UK: Cartels & Leniency In The United Kingdom

Last Updated: 18 February 2009
Article by Simon Holmes and Philipp Girardet

This article first appeared in the second edition of The International Comparative Legal Guide to: Cartels & Leniency; published by Global Legal Group Ltd, London www.iclg.co.uk

1 The Legislative Framework of the Cartel Prohibition

1.1 What is the legal basis and general nature of the cartel prohibition e.g. is it civil and/or criminal?

The legal basis for the cartel prohibition in the UK is section 2 of the Competition Act 1998 (the "Competition Act") and section 188 of the Enterprise Act 2002 (the "Enterprise Act"). In addition, Council Regulation 1/2003 allows the competition authorities and courts of EU Member States such as the UK to enforce the cartel prohibition under article 81 of the EC treaty (see the EU chapter for further details).

The cartel prohibitions under the Competition Act and article 81 of the EC Treaty are civil/administrative in nature and exclusively relate to the conduct of companies. The parallel cartel prohibition under the Enterprise Act is criminal and exclusively relates to the conduct of individuals.

1.2 What are the specific substantive provisions for the cartel prohibition?

Section 2 of the Competition Act 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 (the "Chapter I prohibition"). The Competition Act contains a non-exhaustive list of corporate conduct that is prohibited by the Chapter I prohibition and this includes, among others, agreements, decisions or practices which:

  • directly or indirectly fix purchase or selling prices or any other trading conditions;
  • limit or control production, markets, technical development or investment; or
  • share markets or sources of supply.

The Chapter I prohibition applies both to horizontal agreements between competitors as well as vertical agreements between, for example, a wholesaler and a retailer. There are certain limited exemptions that are described under question 1.5 below.

Under section 188 of the Enterprise Act an individual is guilty of a criminal offence if he dishonestly agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements between at least two undertakings involving any of the following:

  • price fixing;
  • market sharing;
  • limiting supply or production; and
  • bid-rigging.

The criminal cartel offence only applies to horizontal arrangements between companies which were brought about by the dishonest conduct of two or more individuals.

If the cartel arrangements have been made in the UK, it is irrelevant for both the Chapter I prohibition and the cartel offence whether the restrictive arrangements have actually been implemented in the UK.

1.3 Who enforces the cartel prohibition?

In the UK both the Chapter I prohibition under the Competition Act and article 81 of the EC Treaty are enforced by the Office of Fair Trading ("OFT") as the principal competition authority in the UK. In addition, the following UK sectoral regulators have concurrent jurisdiction to investigate cartel conduct in their sectors under the above provisions: OFCOM (communications); OFGEM (electricity and gas); OFREG NI (energy in Northern Ireland); OFWAT (water and sewerage); CAA (civil aviation); and ORR (railway services).

Investigations and prosecutions under the criminal cartel offence under the Enterprise Act in England, Wales and Northern Ireland are conducted by the OFT or the Serious Fraud Office ("SFO"). Private prosecutions may only be brought with the consent of the OFT. In Scotland, prosecutions will be brought by the Lord Advocate through the offices of the International and Financial Crime Unit of the Crown Office.

1.4 What are the basic procedural steps between the opening of an investigation and the imposition of sanctions?

The OFT (or a regulator with concurrent jurisdiction) starts an investigation on the basis of one or more of the following three grounds: (i) its own market intelligence; (ii) following a complaint; or (iii) following a leniency application. Investigations started on the basis of (i) and/or (ii) are referred to as 'own initiative' cases. The OFT may also obtain evidence from leniency applicants. The OFT can exercise its formal powers of investigation (see Section 2 below) where there are 'reasonable grounds for suspecting' that civil or criminal cartel conduct has occurred. In cartel cases, the OFT will usually conduct simultaneous parallel unannounced inspections (or 'dawn raids') of relevant business and residential premises to obtain further incriminating evidence.

Once the OFT believes that it has sufficient evidence in its possession to prove the suspected cartel conduct, it will issue a statement of objections to the alleged cartel participants setting out the facts upon which it relies, its reasoned provisional conclusions and the action which it intends to take (for example, the imposition of fines). The addressees of the statement of objections then have the opportunity to inspect the OFT's investigation file, to make written submissions and to attend an oral hearing to respond to the allegations advanced in the statement of objections. If, after having had regard to the parties' written and oral submissions, the OFT concludes that it has sufficiently strong evidence to prove the alleged cartel conduct it will issue an infringement decision to all parties concerned imposing fines. Anon-confidential version of the decision will then be published on the OFT's website.

The OFT investigates all cartel cases in accordance with the standards required for criminal investigations. This allows the OFT to convert a civil investigation into a criminal investigation. Alternatively, the OFT can decide to open a separate parallel criminal investigation (in which case a separate investigation team will be formed and strict disclosure rules will apply between the two investigation teams).

In the case of criminal investigations, the OFT or the SFO (or the Crown Office in Scotland) starts the investigation on the same basis as civil investigations. The OFT/SFO's formal investigatory powers are similar but more extensive in criminal investigations than in civil investigations (see Section 2 below). Where the OFT/SFO believes that it has sufficient evidence to bring a successful prosecution it will commence criminal proceedings. Proceedings can be brought in the magistrates' court or before a jury in the Crown Court.

A criminal investigation can be started by the OFT and then subsequently be transferred to the SFO for further investigation and/or prosecution. The SFO will, however, only prosecute cartel cases, which amount to serious or complex fraud. This would, for example, exclude smaller bid-rigging cases.

1.5 Are there any sector-specific offences or exemptions?

The Competition Act excludes certain agreements from the Chapter I prohibition, for example agreements relating to the production or trade of agricultural products and agreements that are subject to competition scrutiny under other legislation such as the Financial Services and Markets Act 2000, the Broadcasting Act 1990 and the Communications Act 2003. Further, the Secretary of State may order that the Chapter I prohibition should not apply to an agreement or agreements of a particular description if there are exceptional and compelling public policy reasons to do so. This power has been used to exclude certain defence related agreements from the Chapter I prohibition.

There are currently no sector-specific exemptions for the cartel offence under the Enterprise Act.

1.6 Is cartel conduct outside the UK covered by the prohibition?

The Chapter I prohibition applies to all restrictive agreements, decisions or practices which are or are intended to be, implemented in the UK. The criminal cartel offence under the Enterprise Act only applies to agreements struck outside the UK if they are implemented in whole or in part in the UK. The above 'implementation' tests are generally accepted to amount to an 'effects' test.

2 Investigative Powers

2.1 Summary of general investigatory powers.

Table of General Investigatory Powers

 

Please Note: * indicates that the investigatory measure requires the authorisation by a Court or another body independent of the competition authority

2.2 Specific or unusual features of the investigatory powers referred to in the summary table.

In civil investigations the OFT can only take originals where this is necessary to preserve the documents or where it is not reasonably practicable to take copies. Any originals must be returned within three months. In criminal investigations, the OFT/SFO will always take possession of the original documents.

2.3 Are there general surveillance powers (e.g. bugging)?

The OFT has the power to authorise 'directed surveillance' (for example watching an office building from a public place to establish when the office opens and shuts) and to use 'covert human intelligence sources' (i.e. informants) in its cartel investigations both under the Competition Act and the Enterprise Act.

In criminal cartel investigations the OFT is further granted the power of 'intrusive surveillance' (for example bugging a hotel room) and the related power of 'property interference' which allows the OFT, for example, to place listening devices into private places. The SFO has the same powers.

2.4 Are there any other significant powers of investigation? In criminal cartel offence investigations, the OFT/SFO also has the power to obtain access to communications data (for example, obtaining from the telecommunications provider, records of telephone numbers called by individuals under investigation).

This power is not available in civil cartel investigations. The OFT has recently adopted an informants programme, under which financial rewards of up to £100,000 are available for significant 'inside information' about the existence of a cartel, submitted by a party who has knowledge of, but is not involved in, the cartel. This is an entirely discretionary possibility available to the OFT. As a general rule, it is not envisaged that persons involved in a cartel will be eligible for a financial reward, although they can apply for leniency. Nevertheless the OFT has left open the possibility of simultaneous application of leniency and financial rewards in cases where, for example, the person concerned was involved in a very indirect way in the cartel.

2.5 Who will carry out searches of business and/or residential premises and will they wait for legal advisors to arrive?

When entering business or residential premises under a civil or criminal search warrant, the OFT can make use of outside (third party) investigators and forensic IT specialists to assist the OFT officers with their search. Any accompanying persons must be named on the warrant. In practice, having secured the premises, the OFT will usually wait for about 30 minutes for the arrival of legal advisors before commencing its search.

2.6 Is in-house legal advice protected by the rules of privilege?

Where the OFT investigates cartel conduct under its own national investigatory powers, the UK rules of privilege apply and legal advice provided by both external and in-house counsel may (subject to certain restrictions) be protected. This applies to both investigations of the Chapter I prohibition and article 81 and also covers investigations where the OFT investigates cartel conduct on behalf of another EU competition authority or the European Commission. Where the OFT merely assists the European Commission with its investigation in the UK, and the Commission's EC investigatory powers are relied on, the EC rules of privilege apply and communications containing legal advice provided by inhouse counsel are not protected.

2.7 Other material limitations of the investigatory powers to safeguard the rights of defence of companies and/or individuals under investigation.

The OFT is not entitled to search a person.

In civil investigations, the OFT may compel an undertaking to provide specified documents or specified information but cannot compel the provision of answers to requests for information which might involve an admission on its part of the existence of a competition law infringement, which is incumbent on the OFT to prove.

In criminal cartel investigations, where the OFT/SFO has the power to compel an individual to answer questions, statements made in response to mandatory interview questions may, as a general rule, not be used in evidence against that person on prosecution for the cartel offence.

Part 9 of the Enterprise Act imposes limits on the disclosure of information relating to the affairs of any individual or to any particular business that is obtained in connection with the exercise of any function of the OFT under the Act (including both the OFT's civil and criminal powers of investigation).

2.8 Are there sanctions for the obstruction of investigations? If so, have these ever been used?

There are criminal sanctions (Sections 42 to 44 of the Competition Act) for persons who fail to comply with requirements to provide information, destroy documents or provide false of misleading information in civil cartel cases. If convicted of a criminal offence, a criminal can be punished with a fine and/or imprisonment for a maximum of two years. Financial penalties for undertakings may take into account a failure to co-operate with the OFT. Criminal sanctions for similar offences are contained in the Enterprise Act in relation to criminal cartel offence investigations (please see question 3.2 below).

3 Sanctions on Companies and Individuals

3.1 What are the sanctions for companies?

Any agreement that breaches the Chapter I prohibition is void and unenforceable. In addition, the OFT may impose financial penalties on a company which has intentionally or negligently committed an infringement of the Chapter I prohibition (and/or article 81 of the EC Treaty) of up to 10 per cent of its worldwide turnover.

As a general rule, 'small agreements' between undertakings whose combined annual turnover does not exceed £20 million normally benefit from immunity from financial penalties. However, this safe harbour does not apply to price-fixing agreements and breaches of article 81 of the EC Treaty.

Third parties adversely affected by cartel conduct may take action in the courts to stop the conduct and/or seek damages for any loss suffered as a result of the cartel conduct. See Section 8 for further details.

3.2 What are the sanctions for individuals?

Under the Enterprise Act 2002 it is possible to charge individuals with the cartel offence for conduct committed since 20 June 2003. The cartel offence is triable either in a magistrates' court (summary trial) or before a jury in the Crown Court (trial on indictment). Any individual found guilty of committing the criminal cartel offence before a magistrates' court may be imprisoned for up to six months and/or receive a fine up to the statutory maximum (which is currently £5,000) and may be imprisoned for up to five years and/or receive an unlimited fine if found guilty by a jury on indictment in the Crown Court. Under the normal parole rule, an individual must usually serve at least one half of the sentence passed by the judge.

In addition, where a company has committed a breach of competition law, a director whose conduct in relation to that breach makes him unfit to be concerned with the management of any company going forward, can be disqualified from acting as a company director or shadow director for up to 15 years (under the provisions of the Company Directors Disqualification Act 1986 as amended by the Enterprise Act).

In June 2008 three UK businessmen became the first individuals to be convicted under the new cartel offence provisions, and were sentenced to between two and a half and three years imprisonment, and disqualified from acting as company directors for five to seven years, for bid-rigging conduct in the field of marine hoses. Two of the three individuals were also ordered to surrender assets under confiscation orders of in total £1 million. More recently in August 2008, four British Airways executives were charged with the cartel offence, in relation to the British Airways/Virgin Atlantic Airways fuel surcharges for passenger flights cartel.

3.3 What are the applicable limitation periods?

There is no limitation period for public enforcement action under the Chapter I prohibition of the Competition Act or the criminal cartel offence provisions under the Enterprise Act.

3.4 Can a company pay the legal costs and/or financial penalties imposed on a former or current employee?

The company can, if it so decides, indemnify the legal costs and/or financial penalties imposed on a former or current employee.

4 Leniency for Companies

4.1 Is there a leniency programme for companies? If so, please provide brief details.

The OFT operates a leniency policy for companies in respect of infringements of the Chapter I prohibition under the Competition Act and of article 81 of the EC Treaty. The policy is contained in Section 3 of the OFT's Penalty Guidance (the "OFT's guidance as to the appropriate amount of a penalty", December 2004). In parallel, the OFT also operates a 'no-action' policy offering immunity from prosecution for the cartel offence to cooperating individuals (the "OFT's Cartel Offence Guidance", April 2003). Both policies are closely linked. The two formal leniency and noaction policy documents are supplemented by the OFT's draft final guidance note on the handling of leniency (for companies) and noaction (for individuals - see question 4.2 below) applications (the "Guidance Note for Leniency Applications"). This Guidance is due to be finalised by the end of 2008.The OFT guidance distinguishes four basic types of leniency: (a) Type A immunity; (b) Type B immunity; (c) Type B leniency; and (d) Type C leniency. A company, which has 'coerced' another company into participating in cartel conduct, can only benefit from Type C leniency.

Type A immunity: First to come forward and no pre-existing investigation

To encourage companies to come forward, the OFT will grant total immunity from financial penalties for an infringement of article 81 and/or the Chapter I prohibition to a participant in cartel activity who is the first to come forward where there is no pre-existing investigation and where the company satisfies the following requirements. The company must: (a) provide the OFT with all the information, documents and evidence available to it regarding the cartel activity; (b) maintain continuous and complete co-operation throughout the investigation and until the conclusion of any action by the OFT arising as a result of the investigation; (c) refrain from further participation in the cartel activity from the time of disclosure of the cartel activity to the OFT (except as may be directed by the OFT); and (d) not have taken steps to coerce another undertaking to take part in the cartel activity ("Type A immunity"). Where the above conditions are fulfilled, the OFT will also grant complete criminal immunity under the cartel offence provisions of the Enterprise Act to all cooperating former and current employees of the applicant.

Type B immunity: First to come forward but there is a preexisting investigation

Alternatively, if an undertaking is the first to report the cartel conduct (possibly after an OFT inspection) but does not qualify for Type A immunity because there is a pre-existing investigation, it can still qualify for Type B immunity if it fulfils the other conditions of Type A immunity set out above and is able to 'add significant value' to the OFT's investigation. In return for the company's cooperation and to reward the fact that the company was the first to apply for leniency, the company is granted complete immunity from fines (as under Type A) and complete criminal immunity under the cartel offence provisions of the Enterprise Act to all cooperating former and current employees of the applicant. Type B immunity is, however, not available if the OFT believes that it already has, or is in the course of gathering, sufficient evidence to bring a successful prosecution against specified individuals. The fundamental difference between Type A and Type B immunity is that the former is available as of right if the necessary conditions are met, whereas the latter is discretionary. However, the OFT's Guidance Note for Leniency Applications notes that the grant of Type B immunity (rather than Type B leniency) can be "expected to be the norm rather than the exception".

Type B leniency: First to come forward but there is a preexisting investigation and no immunity is offered

Type B leniency refers to the situation where a company is the first company to report the cartel conduct to the OFT (possibly after an OFT inspection) but does not qualify for Type A immunity because there is already a pre-existing investigation and the OFT exercises its discretion not to offer Type B immunity to the applicant. Under Type B leniency the OFT can offer a reduction in fines of up to 100 per cent and individual criminal immunity for the applicant's cooperating former and current employees. There is, however, no automatic criminal immunity for all cooperating employees under Type B leniency.

Type C leniency: Not first to come forward but can 'add value'

Should the OFT consider that leniency ought to be granted to more than one party in a case, Type C leniency is in principle available to a company which is not 'first in' but can 'add significant value' to the OFT's investigation. Accordingly, it is available to companies which are not the first to apply for leniency and/or which have coerced another undertaking into participating in the reported cartel conduct. In return for the company's cooperation the OFT will grant a reduction of up to 50 per cent of the level of financial penalty imposed under the Competition Act (or the EC Treaty). Criminal immunity for individual former and current employees of the applicant must be agreed on an individual basis with the OFT under Type C leniency.

4.2 Is there a 'marker' system and, if so, what is required to obtain a marker?

The OFT does operate a 'marker' system. In order to secure a marker, an applicant should be able to identify a 'concrete basis for the suspicion' that cartel conduct has occurred. Normally, the applicant would be expected to specify the nature and the emerging details of the suspected infringement and the evidence uncovered so far (that is, its form and substance). A discussion of the timing and process of perfecting the marker by the prompt provision by the applicant of relevant information will then follow.

In principle, markers are only granted on a named basis, i.e. the applicant must disclose its identity at the outset. However, in cases where the applicant wishes to make a parallel application for immunity to the European Commission, a no-names marker may be available from the OFT for a short period of time until the Commission application has been made.

To 'perfect' a marker for Type A immunity, i.e. to be granted conditional immunity, the applicant must be able to provide the OFT with all information available to it in relation to the cartel activity and, as a minimum, that information must be such as to provide the OFT with a 'sufficient basis for taking forward a credible investigation'. In practice, this is a fairly low threshold and the OFT interprets this to mean that the information is sufficient to allow the OFT to exercise its formal powers of investigation, for example to carry out on-site inspections.

To 'perfect' a marker for Type B immunity or leniency or Type C leniency, the applicant must provide all information available to it in relation to the cartel and that information must be such as to add 'significant value' to the OFT's investigation, i.e. the additional information provided must 'genuinely advance the OFT's investigation'.

4.3 Can applications be made orally (to minimise any subsequent disclosure risks in the context of civil damages follow-on litigation)?

Leniency applications can be made on an oral basis. However, all pre-existing written evidence of the cartel will need to be provided to the OFT and witnesses will also need to be made available for interview and to sign witness statements.

4.4 To what extent will a leniency application be treated confidentially and for how long?

The OFT will normally disclose the identity of leniency applicants in its statement of objections to the other parties of a case, i.e. the other addressees. Further, the OFT will reveal the identity of leniency applicants in its final decision, a copy of which will be made available on the OFT's website.

4.5 At what point does the 'continuous cooperation' requirement cease to apply?

The OFT requires leniency applicants to 'maintain continuous and complete co-operation throughout the investigation and until the conclusion of any action by the OFT arising as a result of the investigation'. The OFT considers this to extend to the conclusion of any appeals.

4.6 Is there a 'leniency plus' or 'penalty plus' policy?

The OFT does operate a leniency plus policy (points 3.16 and 3.17 of the OFT's guidance as to the appropriate amount of a penalty: "Additional reduction in financial penalties") but not a penalty plus policy.

Under the OFT's leniency plus policy, an applicant who already benefits from a reduction of fine under leniency in relation to one case (case A) and then subsequently makes a distinct leniency application in relation to an unrelated matter and obtains immunity as a result (case B) will be offered a small additional reduction in its leniency discount in case A.

5 Whistle-blowing Procedures for Individuals

5.1 Are there procedures for individuals to report cartel conduct independently of their employer? If so, please specify.

Individuals can benefit from criminal immunity for the cartel offence as a result of their former or current employer's leniency application (see question 4.1) if they cooperate with the OFT's investigation. However, an individual can also report cartel conduct directly to the OFT in return for a promise of immunity from prosecution for the cartel offence and protection from director disqualification and asset recovery orders i.e. the grant of a so-called 'no-action letter'. In order to be guaranteed a no-action letter, the individual must be the first individual or company to report the relevant cartel conduct. Where an individual applies on his or her own account, the applicant's identity may remain secret (the applicant may be a 'secret source') if the safety of that individual would be in serious jeopardy or other adverse consequences would follow as a result of disclosure of his/her identity.

In cases where the individual within an undertaking reports the cartel on his or her own account before the company does, the company will lose guaranteed corporate and individual immunity status, in circumstances where that company would otherwise have qualified for it. However, the OFT may still grant corporate and individual immunity in such circumstances, depending on what stage the OFT's investigation has reached and the value which it is likely to gain from any additional evidence the company can provide. This is therefore the only possible exception where immunity may still be available even though the applicant is not the first to report the cartel conduct to the OFT (c.f. questions 4.1 above and 9.1 below).

6 Plea Bargaining Arrangements 6.1 Are there any early resolution, settlement or plea bargaining procedures (other than leniency)?

There are no formal plea bargaining procedures in the UK. The OFT has however proved willing to explore innovative case settlement options on a case-by-case basis in the past, recognising the benefits they may give rise to in civil cartel cases under the Competition Act. In December 2007, the OFT reached 'early resolution agreements' with certain parties in its investigation into Dairy Pricing Initiatives. Similarly, in July 2008, the OFT settled with six of the parties in the Tobacco case. In each case, the settlement offer involved the admission of part or all of the alleged infringements in return for a lower fine than would otherwise have been imposed.

7 Appeal Process

7.1 What is the appeal process?

'On the merits' appeals (i.e. both on points of fact and law) on both liability and the amount of any penalty against OFT decisions are heard by the Competition Appeal Tribunal ("CAT"). Cases are heard before a panel consisting of three members: either the President or a member of the panel of chairmen and two ordinary members. The members of the panel of chairmen are judges of the Chancery Division of the High Court and other senior lawyers. The ordinary members have expertise in law and/or relevant fields e.g. economics. The CAT's jurisdiction extends to the whole of the UK.

A further appeal lies from decisions of the CAT either on a point of law or in penalty cases as to the amount of any penalty: to the Court of Appeal in relation to CAT proceedings in England and Wales, and in relation to CAT proceedings in Scotland, to the Court of Session; and in relation to CAT proceedings in Northern Ireland to the Court of Appeal in Northern Ireland. Such a further appeal may only be made with the permission of the CAT or the relevant appellate court.

7.2 Does the appeal process allow for the cross-examination of witnesses?

The appeal process does allow for the cross-examination of witnesses. However, any cross-examination can be limited to any extent or in any manner the CAT deems appropriate.

8 Damages Actions

8.1 What are the procedures for civil damages actions for loss suffered as a result of cartel conduct?

Under section 47A of the Competition Act (amended by the Enterprise Act) any person who has suffered loss or damage as a result of an infringement of either UK or European Community competition law may bring a claim for damages or for a sum of money before the CAT in respect of that loss or damage. In general, claims may only be brought before the CAT when the OFT or sectoral regulator or the European Commission has made a decision establishing that one of the relevant prohibitions has been infringed, and any appeal from such decision has been finally determined. In determining a claim for damages, the CAT is bound by the competition authority's decision that established the infringement. Therefore, at least in theory, the issue of liability should be settled, leaving the CAT to determine causation and quantum (i.e. the amount of any loss and the resulting damages). These claims are referred to as 'follow-on actions'.

Alternatively, actions for damages suffered as a result of cartel conduct can also be brought in the civil courts. Where there is a prior infringement decision by a relevant competition authority, the rules that apply to the CAT (see above) are similar in the civil courts, i.e. the courts are bound by findings of fact and liability by, for example, the OFT and the CAT provided that the time for appeal against a decision has elapsed or the appeal has been determined.

Where there is no prior infringement decision, the claimant must commence an action for damages in the civil courts and must of course establish the infringement itself (i.e. liability) before being able to claim damages.

8.2 Do your procedural rules allow for class-action or representative claims?

Section 47B of the Competition Act (as amended by the Enterprise Act), creates a specific right for representative actions by 'specified bodies' on behalf of named consumers in follow-on cases. There is no equivalent right for representative claims for businesses. At present, the UK Consumers' Association, (Which?) is the only specified body. To date, the Consumers' Association has brought one damages action under this new provision against the sports retailer JJB, which arose from the OFT's Football Replica Kits price fixing decision. (The European Commission criticised the UK procedure in this case as it did not allow identifiable victims to join the representative action at a later stage of proceedings.) In addition, there are Group Litigation Orders ('GLOs') which are a generic multi-party civil procedural device, which in theory allows representative claims to be made. However, in practice, it is very difficult to bring a representative claim on the basis of GLOs.

8.3 What are the applicable limitation periods?

The limitation period for bringing follow on claims in the UK Competition Appeal Tribunal is two years from the determination of any appeals of the underlying infringement decision by the European Commission or the OFT (as recently confirmed in BCL Old Co et al v BASF [2008] CAT 24).

In relation to stand alone actions, the limitation period is six years from when the cause of action accrued or where there is evidence of deliberate concealment (as is the case in most cartel cases) from when the claimant could reasonably have known about the cartel conduct.

8.4 What are the cost rules for civil damages follow-on claims in cartel cases?

Rule 55 of the Competition Appeal Tribunal Rules 2003 places costs at the discretion of the court, taking into account the conduct of the parties in the proceedings and the requirements of justice.

8.5 Have there been any successful follow-on or stand alone civil damages claims for cartel conduct?

While there is clear evidence that claims for damages concerning cartel conduct are increasing, few such cases have actually reached the stage of trial and judgment. In the Crehan case, damages were awarded by the Court of Appeal in 2004 but the decision was overturned by the House of Lords in 2006. To date, there have been no cases in which damages have been awarded by UK courts to third parties for breach of either the Chapter I prohibition or article 81 and ultimately upheld. That said a number of cases have been settled out of court - some for substantial sums.

In November 2007, the OFT published a recommendations paper to the Government entitled "Private Actions in competition law cases: effective redress for consumers and business" to improve the effectiveness of redress for those harmed by competition law breaches. However, there has been no legislative action as a result so far.

There is currently a claim, which has been brought in the High Court in London on behalf of two freight companies against BA in relation to alleged price fixing conduct for air cargo services, even though the European Commission's investigation is yet to conclude. The claimants are seeking a declaration from the High Court's Chancery Division that BA participated in a freight cartel as a result of which they caused loss. However, the claimants have also said that its case will be stayed pending the decision from the European Commission.

9 Miscellaneous

9.1 Provide brief details of significant recent or imminent statutory or other developments in the field of cartels and leniency.

As noted above, the OFT is currently finalising its Guidance Note on Leniency Applications and the OFT's revised guidance is expected to be published late in 2008.

9.2 Please mention any other issues of particular interest in the United Kingdom not covered by the above.

None.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.