel) and Adam Bradley (Senior Associate) - Travers Smith
The CR made much of the concerns regarding BT’s pricing expressed by Ofcom in provisional conclusions reached in 2017. Although the CAT has greater latitude than the High Court to take non-binding regulatory findings into account in its judgments, the CAT was not materially swayed by Ofcom’s views, on the basis that the evidence before it was superior to that available to Ofcom in 2017.
Accordingly, whilst many class representatives’ claims are (at least to some degree) born out of nonbinding decisions of UK and overseas regulators and whilst such decisions will continue to be important for the purposes of passing the low bar for certification, class representatives will now, no doubt, be careful that they do not place undue reliance on such decisions at trial.
market, such as telecommunications services, where brand value, peripheral services and the ability to switch are more likely to be relevant. These factors were critical to the CAT’s assessment of Limb 2 in Le Patourel.
But this is not to say that other consumer CPOs before the CAT with an excessive pricing element, such as Gormsen v Meta (social networking services) and Kent v Apple (iOS app store), are doomed to fail. The length of the Le Patourel judgment (300 pages) demonstrates the detailed factual and expert analysis required. Claimants can be heartened by the CAT’s willingness (at Limb 1) to reach findings that BT’s prices only needed to be 20% above a benchmark (which the CAT constructed ex post) in order to be excessive. Conversely, defendants will take encouragement from the CAT’s comments on brand value / loyalty and product features to rebut the allegations of unfairness at Limb 2.
What Might The Judgment Mean For Other Damages Claims?
The outcome in Le Patourel contrasts with the previous pharmaceutical cases in Phenytoin3, Liothyronine4, and Hydrocortisone5, often viewed as the bedrock of the English excessive pricing jurisprudence. There, the relevant prices were found to be excessively high and to not bear any reasonable relation to the economic value of the drugs (such that the prices were also deemed unfair).
The amount by which prices were above the competitive benchmark in the pharmaceutical cases may well serve as a point of distinction; indeed, in Phenytoin, the CAT went as far as to describe the prices as “grotesque”. However, in pharmaceutical markets, considerations around additional value to the consumer may be influenced by the necessity and limited substitutability of prescribed drugs; patients often cannot switch readily, heightening the risk of prejudicial price increases. Such markets are therefore inherently different to a more typical consumer
A More Fundamental Change In Approach?
Critically, the digital markets which form the subject of the Gormsen and Kent cases could come under increased scrutiny following the introduction of the Digital Markets, Competition and Consumers Act 2024. The implementation of pro-competitive interventions by the CMA in digital markets that will follow reflects a move towards a more ex ante approach to protecting consumers, in contrast to the ex post approach offered by litigation based on claims of excessive pricing which generates significant uncertainty of outcome for businesses and consumers after the impugned prices have been charged. Although the CMA’s intervention in Le Patourel was relatively modest, it will be interesting to see whether it becomes more interventionist in claims concerning digital markets.
As Counsel for BT noted in Le Patourel, US federal law (considered by some as the home of antitrust law) does not recognise pure excessive pricing as a violation of antitrust law and takes the view that the presence of ex ante regulation in a sector undermines the appropriateness of antitrust intervention. That is not the approach currently taken in the UK, but the difficulties in bringing excessive pricing cases, underscored by the CAT’s approach to Limb 2 in Le Patourel, might support the view of many commentators that private damages claims of this nature ought to be reserved to exceptional cases.
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SPORTS BROADCASTERS FINED FOR ANTICOMPETITIVE COLLUSION ON RATES OF PAY: WHAT LESSONS CAN BUSINESSES LEARN?
Authored by: Paul Walsh (Partner) - Hill Dickinson
The CMA recently issued fines totalling £4.2 million following an investigation involving major broadcasting/production companies in the UK. This resulted in five companies accepting that they had unlawfully shared sensitive information on rates of pay for freelancers including sound technicians and camera operators.
What Happened?
Sky, the BBC, ITV, BT and IMG had routinely engaged freelance staff in connection with the production and broadcasting of sports events including football matches and rugby tournaments.
The investigation uncovered 15 instances in which, in pairs, these companies colluded to illegally exchange sensitive information, for example regarding day rates and pay
rises for freelance workers, with one another.
It was acknowledged that their aims had been variously to:
• co-ordinate rates of pay to freelance workers,
• avoid “bidding wars”,
• align and benchmark rates, and
• present a united front with competitors.
The CMA concluded that the companies’ conduct breached the requirements of Chapter I of the Competition Act 1998 as it had as its object the prevention, restriction or distortion of competition within the UK. It made no findings as to the effect of the infringements.
Fines Of £4.2 million
The BBC, ITV, BT, IMG and Sky each admitted to breaches of competition law and each concluded settlements with the CMA. The fines issued were discounted and ranged between £1.7 million for BT (which had committed 6 infringements) and £424k for the BBC (for 3 infringements). Sky also admitted 10 infringements but availed itself of the CMA’s leniency policy to avoid a fine by choosing to report the issue and to assist the CMA with its investigation.
So What Should Businesses Do Or Avoid Doing?
The outcome of this investigation into sports production and broadcasting serves as a useful reminder of the need to ensure that companies in all sectors implement fair pay policies and processes to cover freelance and other staff, so as to ensure protections and promote healthy competition in the labour market.
So what lessons can businesses learn from this? Our top tips to avoid falling foul of the law in this regard:
• Don’t Share Sensitive Information: Do not exchange sensitive information about pay rates, salary ranges, or other compensation details with competitors;
• Independent Rate-Setting: Ensure that all pay rates and compensation packages are set independently based on the business’ own circumstances without any coordination, collusion or agreement with other companies;
• Avoid Wage Fixing: Do not agree with other businesses to fix wages or set salary caps for workers;
• Anti-Poaching: Avoid entering into any agreements with competitors which would prevent you from hiring or “poaching” employees from one another;
• Compliance Training: Regularly train employees, especially those involved in hiring and compensation decisions, on competition laws and the importance of compliance;
• Clear Policies: Establish and enforce clear policies regarding the sharing of information with competitors and ensure all employees are aware of these policies;
• Internal Audits: Conduct regular internal audits to ensure compliance with competition laws and to identify any potential risks or breaches; and
• Transparency: Promote transparency within the company about how pay rates are determined and ensure that these processes are fair and unbiased. Pay should be based on clear and fair criteria like performance, skills or experience.
Discounts to Financial Penalties
The CMA has a discretion to impose a financial penalty on an undertaking which has intentionally or negligently committed an infringement of the Chapter 1 prohibitions. Penalties are to reflect the seriousness of infringement and to deter infringing undertakings and other undertakings that may be considering anti-competitive activities from engaging in them.
If a business finds itself in the unenviable position of having committed an infringement of competition law in this regard, there are still essential steps to be considered urgently to seek to minimise or mitigate the impact.
The first thing to consider is the CMA’s leniency policy. In summary, a business that has infringed competition law in this regard can be granted immunity from penalties or a reduction in penalty in return for reporting the anti-competitive conduct and assisting the CMA with its investigation. The CMA has published detailed guidance on leniency.
In this instance, Sky (which had committed 10 infringements) was the first of the companies to report its involvement, and also assisted the CMA with the investigation. As a result, it did not receive any fine from the CMA. Contrast this with the next biggest offender, BT, which committed 6 infringements and incurred a financial penalty of £1.7m.
Co-operation with a CMA investigation may serve as a mitigating factor and this requires conduct over and above mere compliance with CMA timescales. Examples of co-operation which may count as mitigation include provision of staff for voluntary interviews and/ or arranging witness statements from relevant individuals. Undertakings benefitting from the leniency programme will not receive any additional reduction in financial penalties on this basis because continuous and complete cooperation is a condition of leniency.
Second, businesses should also be aware that the CMA may enter into a settlement agreement with a party it is investigating if that business:
• admits that it has acted in breach of competition law;
• agrees to pay a fine; and
• accepts and assists in a streamlined administrative procedure for the remainder of the investigation.
The fines issued by the CMA in such circumstances will normally be subject to a settlement discount, which may be substantial. The outcomes for the five companies involved in this investigation are illuminating in this regard. Sky was not fined at all. BT, IMG and ITV assisted with the CMA’s investigation and so benefitted from leniency discounts, and all four companies received settlement discounts which reduced the fines they would otherwise have incurred, as follows:
• BT’s fine was subject to a 15% leniency discount and 20% settlement discount;
• IMG benefitted from a 40% leniency discount and 20% settlement discount;
• ITV a 42.5% leniency and 20% settlement discount; and
• BBC a 20% settlement discount.
Updated Guidance Expected
On the back of this and other investigations, the CMA has indicated that it plans to publish updated guidance in the near future, to try to help businesses ensure compliance with competition law in the labour market. Employers need to be aware that they must avoid unlawful collusion on employee pay.
Conclusion
The key message is that businesses must set pay rates entirely independently of their competitors if they are to protect employees’ interests, keep pay competitive, and avoid the financial and potentially business critical risks that can arise from behaving anti-competitively.
We suggest if you are in any doubt as to compliance in this regard, you seek legal advice from experts to ensure your business policies and practices do not fall foul of competition law and regulation.
AN ITALIAN PERSPECTIVE ON THE ABUSE OF DOMINANT POSITION IN THE PHARMACEUTICAL SECTOR AND STANDARD OF PROOF: THE PFIZER CASE
Well before Art. 9 of the Directive 2014/104/EU (so called Damages Directive), Italian case-law has been consistent in affirming the status of ‘privileged evidence’ of the Italian Competition Authority’s (ICA) decisions establishing anti-competitive infringements, to alleviate the burden of proof on the plaintiff.
In an important decision concerning an abuse of a dominant position in the pharmaceutical market, the Italian Supreme Court sets out key points concerning the burden of proof.
With decision No. 9181/2012, the ICA fined Pfizer for abusing its dominant position in the market for ‘prostaglandins’ pursuant to Article 102 TFEU. Pfizer, a company of the corporate group headed by Pfizer Inc. under US law, owner of the world’s largest pharmaceutical industry, produces the ‘Xalatan’, necessary for the treatment of glaucoma. ICA’s found that, through exclusionary conduct, Pfizer delayed the access in the Italian market for other medicines similar to ‘prostaglandins’, but significantly cheaper.
Following the ICA’s decision, the Ministry of Health and the Ministry of Economy and Finance sued Pfizer for damages for the overcharge paid by the National Health Service to reimburse patients who paid a higher price than they would have paid with the equivalents.
The Tribunal rejected the claim for damages for the:
(i) inapplicability of Art. 9 of Damages Directive and, therefore, the non-binding nature of the ICA’s decision; (ii) lack of proof of the damage and of the causal link; (iii) lack of proof as to the expenses incurred by the National Health Service.
On the contrary, the Court of Appeal upheld the request for damages relying on the privileged evidence offered by the ICA’s decision as to the existence of the antitrust infringement and on the proof of the higher costs paid by the NHS, ordering Pfizer to pay more than €13 million in damages, plus interest.
Rejecting Pfizer’s recourse, the Supreme Court of Cassation, with judgement No. 9/2024, set out relevant milestones concerning the standard of proof concerning:
(i) the value of the ICA’s decisions before the Damages Directive; (ii) the nature of the damage caused by abuse of a dominant position and the standard of proof; (iii) the proof of the causal link.
(i) With regard to the first point, it is well known that Article 9 of the Damages Directive established the binding nature of a final decision of a national competition authority or by a review court for the purposes of an action for damages.
The Italian legal system transposed this provision with Article 7 of Legislative Decree 3/2017, but prior to the entry into force of the Legislative Decree 3/2017, Italian case-law gave to the ICA’s decision the status of ‘privileged evidence’ on the existence of the antitrust infringement, not on the damage or the causal link.
With judgement No. 13486/2011, the Italian Supreme Court expressly held that, if ICA has found a violation of competition law and sanctioned the defendant, the latter is entitled to provide contrary evidence, but without being able to challenge, in civil proceedings, the facts underlying the finding of an infringement of competition law based on the same evidence or arguments already dismissed by the ICA.
In other terms, the decision finding an infringement of competition law by the ICA enjoyed in Italian legal system, well before to the Damages Directive, a superior force compared to other types of evidence. The fact that the ICA’s decision was privileged evidence significantly limited the defendant’s arguments on the infringement of competition law.
Moreover, any ICA’s decision was fully capable of proving the an of antitrust damages, namely the infringement of competition, as recently confirmed by the Supreme Court in judgement No. 9 of 2 January 2024.
(ii) On the nature of the damage caused by abuse of a dominant position and the standard of proof, the Italian Supreme Court reminds us that the damage
caused by abuse of a dominant position (as well as other antitrust damages) is not in re ipsa, but, as a different and further consequence from the infringement of Competition law, must be proven.
However, again to lightening the burden of proof on the plaintiff, the Supreme Court helds that damages may also be proven by presumptions. In other words, it is a matter of alleging elements from which it can be inferred according to a normality criterion (so called id quod plerumque accidit) that the plaintiff has been damaged by the anti-competitive conduct.
The Italian Supreme Court’s decision in the Pfizer case is important for at least two reasons.
On the one hand, it confirms the long-standing orientation of Italian case-law of giving significant value, in civil proceedings, to the decisions of the competition authorities, thus facilitating the plaintiff and ensuring consistency between public and private enforcement.
On the other hand, it sets an important precedent that may be used in future similar cases, such as that of Teva, recently sanctioned by the European Commission also for an abuse of a dominant position through exclusionary conduct in the pharmaceutical sector (case number AT.40588).
Relevant elements to prove the harm may also be found in the ICA’s decision. In that case, the Ministries attached documentation attesting the sales of ‘Xalatan’ in the period between October 2009 and May 2010, and comparing the price of that product with that of the generic medicine, also on the base of the evaluation carried out by ICA, sufficient elements emerged to determine the higher costs paid by the NHS.
(iii) also in relation to the proof of the causal link, although the privileged evidential value of the ICA’s decision does not extend to the causal link (like Article 9 of the Damages Directive), presumptions could be invoked to prove the causal link (also emerging from the ICA’s decision). Among several possible causes, the most probable one must be preferred. In the present case, the higher cost paid by the NHS was imputable to Pfizer’s exclusionary abuse.
1631/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) ANGLIAN WATER SERVICES LIMITED AND (2) ANGLIAN WATER GROUP LIMITED
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1603/7/7/23 - PROFESSOR CAROLYN ROBERTS V SEVERN TRENT WATER LIMITED AND SEVERN TRENT PLC
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1599/7/7/23 - DOUG TAYLOR V BLACK HORSE LIMITED AND OTHERS
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1582/7/7/23 - CHARLES ARTHUR V ALPHABET INC. & OTHERS
1572/7/7/22 - MR CLAUDIO POLLACK V ALPHABET INC., GOOGLE LLC, AND OTHERS
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1523/7/7/22 - BSV CLAIMS LIMITED V. BITTYLICIOUS LIMITED AND OTHERS
1468/7/7/22 - MR. JUSTIN GUTMANN V. APPLE INC., APPLE DISTRIBUTION INTERNATIONAL LIMITED, AND APPLE RETAIL UK LIMITED
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1433/7/7/22 - DR LIZA LOVDAHL GORMSEN V. META PLATFORMS INC., META PLATFORMS IRELAND LIMITED AND FACEBOOK
1336/7/7/19 - MR PHILLIP EVANS V BARCLAY BANK PLC AND OTHERS
WHAT ‘AMERICA FIRST’ MAY MEAN FOR COMPETITION LAW ENFORCEMENT AND THIRD-PARTY FUNDING OF CONSUMER CLAIMS ON BOTH SIDES OF THE ATLANTIC
Authored by: Christopher Garvey (Founder) - Sachenga & Co.
The Trump administration’s “America First” policy, central to its economic and foreign agenda as of March 2025, prioritizes U.S. national interests across government actions, including competition law enforcement. Historically a shield for domestic markets and consumers, competition law may now serve trade and foreign policy ends, reshaping enforcement on both sides of the Atlantic and affecting third-party funding of consumer claims for competition law breaches.
national champions, and punishing political rivals, to suit the Trump-Vance agenda. Third, foreign firms, especially from nations like China targeted by U.S. trade policy (e.g., electric vehicle or solar manufacturers), may face more aggressive challenges, particularly if seen as presenting subsidized threats to fair competition.
This shift reflects a unitary executive model, asserting presidential control over agencies like the DOJ and FTC. Trump’s appointees—Gail Slater (DOJ Antitrust Division) and Andrew Ferguson (FTC Chairman)—are loyalists tasked with aligning enforcement to White House goals.
Shifting U.S. Enforcement Priorities
“America First” signals several trends in U.S. competition policy. First, the Department of Justice (DOJ) and Federal Trade Commission (FTC) are expected to be much more overtly partisan and aligned with White House policy than was previously the case. Second, the DOJ and the FTC will focus scrutiny in “strategically vital” sectors—energy, healthcare, manufacturing, technology—favouring
Gail Slater (a previous advisor to Vice President JD Vance) received Senate confirmation on March 11, 2025, and has yet to make an official pronouncement about the DOJ’s enforcement priorities. However, she raised concerns about concentrated markets threatening viewpoints during confirmation hearings, hinting at a novel angle of examining censorship as a competitive harm.
The focus on censorship is echoed by Andrew Ferguson (described by President Trump as “the most ‘America First’ and pro-innovation FTC Chair in our Country’s History”), who has suggested in recent public comments the FTC investigate whether tech platforms collude to set ‘shared censorship policies’, framing such
action as potential antitrust violations under Section 1 of the Sherman Act.
However, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, overturning decades of Chevron deference, limits agency discretion. Courts now hold final interpretive authority over statutes, setting up potential clashes with executive priorities if agency enforcement exceeds statutory authority.
Some federal judges, including Trump appointees and Supreme Court justices like Roberts and Thomas, may back “America First” readings of competition laws, even if strained. However, judicial resistance—met with growing threats to impeach judges defying the President’s agenda—could also trigger a constitutional standoff. This tension injects additional uncertainty into controversial mergers and enforcement actions, especially involving companies or countries that have fallen foul of the current Administration.
Transatlantic Ripples
European regulators, like the European Commission (EC) and UK Competition and Markets Authority (CMA), though structurally independent, are not immune to US political influence. The EC has targeted the U.S. tech giants— Amazon, Google, Apple, Meta— on numerous fronts, levying nearly $5 billion in fines in recent years. Vice President JD Vance, at the 2025 Munich Security Conference, branded these fines “discriminatory,” hinting at trade retaliation if Europe persists.
Digital Markets Act (DMA) gatekeeper rules, which have clearly irked Trump officials, European courts and regulators will face a tough choice. They can stick to their guns, or even intensify their efforts, prioritizing consumer protection at the risk of inflaming trade tensions further. Or they could compromise and try to find some middle ground, risking public backlash in Europe.
Implications for ThirdParty Funding
These dynamics may impact the market for third-party funding of consumer competition claims:
• Europe and UK: Funders may shy away from cases against U.S. firms or business interests that are national champions or have close ties to the White House (think Elon Musk or Tesla) for fear that political pressure may cause regulators and courts to hesitate or cap damages, or that they themselves may become a target for retaliation. This could weaken consumer protections, leaving claimants underserved.
Conclusion
“America First” policy imperatives may reframe competition law as a geopolitical lever, potentially favouring U.S. firms while straining transatlantic enforcement and collaborative historical ties. Courts on both continents will need to navigate this challenging landscape, balancing executive intent, statutory limits, comity and geopolitical stakes.
Time will tell the long-term impact this has, but it is likely that increased geopolitical uncertainty will chill enthusiasm for third-party funding of competition infringement claims against major US companies in Europe in the near term, to the likely detriment of consumers.
The CMA, post-Brexit, initially blocked Microsoft’s $69 billion acquisition of Activision Blizzard, before clearing the deal after Microsoft proposed remedies, including divestiture of certain cloud gaming rights. The CMA’s new powers under the Digital Markets, Competition and Consumers Act (DMCCA) 2024 (effective from April 2025) will enable fines of up to 10% of global turnover, potentially impacting US firms more significantly going forward.
The DOJ and FTC have a robust history of collaboration with European regulators, particularly the EC, on competition enforcement, evidenced by joint cartel busts, coordinated merger reviews, information sharing, regular engagement, and formal arrangements such as the 2011 U.S.-EU Best Practices on Cooperation in Merger Investigations. It remains to be seen, however, whether the ‘America First’ policy will drain the spirit of cooperation.
If US pressure ramps up against the treatment of US tech companies, particularly with respect to the EC’s
• U.S.: The DOJ and FTC might wield competition law to target foreign competitors as a means to protect US industry (e.g., Chinese tech). It may also be used to settle domestic political scores. This may present opportunities for funders in some cases (e.g., backing companies or consumers that allege harm by a foreign competitor), though judicial restraint may still limit payouts in cases which push the regulatory envelope too far.
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