Quick guides
Complaining about anti-competitive practices
We have published a guide to complaining about anti-competitive practices:
Unfair competition?
This page complements the guide by answering the following questions:
- Which anti-competitive practices are covered in the guide?
- Does the guide cover all areas of competition law?
- What about other kinds of unfair competition?
- Will I have to go to court?
- Will I be able to stop the anti-competitive conduct?
- Will I get damages?
- Can I redistribute the guide?
Please contact us if you have a question which is not answered below.
For an initial discussion of a potential case, please contact Franck Latrémolière (020 7841 5858) or Nicholas Francis (020 7841 5859), or e-mail f.latremoliere@reckon.co.uk.
Which anti-competitive practices are covered in the guide?
The focus is on discriminatory and exclusionary abuses of a dominant position, and on unjustified State aid or regulatory restrictions of competition.
Does the guide cover all areas of competition law?
No.
First, the guide covers only possible infringements that amount to unfair competition.
This excludes infringements that are directly detrimental to consumers (rather than competitors), such as cartels or exploitative abuse.
Second, the guide does not address in any depth the forms of unfair competition that can arise from exclusive or selective distribution arrangements, e.g. beer ties.
This is because establishing the necessary evidence in these types of cases can be particularly complex and resource intensive. We are happy to help but we do not think that it can be delivered successfully within the time and budget envisaged in our guide to complaining about anti-competitive practices.
Finally, please remember that the guide is at a high level, does not go into details, and cannot cover all circumstances. Please contact us if you need more detailed information or advice.
What about other kinds of unfair competition?
Anti-competitive infringements of competition law (also known as antitrust law) are one form of unfair competition, but there are others.
This page and our guide to complaining about anti-competitive practices are about the competition law aspects only. More general information on unfair competition can now be found on our unfair competition quick guide.
Will I have to go to court?
A House of Lords research paper (70 pages, PDF) on the Bill that led to the Competition Act 1998 noted that “the range of powers available to address anti-competitive behaviour which breaches the Bill's two prohibitions is formidable”. And indeed they are: the regulators have powers to impose substantial fines and to compel the provision of information. Private court action was not highlighted as a significant enforcement mechanism at the time of the bill.
Yet the regulators' considerable powers can only help you if the regulators decide to use these powers. And whilst the law protects you against mistakes by regulators by providing a right of appeal to the Competition Appeal Tribunal, it provides no appeal against a decision not to investigate, other than an application for judicial review on notoriously difficult to establish grounds such as irrationality.
The main UK regulator, the Office of Fair Trading (OFT), has a deliberate policy not to investigate most cases of infringement of competition law that amount to unfair competition, and to focus instead on cases such as cartels.
Even when they do investigate, the timescales of the regulatory process can be horrendous, both in the UK and at the European Commission. And regulators fairly often get things wrong, requiring legal action at the Competition Appeal Tribunal to correct their decisions.
If the regulator responsible for your industry is willing to investigate the issue, or if the case is of sufficient importance for cross-border trade to convince the European Commission to devote resources to the case, and if the investigation proceeds in a timely manner, and if the regulator does not make serious mistakes in its analysis, then you might not need to go to court.
It is also possible that a well-reasoned complaint from you, explaining the relevance of competition law, will lead the person engaging in anti-competitive conduct to mend their way. But infringers will know that the regulators are often toothless in practice in unfair competition cases.
Given all this, you should rarely rely on the regulators set up by the Government to help you. In most cases, you need to plan for the worst case scenario and assume that you will have to make your case in court.
Cases involving competition law claims in England and Wales are normally heard in the Chancery Division of the High Court in central London. See the relevant practice direction for England and Wales. There is also a rule of court for EC competition claims in Scotland.
We provide a cost-effective consultancy service to help you decide whether you have a case, and if so how to present it, and what evidence or analysis is necessary to support it. We can support complaints or litigation by providing an economics analysis of possible claims, or by collecting and analysing economics evidence. You will probably need a solicitor to conduct any litigation that is necessary; but by drawing on our advice on technical aspects of competition law you can keep the costs of doing so to a minimum.
Will I be able to stop the anti-competitive conduct?
You can apply to the court for an injunction or interdict. Urgent claims can be heard by the court very quickly.
In addition to court fees and the cost of case preparation and legal representation, you will normally need to provide an undertaking in damages, i.e. to promise to compensate the other side for the cost of complying with interim measures if the court finally decides that there was no infringement.
If they can be interested in the case (and if there is not an acute urgency), the regulators also have powers to issue interim directions when they have grounds to suspect an infringement of competition law. There is no fee for making such applications, and no undertakings in damages are required; but there is no guarantee that your case will receive proper and timely consideration by the regulator.
Will I get damages?
Infringements of UK or EC competition law are breaches of statutory duty entitling you to compensation for any losses suffered.
If you are lucky enough to have obtained an infringement decision from a regulator, that decision (subject to any appeal against it) is binding on the judge determining damages, and any claim for damages will normally be heard by the specialist Competition Appeal Tribunal rather than by a generalist court.
If not, you can claim damages directly as part of a court claim for breach of competition law.
Most claims for damages for proven breaches of competition law have been settled out of court on confidential terms, and it is difficult to know how generous a court will be in assessing the complex issues of causation and quantum that can arise.
We can help with all aspects of the economic analysis (including econometric studies) required to prove damages.
Can I redistribute the guide?
We welcome the use and distribution of our guide by organisations and professionals providing business advice to small and medium enterprises and requiring practical information on competition issues. We have an online form to request hard copies.
About this page
The information on this page has been compiled by Reckon staff on the basis of published sources. We researched this information to develop our business.
This page is for general information only. There may be errors or omissions in the information that was obtained, and the situation may have changed since the information was collected. It is not a substitute for professional or legal advice tailored to your circumstances.
Reckon LLP is an economics consultancy with expertise in data analysis, economic regulation and competition law. Contact us if you require specific information or advice on competition law issues. We are not authorised to provide financial advice or to conduct litigation.
This page was last reviewed in June 2007 by Franck Latrémolière.