Competition Commission guidance (38 pages, PDF) on remedies and interim measures in merger control.

DG Competition consultation (25 pages, PDF) on a proposed revision of its 2001 guidelines on State aid to public service broadcasting. Responses by Thursday 15 January 2009.

Draft guidance (26 pages, PDF) from the European Commission on the enforcement of EC State aid law by the courts.

OFT paper (21 pages, PDF) on responses to its consultation on merger procedures and guidance.

UK Government proposals (10 pages, PDF) to give the Lord Chancellor power to prescribe an interest rate to be applied to debt and damages between the time at which they accrue and the time of judgment. The rate would be set by reference to the Bank of England base rate, and the Government thinks that “there is a case” to index the prescribed post-judgment interest rate in the same way.

The Government rejects the recommendation in the Law Commission's 2004 report (130 pages, PDF) to empower judges to award compound interest in all cases. The Government would need “further consultation and a more detailed and quantified impact assessment” before accepting this recommendation, and “the issue does not command sufficient priority to justify the necessary work on impact assessment and IT development”. The IT development in question would be to create a “web-based programme to make the necessary calculations”.

The same result on compound interest seems to have been reached by a different route in Scotland: see the Scottish Law Commission's 2006 report (124 pages, PDF) recommending simple interest (paragraph 7.39), and Scottish Government's January 2008 consultation (54 pages, PDF).

DG Competition guide (42 pages, PDF) to the EC State aid rules, including block exemptions and guidelines. This "vademecum" was updated in July 2008.

OFT/DfT consultation (71 pages, PDF) on draft guidance on the competition tests that must be met by local authorities before they make or vary bus quality partnerships, ticketing schemes or subsidies, and by bus operators when entering into certain co-operation agreements. Responses by Friday 17 October 2008.

Guidance (16 pages, PDF) to UK Government bodies on how to run consultation exercises.

Government code of practice (12 pages, PDF) for guidance documents on regulation. There is also a Government guide (28 pages, PDF) to the code of practice.

European Commission consultation on proposed revised impact assessment guidance documents (55 pages, PDF and 66 pages, PDF) . Responses by Friday 25 July 2008.

Competition Commission information page on a joint review with the OFT of the UK merger guidance documents. Submission are said to be welcome at any time.

Revised Ofgem guidance (41 pages, PDF) on its approach to impact assessments. This replaces the 2005 guidance, following the 2007 consultation.

OFT consultation (150 pages, PDF) on a proposed revision of its guidance on jurisdiction and procedure for the first stage of UK merger clearance. Responses by Friday 20 June 2008.

The document would replace the OFT's procedural guidance (76 pages, PDF), substantive guidance (72 pages, PDF) and IBA Health case update (2 pages, PDF).

Competition Commission invitation (about 2 pages) to submit comments ahead of a revision of its merger guidelines. The guidelines on the determination of whether there is a substantial lessening of competition and on the specification of merger remedies where necessary will be put in separate documents.

DG Competition guidance (57 pages, PDF) on criteria for approval of State aid for environmental protection purposes. See also the Q&A.

Revision (12 pages, PDF) to OFT guidance on its assessment of mergers, extending the interpretation given to the statutory phrase "markets of insufficient importance". This sets a threshold of £10 million annual turnover below which mergers are considered likely to be exempt from the duty to make a reference to the Competition Commission, even if they may substantially lessen competition.

Government guidance (53 pages, PDF) to UK public authorities on the EC State aid rules.

Ofgem guidelines (47 pages, PDF) on complaints and enforcement activities, including competition law enforcement. This follows from the June 2007 consultation.

OFT consultation (23 pages, PDF) on a new set of prioritisation principles replacing its October 2006 policy statement. The eight new principles are said to be “broader in scope” but “entirely consistent” with the previous ones.

Responses by Tuesday 22 January 2008.

OFT guidelines (36 pages, PDF) on competition assessments in impact assessments. This appears to confirm most of the changes mooted in November 2006 and February 2007.

DG Competition notice (75 pages, PDF) on its jurisdiction in merger cases. This consolidated document replaces several previous notices on different aspects.

Revised BBC fair trading guidelines (61 pages, PDF). These guidelines set out BBC management procedures for compliance with the BBC Trust's fair trading and competitive impact policies.

Update: The fair trading procedures originally published with these guidelines have been replaced by these procedures (6 pages, PDF) in April 2008.

High Court judgment (about 40 pages) finding that a Government consultation on nuclear power did not fulfil “legitimate expectations to fullest public consultation”.

The judgment outlines a distinction between different types of consultation, and finds that the Government's documents, whilst an adequate "issues paper", was not a proper consultation on a proposed decision:

116. For the reasons set out above, the consultation exercise was very seriously flawed. ... The purpose of the 2006 Consultation Document as part of the process of "the fullest public consultation" was unclear. It gave every appearance of being an issues paper, which was to be followed by a consultation paper containing proposals on which the public would be able to make informed comment. As an issues paper it was perfectly adequate. As the consultation paper on an issue of such importance and complexity it was manifestly inadequate. It contained no proposals as such, and even if it had, the information given to consultees was wholly insufficient to enable them to make "an intelligent response". The 2006 Consultation Document contained no information of any substance on the two issues which had been identified in the 2003 White Paper as being of critical importance: the economics of new nuclear build and the disposal of nuclear waste. When dealing with the issue of waste, the information given in the 2006 Consultation Document was not merely wholly inadequate, it was also seriously misleading as to CoRWM's position on new nuclear waste.

117. On both the economics and the waste issues all, or virtually all, the information of any substance (the cost-benefit analysis and supporting reports, and CoRWM's draft and then final recommendations) emerged only after the consultation period had concluded. Elementary fairness required that consultees, who had been given so little information hitherto, should be given a proper opportunity to respond to the substantial amount of new material before any "in principle" decision as to the role of new nuclear build was taken. There could be no proper consultation, let alone "the fullest public consultation" as promised in the 2003 White Paper, if the substance of these two issues was not consulted upon before a decision was made. There was therefore procedural unfairness, and a breach of the claimant's legitimate expectation that there would be "the fullest public consultation" before a decision was taken to support new nuclear build.

OFT/HM Treasury guidance (32 pages, PDF) on how to assess the competition effects of public subsidies. This is described as a supplement to HM Treasury's Green Book.

The Government endorsed this analysis in May 2006. This competition assessment is to be used for all subsidies irrespective of whether EU State aid rules apply.

The document also states that:

Aid providers should find that it becomes easier to persuade the Commission to approve aid, if the aid requires notification to Brussels, if a competition assessment has been done in line with this guidance.

Timeline: The relevant page on the OFT website does not properly disclose the steps that have preceded this document. They were:

• In January 2006, the OFT published a consultancy report containing proposals for a competition analysis of subsidies.
• In May 2006, the Government (through DTI) endorsed this approach.
• In January 2007, the above report was published. By then HM Treasury had apparently become the relevant Government department instead of the DTI or Department for Business (where the State aid branch is still located).

OFT guideline (56 pages, PDF) on the block exemption for public transport ticketing schemes under the Competition Act 1998.

This replaces the 2002 guidance on the previous version of the block exemption.

Draft OFT guidance (31 pages, PDF) to Government departments on the competition impact assessment of policy decisions or regulatory changes.

Comment. This draft is a major improvement on the 2002 version: half the length, better focused on the potential unnecessary restrictions on competition that can result from Government action, and much less likely to mislead civil servants into believing that their proposals are fine just because the number of boxes ticked on a form is low. Franck

DG Competition rules (26 pages, PDF) for the supervision under Article 87(3)(b) and Article 87(3)(c) of State aid programmes pursuing research, development or innovation objectives. A Q&A document explains the rationale for the main points of the policy.

OFT statement (2 pages, PDF) on its approach to prioritising its competition law enforcement action. The document provides a series of steps and an illustrative and non-exhaustive list of criteria to be considered by the OFT.

A preliminary test is whether the OFT is best placed to enforce the law. This seems to include a question as to whether private enforcement would be as or more effective, without reference to the costs (whether financial or in terms of management time) that such action would impose on private enforcers. It also appears to imply that the OFT will not act if its action would not reduce the harm caused by illegal conduct, e.g. for a past abuse which can no longer be remedied.

Subject to that preliminary test, the OFT will be guided by considerations of the reduction in consumer harm that could result from its action, the deterrent effects of enforcement, the apparent degree of culpability of the accused, the precedent value of enforcement action, and public relations effects — considered in the light of the use of OFT resources and the likelihood of success for any enforcement action.

Warning: The lawfulness of this guidance is disputed.

Ofwat guidance (105 pages, PDF) to water undertakers on the access codes to be prepared under the water supply licensing and competition arrangements of the Water Act 2003. This version replaces version 2 and incorporates some modifications on access pricing.

Ofcom consultation (74 pages, PDF) on the process for handling competition complaints, disputes over regulated matters, and the enforcement of regulatory rules. The document includes a list of information to be included in complaints about anti-competitive behaviour. Responses by Thursday 14 September 2006.

DTI response (4 pages, PDF) to the OFT's January 2006 report on public subsidies. The paper endorses the idea of a UK competition assessment for all public subsidies (irrespective of whether EU State aid rules apply).

Ofwat guide (6 pages, PDF) outlining the process for handling complaints under the Competition Act 1998, Article 81 and Article 82.

OFT guidelines (36 pages, PDF) on the involvement of third parties in investigations under the Competition Act 1998, Article 81 and Article 82.

The OFT intends for certain third parties to be granted the status of a Formal Complainant. This would provide a third party with access to information about the case and opportunities to comment on case documents such as draft non-infringement decisions and Statements of Objections. The guidelines specify a wide array of information that the OFT requires to be included in a complaint in order for a third party to be treated as a Formal Complainant. This includes information about company details, market shares and effects on customers and consumers; but complainants with a legitimate complaint will not necessarily be in a position to provide the specified information. The guidelines do not state OFT's policy towards instances where such information cannot be provided.

Because of the generic nature of the guidelines, the information requested is likely to fall short of what is necessary to provide an effective direction to the OFT's investigation team. Reckon offers a complaint preparation service to help complainants that wish to go beyond the formal requirements set by the OFT and express their grievances in a form that can provide a clear scope for the investigation.

ORR conclusions (25 pages, PDF) largely confirming the approach to "reviewing markets" proposed in the August 2005 consultation. The document summarises ORR's duties for monitoring and reviewing competition in UK rail markets, under the Railways Act 1993, the Enterprise Act 2002, and the EU "first rail package" directives. It is is to be read in conjunction with the OFT guidelines on market studies and market investigation references, and the ORR/OFT's competition law enforcement guidelines.

CAA policy document (22 pages, PDF) on the application of competition law to air traffic services. The CAA has competition law enforcement powers under the Competition Act 1998 in respect of air traffic services but not in respect of airport services or airlines.

The document restates advice received by the CAA and reported in a 2004 consultation (15 pages, PDF) that, for the purposes of competition law, the provision of en route and aerodrome air traffic services by NATS may not be an economic activity pursued by an undertaking, because it is "connected by its nature, aims and the rules to which it is subject with the exercise of powers which are typically or necessarily those of a public authority". But in the light of consultation responses the CAA does not endorse this advice and does not "come to a definitive view on this question which can only be determined by the courts".

OFT guidance (48 pages, PDF) on its process for deciding whether to make market investigation references to the Competition Commission under the Enterprise Act 2002.

Treasury Solicitor manual (48 pages, PDF) on administrative law and judicial review for UK Government authorities.

OFT guidance (27 pages, PDF) on market definition in the enforcement of Article 81, Article 82 and the Competition Act 1998.

Competition Appeal Tribunal guide to proceedings (73 pages, PDF). This provides additional details and practical explanations of the Tribunal's rules of procedure (39 pages, PDF) (see also 2004 amendment, 6 pages, PDF).

Government code of practice (12 pages, PDF) for the conduct of consultation processes.

Comment, July 2008

The document does not go into depth. For example, it enjoins authorities to “be clear about what your proposals are, who may be affected, what questions are being asked”, but does not comment on the level of detail about the proposals that is needed before a fair consultation can be conducted. Indeed, the requirement at paragraph 2.3 that “as far as possible, consultation should be completely open, with no options ruled out” seems to encourage unspecific proposals and the raising of broad issues and questions.

My overall impression is that this document is too vague. And it has not been updated since 2005. Departments facing difficult or contentious issues in the organisation of consultations probably find themselves having to refer to the case law (including the 2007 Greenpeace case) rather than this code of practice. Franck

ORR/OFT guidelines (60 pages, PDF) on the application of the Competition Act 1998, Article 81 and Article 82 to services relating to railways. These appear to be a re-issue in OFT format of the document published by ORR in late August 2005.

Practice direction under the Civil Procedure Rules for cases in the English courts involving matters of UK or EC competition law. Cases are to be heard in the Chancery Division or the Commercial Court in London. The OFT must be notified when a competition law point is raised, and the judge is responsible for sending transcript of all judgments on EC competition law matters to the European Commission.

This procedure was modified by the 29 September 2005 CPR update to allow the use of the Commercial Court.

A similar set of rules applies in Scotland for EC competition law claims.

DG Competition guide (7 pages, PDF) on competition screening in policy impact assessment. Rather than prescribing thresholds for further investigation or market definition techniques, like the OFT's 2002 guidance, the document seeks "to provide some suggestions on how competition impacts could be identified and addressed when drafting legislation". This takes the form of a series of illustrative examples to help policymakers identify restrictions on competition associated with their proposals and possible ways of reducing them, so that restrictions can be limited to what is necessary for the achievement of the relevant policy objectives.

European Commission guidelines (48 pages, PDF) on the preparation of impact assessments for policy proposals.

These guidelines define, in effect, a logic model with two main layers:

• the "problem" to be solved is a way of describing the relevant policy objective or desired outcome; and
• the "objectives" are operational activities and targets that contribute towards that outcome.

They suggest that impacts can best be identified through a causal model.

The guidelines emphasise proportionality and subsidiarity as criteria to choose between options. The criteria of effectiveness (achieving the objectives), efficiency (minimising costs) and consistency (minimising distributional effects and economic/social/environmental trade-offs) are to be used to screen the options to be subjected to assessment.

The annexes (51 pages, PDF) are not fully targeted on the impact assessment concepts defined in the guidance. For example:

• Annex 2 appears to be asking officials to identify political objectives under the guise of "problems calling for a solution", which is only defined by reference to a non-existent perfect world: for example imperfect information is described as a potential problem, despite the fact that there is no such thing, even in theory, as a working world with perfect information, and despite the warning in the guidance that "problems should not be defined as a lack of something". The separation between civil service and political responsibilities may be unnecessary muddled as a result.
• Annex 9 does not provide an useful analysis of competition issues, although the DG Competition guidance published subsequently may largely fill the gap.
• Annexes 12 and 13 appear to encourage officials to use cost-benefit analysis and variants in order to choose between options, and ignores the proportionality and subsidiarity principles highlighted in the guidance.

A single file (99 pages, PDF) containing the guidance and annexes is also available, as are (now) German and French (116 pages, PDF) versions. Further links can be found on the European Commission's impact assessment website. DG Competition's competition screening guidance was published a few weeks after the guidelines.

The Better Regulation Executive is the latest (May 2005) name of the Cabinet Office's Regulatory Impact Unit. The Better Regulation Executive is intended to "sit alongside" a new Better Regulation Commission which has replaced the Better Regulation Task Force.

The Better Regulation Executive's website includes guidance on RIAs and a list of RIAs prepared by Government departments.

OFT leaflet (20 pages, PDF) on the leniency arrangements for parties to illegal agreements and concerted practices which report these infringements to the OFT.

Report (147 pages, PDF) by Philip Hampton for HM Treasury suggesting consolidation of enforcement and inspection bodies, and the systematic use of risk assessment techniques by these regulators.

Ofgem/OFT guidance (34 pages, PDF) on the application of Article 81, Article 82 and the Competition Act 1998 to the electricity and gas sectors in Great Britain.

OFT statutory guidance (21 pages, PDF) on the way it sets penalties for negligent or intentional infringements of Article 81, Article 82 or the Competition Act 1998.

OFT guidance (31 pages, PDF) on the application of Article 81 and the Competition Act 1998 to vertical agreements. The application of Article 82 and Section 18 of the Competition Act 1998 to unilateral vertical restraints is described as "similar".

OFT guidance (39 pages, PDF) on the concurrent application of Article 81, Article 82 and the Competition Act 1998 by CAA, Ofcom, Ofgem, Ofreg, Ofwat and ORR alongside OFT in certain sectors.

OFT guidance (25 pages, PDF) on the Article 82 and Competition Act 1998 prohibitions on abuse of a dominant position.

Competition Commission guidelines (24 pages, PDF) on its approach to inquiries into mergers of regional water companies. See Water mergers for a commentary some of the issues raised by the consultation that led to these guidelines.

OFT guidance (40 pages, PDF) on the operation of Council Regulation 1/2003 and associated UK provisions for the enforcement of Article 81 and Article 82.

OFT guidance (20 pages, PDF) on the application of Article 86(2) and equivalent provisions of the Competition Act 1998 relating to public services and revenue-producing monopolies. See this article for a critique of aspects of this guidance.

OFT guidance (20 pages, PDF) on the application of the Competition Act 1998 and The Competition Act 1998 (Land Agreements Exclusion and Revocation) Order 2004 to land agreements.

OFT guidance (32 pages, PDF) on the assessment of market power to determine whether there is:

• an appreciable effect of a restrictive agreement under Article 81 (or Chapter I of the Competition Act 1998), or
• a dominant position under Article 82 (or Chapter II of the Competition Act 1998).

OFT guidance (28 pages, PDF) on the application of Article 81 and the Competition Act 1998 to the activities of trade and professional associations and self-regulating bodies.

OFT guidance (40 pages, PDF) on its approach to enforcing Article 81, Article 82 and the Competition Act 1998, including the use of directions, interim measures and commitments.

OFT guidance (40 pages, PDF) on its investigatory powers in enforcing Article 81, Article 82 and the Competition Act 1998.

OFT guidance (40 pages, PDF) on the Article 81 and Competition Act 1998 prohibitions on anti-competitive agreements and concerted practices.

OFT guidance (24 pages, PDF) on the conduct of market studies under the Enterprise Act 2002.

OFT paper (9 pages, PDF) published after the CFI's judgment in Fenin and explaining that the OFT may not investigate some purchasing activities of public bodies under the Competition Act 1998 at least until the law on when they are acting as undertakings has been clarified.

OFT draft guidance (40 pages, PDF) on the application of Article 81, Article 82 and the Competition Act 1998 to cases involving alleged excessive prices, price discrimination, predation, discounts, margin squeeze, vertical restraints and refusal to supply. Finalisation of this guideline has been postponed until completion of the DG Competition review of some aspects of its approach to Article 82 enforcement.

Competition Commission guidance (52 pages, PDF) on its conduct of market investigations under the Enterprise Act 2002.

Competition Commission guidance (56 pages, PDF) on its conduct of merger inquiries under the Enterprise Act 2002.

OFT guidance (72 pages, PDF) on the substantive Phase 1 assessment of mergers.

OFT guidelines (64 pages, PDF) on the competition filter that is to be conducted for all Government regulatory impact assessments, and the competition assessment to be undertaken when the filter is passed. The filter comprises nine questions: three about market shares, three about any non-uniform burdens arising from the regulatory proposal, one about restrictions on commercial freedom, one about rapid technological change and one about the likely effect of the proposal on market structure. According to the OFT, "if the number of yes answers is low ... policy officials and Ministers can be assured that the likely effects on competition are not seriously adverse".

DG Competition guidelines (7 pages, PDF) on the application of the EC State aid rules to public service broadcasting.

Ofreg/OFT guidance (36 pages, PDF) on the application of the Competition Act 1998 to the electricity and gas industries in Northern Ireland.

OFTEL/OFT guidance (39 pages, PDF) on the application of the Competition Act 1998 to the telecommunications sector.

Ofwat/OFT guidance (42 pages, pages) on the application of the Competition Act 1998 to the water industry in England and Wales.

Court of Appeal judgment in a dispute relating to the adequacy of a consultation process. The court (led by Lord Woolf MR) said:

108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken. ...

112 ... It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.