Let's talk antitrust - Antitrust trends – what to expect in 2018

Peter Scott: Richard, thanks again for coming to speak to us about the trends in competition law that we can see emerging over the course of 2018.  I would like to cover merger control enforcement and private litigation, starting with merger control.  What trends do you see on that front having regard in particular I suppose to policy developments looking at public interest tests and perhaps a general scepticism to allowing mergers at a fairly general level?

Richard Whish: Let’s deal with, if you like, conventionalmerger control first and then we can come on to public interest.  I have the sense around competition authorities generally in the world today that perhaps there is more scepticism towards the merger process query. Are industries becoming too concentrated? Is this leading to a lack of effective competition?  It’s a sense I have that there are more interventions, that more remedies are being required.  I certainly find it interesting at European Commission level that it’s not unusual to see interventions on the basis of 3-to-2 or even 4-to-3 and not on the basis of coordinated effects, as it were non-collusive oligopoly.  So it seems to me that there is a greater scepticism around and of course at the same time we also have these interventions where there have been procedural infringements, failure to notify, and now a couple of investigations of early implementation, misleading information.  So, I feel that there is a tightening up. On public interest, clearly this is a major issue at the moment, the European Commission has tabled legislation on foreign inward investment. The UK Government has got proposals to increase the extent of public interest scrutiny.  It’s a bit early to tell precisely what that legislation is going to be like in the end, but clearly, there is a trend here and one can expect to see more intervention in the future than in the past.

Peter Scott: Moving on and looking at enforcement trends for 2018. If you look back over recent years you might say particularly perhaps that European Commission level have been active across a whole range of sectors. But the three that might stand out might be pharmaceuticals, the financial sector and also technology companies, particularly large US companies, that have been under the spotlight for dominance cases. Do you think the focus will remain on those three sectors? And, in particular, thinking about the role of competition law as against other laws and policy responses to deal with the issues that they raise? 

Richard Whish: Well it’s very interesting isn’t it? I mean certainly if we look at technology and the world of platforms, for example, Google, Facebook and Amazon, and so on, I think again there is greater scepticism even than relatively recently and I foresee increased scrutiny. I think it’s a very interesting question. When is competition law the right tool to use and when should one be using other instruments, including possibly even legislation, there is also unfair contract terms legislation, data protection legislation?  I foresee greater scrutiny. I think that there is a growing anxiety that the power of the platforms really is now so considerable that there has to be some kind of regulatory, not necessarily response, but certainly regulatory investigation and supervision, and I think that may be true in the United States as well to be perfectly honest. I keep hearing that States Attorney General are more inclined to become involved even if there is not a lot of involvement at Federal level. 

Peter Scott: And looking at private enforcements, starting perhaps in the UK where we have both the High Court and the Competition Appeal Tribunal, that are almost vying for competition cases, picking out in the CAT the fact that we have now had two class actions brought but neither certified, how do you see the balance of claims between the two forums? And on the question of the CAT, do you think that they are signalling that the test for certification is going to be set so high that we may not see any class actions?

Richard Whish: No, I don’t think that. I mean there have been two attempts to initiate and opt-out action, one in relation to mobility scooters, let it be said in relation to vertical agreements I think one has to remember that was not some horizontal cartel across an entire sector and the other in relation to the multilateral interchange fees. I think that in each case the CAT noted, what shall I say, imperfections in which the applications had been formed and so in the end those cases, I won’t say failed of course because there will be an appeal in the Merricks against MasterCard case, but I think it’s a question of learning by doing, and that would-be claimants in the future will have to learn from the lessons of those two cases so far. But I am sure there will be claims in the future, it is a matter of waiting for the right case to come along. I think what’s interesting in the CAT, is that if one is a complainant, in particular, in an abuse of dominance case, the interesting question for the future is should I take my complaint to one of the competition authorities? That is to say the CMA or a concurrent regulator, where I have to get over the prioritisation criteria hurdle, or do I go direct to the CAT, where in certain circumstances I can take advantage of a fast track procedure? I might be able to get an order capping the recoverable costs of the defendant in the event that I lose.  It seems to me that for a certain category of complainants the CAT is a very inviting forum to which to take that complaint.

Peter Scott: And as regards how the UK compares against other member state forums, particularly of course with Brexit on the horizon, do you think that even in advance of Brexit we might begin to see claimants that had a choice of jurisdiction preferring to bring their claim perhaps in the Netherlands or Germany rather than in the UK?

Richard Whish: I am a great believer in competition and I think it’s a healthy thing to have competition between legal systems and there are good reasons why people like to litigate here. The court system is formidably good and the legal community here is excellent but of course there are merits in other jurisdictions, notably the Netherlands and Germany, and other countries will want to have some part of this action in the future. I’m sure that people will still litigate here.But my expectation is that over time, the way I would put it is this, I think that the UK’s market share in competition litigation will decline not dramatically I am not talking about a cliff-edge but I think there will be a decline over time. 

Peter Scott: Final question, perhaps looking at bit further afield Richard, I know you spent quite a bit of time recently in South America, particularly in Brazil and Argentina, what are the trends that you see coming out of those countries?

Richard Whish: Well I think Latin Amercias are very interesting in competition law terms at the moment. I am very impressed by the human resources engaged in competition law there both on the public and the private side. I think the Brazilian authority is very much up to speed with what is going on and I was in Argentina last week when the competition bill passed through Congress. It now has to go through the Senate and that, if passed, will lead to huge improvements in Argentinian competition law, the constitution of an independent competition authority, introduction of a leniency regime, and so on and I think that’s a very exciting proposition. So, I think that in the future we will all become more aware of competition law enforcement in Latin America.