2013 promises to be another active year, both for the UK competition regulators and the European Commission.
In this briefing, we point to just some areas that will be in the competition spotlight:
- CMA: 2012 generated many headlines on the creation of the UK's "super" competition regulator – the successor to the OFT and Competition Commission. However, 2013 will be the year when the detail of some of the tougher issues (changes to the UK's merger control regime and a potential re-definition of the criminal cartel offence) will be finalised, as the Enterprise and Regulatory Reform Bill finishes its Parliamentary process. Dangers, too, of regulatory "drift" in the run-up to the new regime?
- The year of the study or market investigation? The OFT will have a number of market studies and "calls for information" to conclude in 2013. Having announced a raft of reviews during the latter half of 2012, the OFT will decide whether, for example workplace pensions or private healthcare, warrant full-blown Competition Commission market investigations. Personal current accounts have already been given a stay of execution – a sign of drift? Fuel has been given the all-clear.
- Damages actions: much recent fanfare on follow-on damages claims in the UK, with several successful actions in the Competition Appeal Tribunal and the European Commission's White Paper on anti-trust actions for damages. On the European stage, 2013 should see a legislative push for minimum levels of disclosure of evidence and mechanisms for collective redress. Domestically, the UK Government has recently announced legislative changes to allow more follow-on damages actions (including class-actions) and the UK should continue to see an increase in damages actions for competition law violations. A number of actions launched in the High Court in 2012 may be concluded in 2013, most notably the growing number of retailer suits against Mastercard.
- Information exchange: given a number of high profile European Commission investigations in the banking sector, most notably LIBOR, 2013 may see the continued testing of the boundaries of communications between competitors. When are these instances truly violations of Community competition law, rather than isolated inappropriate misjudgments? Domestically, the recent Tesco Competition Appeal Tribunal judgment may cast a long shadow over the OFT's willingness to bring indirect information exchange cases – particularly if the CAT concludes that there was insufficient evidence to support further OFT findings in the cartel.
- Dominant technology? 2013 is likely to be another busy year for abuse of dominant position cases in the technology sector. Given Google's recent US settlement, 2013 should see a resolution to the European Commission investigation. It will be interesting to see how Samsung's patent investigation progresses, but with the case only reaching Statement of Objections stage right at the end of 2012, there may not be much progress made public in 2013. A decision from the Commission may also follow on Microsoft's alleged failure to comply with its settlement agreement on choice of web browsers for Windows.
- 2013, another year for large fines? 2012 saw a number of significant fines levied on parties for competition law violations. The recent fining record of the European Commission should increase this year, with a number of multi-jurisdictional cases potentially reaching their conclusion. In particular, LIBOR (mentioned above), has already seen very significant fines in the context of financial regulatory settlements, but may also see large competition fines.
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