Global Competition Review – Enforcer Hub

Introduction

The past 12 months have seen some striking competition decisions come from the UK competition agencies and courts.

First, the Competition and Markets Authority (CMA) had a particularly high intervention rate against mergers. Second, the courts considered a number of significant abuse of dominance pricing cases. In particular, the Court of Appeal (CoA) released its judgment in the Pfizer/Flynn excessive pricing case, and the Competition Appeal Tribunal (CAT) delivered a striking judgment in Royal Mail. Third, in June 2020, the Supreme Court (SC) ruled in the Sainsbury’s and Asda et al appeals in the interchange fee cases. In addition, the SC considered MasterCard’s appeal of the CoA judgment in the Merricks case. A number of other applications for collective proceeding orders (CPOs) in the CAT await the judgment of the SC.

Mergers

The most striking aspect of the past 12 months in UK mergers is the growth of the CMA’s intervention rate. There has been no change in the merger guidelines suggesting a change in policy, but the change in outcomes is notable.

At Phase I, 13 mergers were referred for a Phase II investigation in financial year April 2019 to March 2020 and a further seven mergers were referred during the four-month period April to July 2020. This compares to only eight mergers per financial year on average during the preceding five-year period April 2014 to March 2019.

At Phase II, the intervention rate (the proportion of Phase II references that were either subsequently abandoned or were subject to prohibition or a remedy) increased to 77 per cent in financial year 2019–2020 compared to 55 per cent on average in the preceding five-year period April 2014 to March 2019. Although there have only been four Phase II decisions in the period April to July 2020, the intervention rate at Phase II remains high (100 per cent).

The CMA’s higher intervention rate has so far largely been supported by the CAT. Notable recent appeals to the CAT of the CMA’s merger decisions include Ecolab/Holchem wherein the CAT unanimously dismissed the appeal; and Tobii/Smartbox wherein the application was wide-ranging but did succeed on one ground related to the vertical theories of harm. Other appeals are still under consideration and two to watch, in particular during the second half of 2020, include JD Sports/Footasylum and Sabre/Farelogix.

Pricing abuse cases

The CoA rejects the CMA’s excessively rigid interpretation of United Brands in Pfizer/Flynn

On 10 March 2020, the CoA handed down its judgment in the Pfizer/Flynn excessive pricing case. This follows the CMA’s decision in 2016 to impose fines of £84.2 million on Pfizer and £5.2 million on Flynn for abusing their dominant position in the UK market for an anti-epilepsy drug, under the UK Chapter II prohibition and Treaty on the Functioning of the European Union (TFEU) article 102. The parties lodged a successful appeal in the CAT against the CMA’s decision in February 2017.

The CoA judgment makes clear that the “excessive” and the “unfairness” limbs of the “seminal” United Brands test in excessive pricing cases are not two “strict” alternatives. The implication is that, in the future, economic experts will be instructed to introduce reliable evidence to the record under both limbs of the United Brands test.

The CoA judgment also considered whether competition authorities should adopt any particular type of benchmark. The CoA confirmed there does need to be a benchmark, but a suitable benchmark could be based on cost-plus, a pricing comparator or some other approach. The benchmark(s) relied upon must be capable of providing a “sufficient” indication that the prices charged are excessive and unfair.

Economists also welcomed the CoA’s rejection of the CAT’s characterisation of the ”economic value” component of the United Brands test as a “legal rather than an economic concept”. The CoA found that economic value is at base an economic concept and broadly refers to what a consumer is willing to pay for a product or service.

The remittal back to the CMA remains one to watch. In particular, the CoA accepted the CAT’s conclusion that ”some” economic value might be relevant beyond the CMA’s cost-plus benchmark but did not decide whether or how far the CMA should take economic value into account.

The CAT opines on the As Efficient Competitor (AEC) test in Royal Mail

On the 12 November 2019, the CAT handed down its judgment in Royal Mail. The case involved an appeal against Ofcom’s decision that Royal Mail, the formerly state-owned monopoly provider of mail services in the UK, had abused its dominant position on a national (UK) market for bulk mail delivery by announcing the introduction of differential prices for access to its final delivery service in January 2014.

Whistl UK Limited (Whistl), a subsidiary of PostNL, had planned to set up its own final delivery service so that it would become a competing end-to-end bulk mail service, albeit one that still necessarily relied on access to Royal Mail’s delivery service in significant areas of the country. Whistl had reached a position where it expected to sign a share purchase and sale agreement (SPA) with LDC, the private equity arm of Lloyds Banking Group. Specifically, LDC was expected to invest around £52 million in the venture in December 2013. However, by February 2014, LDC had triggered a material adverse effect clause in the SPA following the announcement of Royal Mail’s pricing changes. Whistl complained to Ofcom that the new differential prices made its end-to-end operations and future plans uneconomic. Ofcom decided in August 2018, that Royal Mail’s conduct infringed TFEU article 102.

Ofcom’s finding that Royal Mail was dominant was not contested. Instead, Royal Mail’s appeal in the CAT centred on:

• “the extent to which competition law prevent[s] a dominant undertaking from charging prices that might exclude competitors less efficient than itself” (which affects the appropriate evidential weight to be placed on an as efficient competitor (AEC) test submitted by Royal Mail’s expert economist); and
• whether evidence from an AEC test “could over-ride actual evidence of exclusionary intent and activity”.

The CAT ruled against Royal Mail’s appeal against Ofcom’s decision on all grounds.

To understand the context of the CAT’s assessment of the AEC test submitted by Royal Mail’s expert economist, it is important to note that the CAT found that the documentary record suggested that Royal Mail’s “claim to welcome ‘efficient‘ competition looks at best disingenuous”. Indeed, the CAT found:

the evidence supports the view that Royal Mail planned and intended to take actions which it either knew would harm Whistl’s direct delivery plans or was reckless as to whether they would. Royal Mail knew about Whistl’s intentions in sufficient detail to plan against them and clearly had Whistl in mind when preparing its plans. Royal Mail appears to have thought that its particular position under the USO [Universal Service Obligation], and possibly its wider public responsibilities, would justify such actions and in some way protect it from the application of competition law.

The CAT also noted that Royal Mail did not commission an AEC test at the time it was developing its thinking on the changes to its access pricing arrangements.

The CAT found that ”whether as a matter of law or economics it is not necessary to conduct an AEC test in all pricing cases”. First, the CAT noted the relevant law has not changed since its decision in British Telecom, so that there is no requirement to establish anticompetitive foreclosure by means of an AEC test in all pricing cases.

The CAT also found that, as a matter of economics, ”there are no compelling reasons of economic principle that mandate such a test.” Specifically, the CAT was not persuaded by Royal Mail’s expert economist’s argument that entry by higher variable cost firms may reduce the industry’s productive efficiency and thereby risk consumer welfare (since prices may have to rise to cover higher industry costs). Rather the CAT considered that there is nothing inevitable about a price rise because entry may drive down the dominant firm’s prices (even if the entrant is inefficient), and concluded that more work would be required to sustain the argument that prices may rise convincingly.

Finally, the CAT considered whether there were benefits of the AEC test as a method that improves legal certainty, but found that there were no such benefits in practice since “the design and methodology of an AEC test are not fixed or universal” so that “a competition authority might deem the dominant undertaking’s test to be flawed in some way, run its own test and come to a different conclusion.”

The CAT then turned to consider whether there is a clear class of cases where an AEC test should be used and, if so, whether this case fell into that class, concluding that:

in the current state of economic thinking, there is no well-defined class of cases in which the use of an AEC test is the appropriate way of identifying anti-competitive behaviour. Consequently, trying to determine whether an AEC test should be performed by attaching a label to a practice, in an attempt to place it in a particular class of eligible cases, is not a sensible approach.

In addition, the CAT found there were features of Royal Mail’s proposed price differentials that made them particularly difficult to classify as a conditional pricing practice.

The CAT’s conclusions are remarkable in light of the emphasis placed on the AEC test in the European Commission prioritisation guidelines. The clear takeaway point from the judgment is that when there is an apparent tension between a “hypothetical” AEC test and the documentary record, the Royal Mail case makes clear that the CAT will prefer the documentary evidence unless there are compelling reasons not to.

UK multilateral interchange fee litigation reaches the Supreme Court

In June 2020, the SC delivered its judgment in various retailers’ appeals against the CoA’s judgment in three related multilateral interchange fee (MIF) cases originally considered respectively by [Justice Roth] in the CAT and LJ Popplewell and LJ Phillips in the High Court. As discussed below, the applicants raised four grounds of appeal and the SC unanimously upheld the CoA’s decision that the MIFs at issue in the case did infringe article 101(1) TFEU and also the main legal rulings on 101(3).

The Restriction of Competition issue

On the question of whether the CoA was wrong to find there was a restriction of competition in the acquiring market contrary to article 101(1), the SC dismissed the appeal.

In its dismissal, the SC considered whether it was bound by the Court of Justice’s MasterCard decision. It found that the CoA was correct to decide that the essential factual basis upon which the Court of Justice held that there was a restriction of competition in its MasterCard decision is mirrored in these appeals and so the CoA was correct to hold that the decision is binding. (In doing so, the SC rejected Visa and MasterCard’s arguments that the Court of Justice’s decision could be distinguished from the particular UK MIFs at issue in the three cases at issue in the appeals.) The SC also went on to consider whether, if it were not bound, it would have followed the Court of Justice in any event, and decided it would have.

The “standard of proof” issue

The SC also dismissed the appeal on the question of whether the CoA erred in so far as it concluded, in relation to article 101(3) TFEU, that Visa and MasterCard were required to satisfy a more onerous standard than that normally required under the civil standard of proof.

Visa and MasterCard argued that the CoA had incorrectly concluded that:

• “there is a specific requirement for robust and cogent evidence, which is a more onerous standard than that under the normal domestic civil standard of proof on the balance of probabilities”; and
• “there is a legal requirement that matters required to be considered have to be proved by facts and empirical data.”

The SC decided that the essential complaint made by Visa and MasterCard did not relate to the standard of proof, but rather related to the nature of the evidence required to meet the standard of proof in this context. More specifically, the SC decided it related to the type of evidence needed to establish that the benefits from the MIF rules under consideration outweighed the detriments to merchants and are indispensable for achieving those benefits.

In the SC’s view, article 101(3) TFEU does impose requirements as to the nature of the evidence that is capable of discharging the burden on an undertaking to establish an exemption under that provision (and section 60 of the Competition Act 1998 imports those requirements into domestic competition law). Specifically:

Article 101(3) is founded on the notion that notwithstanding the existence of a restriction on competition and its likely negative effect on competition and consumers, efficiencies and benefits arising from the conduct which gave rise to the restriction may, nevertheless, justify exemption from the prohibition in article 101(1). This is an inherently empirical proposition and necessarily requires the authority or court addressing the issue to carry out a balancing exercise – a “complex assessment” (GlaxoSmithKline, Court of First Instance, at paras 241, 304 and 307) – involving weighing the procompetitive effect against the anti-competitive effect of the conduct in question.

The SC continued:

[c]ogent empirical evidence is necessary in order to carry out the required evaluation of the claimed efficiencies and benefits. To the extent that objective efficiencies caused by a restriction cannot be established empirically, they cannot be balanced with the restrictive effects. As a result, although the standard of proof is a matter of domestic law, the nature of the evidence which will satisfy that standard must take account of the substantive requirements of article 101(3).

The “fair share” issue

Third, the SC dismissed the appeal on whether the CoA was wrong in finding that in order to show that consumers receive a fair share of the benefits generated by the MIFs, for the purpose of satisfying the test for exemption under article 101(3) TFEU, Visa was required to prove that the benefits provided to merchants alone as a result of the MIFs outweighed the costs arising from the MIFs without taking any account of the benefits received by the cardholders as a result of the MIFs. The SC decided the CoA’s decision was right, but for not precisely the same reasons.

The SC provided some positive guidance while recognising that it lacks the authority accorded by EU law to a judgment of the Court of Justice. The SC first considered the conditions required to meet the first condition of article 101(3), that the anti-competitive conduct “must contribute to improving the production or distribution of goods or to promoting technical or economic progress”. It considered that:

to meet the requirements of the first condition, in a situation where there is a two-sided market and the restrictive effects of the measure in question are experienced by consumers in only one of those markets, and where the consumers in both markets are not substantially the same, it has to be proved (1) that the measure causes appreciable objective advantages for consumers in the market where the restrictive effects are felt, and (2) that the objective advantages caused by the measure for consumers in both markets, taken together, compensate for the disadvantages which the measure entails for competition: see paras 240-242 of Mastercard CJ.

In contrast, many academic economist treatments of two-sided markets consider the overall effect of conduct on consumers in both markets when evaluating economic efficiency.

The SC also provided some positive guidance for the second condition under article 101(3). Specifically, the SC found that the best available guidance on the application of the fair share requirement in the context of a two-sided market is the opinion of Advocate General Mengozzi in MasterCard at point 156 of his opinion. The SC considers it:

can be summarised in the following propositions: (1) The ‘consumers’ referred to in the second condition are the direct or indirect consumers of the goods or services covered by the measure: here, the merchants [retailers]. (2) Those consumers must be compensated in full for the adverse effects that they bear owing to the restriction of competition resulting from the measure.

The SC noted that this reasoning is consistent with the Guidelines. And also noted that:

[t]he merchants are the consumers of the services which are subject to the restriction of competition, and are therefore the consumers which the second condition is presumably intended to protect. If the merchants are not fully compensated for the harm inflicted on them by the restrictive measure, it is difficult to see how they can be said to receive a ‘fair’ share of the resultant benefits. As the Advocate General indicated at point 158 of his Opinion, it is not the purpose of competition law to permit anti-competitive practices to harm consumers in one market for the sake of providing benefits to those in another.

The “broad axe” issue

The SC considered whether the CoA found, and if it did whether it was right to find, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages. The issue relates to the degree of precision required in the quantification and mitigation of loss where a defendant to a claim for damages arising out of an infringement of competition law asserts that the claimant has mitigated its loss through passing on all or part of an overcharge. In particular, the CoA rejected the defendant’s submission that the “broad axe” principle of establishing a recoverable loss applied to the defendant’s burden to establish the fact and amount of pass-on by a claimant.

The SC noted that, in the UK, pass-on is an element of quantification of damages and is required by the compensatory principle applicable to tortious claims. In particular, it is required to prevent double recovery to claims in respect of the same overcharge by a direct purchaser and by subsequent purchasers in a chain, to whom an overcharge has been passed on in whole or in part.

The SC found that the degree of precision required to prove the amount of loss passed on involves striking a balance between achieving justice by precisely compensating the claimant, and dealing with disputes at a proportionate cost. The SC did not interpret the CoA as having held that defendants had to prove the exact amount of the loss mitigated. But insofar as the CoA required a greater degree of precision in the quantification of pass-on from Visa and MasterCard than from the merchants, the SC found that the CoA erred and so the appeal succeeded.

Overall then, the appeal succeeded only in respect of the broad axe issue. This aspect of the decision will be noted by claimants in future damages cases and is likely to be heavily relied upon by defendants.

Conclusion

The past year has been important for the development of competition law in the UK, and in particular for the application of competition economics in competition law. The year has provided a difficult landscape for those seeking clearance of mergers at the CMA and for those who wish to inform compliance programmes for dominant companies using the AEC test (Royal Mail). However, there is useful additional clarity on the legal standards applicable in excessive pricing cases (Pfizer/Flynn) and interchange fee cases (Sainsbury’s et al).

Peter Davis is a senior vice president in Cornerstone Research’s London office. The views expressed in this report are solely those of the author, who is responsible for the content, and do not necessarily represent the views of Cornerstone Research.

Approved Judgment of the Court of Appeal (Civil Division), Competition and Markets Authority v Flynn Pharma Limited, Flynn Parma (Holdings) Limited, Pfizer Inc, Pfizer Limited and the Commission of the European Union, 10 March 2020, https://www.catribunal.org.uk/sites/default/files/2020-04/1275-76_Flynn_CoA_Judgment_100320.pdf, accessed 24 August 2020 (Pfizer/Flynn).

Judgment of the Competition Appeal Tribunal, Royal Mail PLC v Office of Communications and Whistl UK Limited, 12 November 2019, https://www.catribunal.org.uk/sites/default/files/2019-11/1299_RoyalMail_Judgment_Non_Confidential_Version_%5BCAT_27%5D_121119.pdf, accessed 24 August 2020 (Royal Mail).

Judgment of the Supreme Court, Sainsbury’s Supermarkets Ltd (Respondent) v Visa Europe Services LLC and others (Appellants) Sainsbury’s Supermarkets Ltd and others (Respondents) v Mastercard Incorporated and others (Appellants), 17 June 2020, https://www.supremecourt.uk/cases/docs/uksc-2018-0154-judgment.pdf, accessed 24 August 2020 (Sainsbury’s et al).

MasterCard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent), UKSC 2019/0118.

UK Trucks Claim Limited v Fiat Chrysler Automobiles NV and Others, Justin Gutmann v London & South Eastern Railway Limited, Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and others and MUFG Bank Ltd and another, and between Mr Phillip Evans v Barclays Bank PLC and others.

Author’s calculations from CMA data available from https://www.gov.uk/government/publications/phase-1-merger-enquiry-outcomes.

Competition Appeal Tribunal, Summary of Application Under Section 120 of the Enterprise Act 2002, 11 November 2019, https://www.catribunal.org.uk/sites/default/files/2019-11/1334_Ecolab_summary_of_application_111119.pdf, accessed 24 August 2020.

In particular, the CAT rejected the CMA’s assessment of the merged entity’s ability and incentive to foreclose its rivals by (i) increasing the wholesale price of certain software, and (ii) reducing the extent to which the software supported a rival’s hardware. Judgment of the Competition Appeal Tribunal, Tobii Ab (Publ) v Competition Markets Authority, 10 January 2020, https://www.catribunal.org.uk/judgments/133241219-tobii-ab-publ-v-competition-and-markets-authority-judgment-10-jan-2020, accessed 24 August 2020.

An appeal against the CMA’s decision to prohibit JD Sports’ acquisition of Footasylum. The grounds of appeal include an allegation that the CMA erred when (i) excluding the effect of covid-19 on the target, and (ii) finding that covid-19 would not materially affect the competitive constraint from the target. JD Sports Fashion plc v Competition and Markets Authority, https://www.catribunal.org.uk/cases/135441220-jd-sports-fashion-plc, accessed 24 August 2020.

The appeal relates both to jurisdiction and substantive grounds. This transaction was also opposed by the Department of Justice in the United States but, following an eight-day trial, the US District Court in Delaware found in favour of Sabre. Competition Appeal Tribunal, Summary of Application Under section 120 of the Enterprise Act 2002, 1 June 2020, https://www.catribunal.org.uk/sites/default/files/2020-06/1345_Sabre_summary_010620.pdf, accessed 24 August 2020.

Pfizer/Flynn.

Royal Mail ¶153.

Royal Mail, ¶¶112–115.

Royal Mail, ¶125.

Ofcom, “Complaint from Whistl UK Limited in relation to the prices, terms and conditions on which Royal Mail plc is offering to provide access to certain letter delivery services,” https://www.ofcom.org.uk/about-ofcom/latest/bulletins/competition-bulletins/all-closed-cases/cw_01122, accessed 24 August 2020.

Royal Mail, ¶6.

Royal Mail , ¶7.

Royal Mail , ¶281.

Royal Mail , ¶281(15).

Royal Mail , ¶521.

Royal Mail , ¶522.

The CAT cites the judgment in British Telecom. Royal Mail, ¶472.

Royal Mail , ¶487.

Royal Mail , ¶495.

In its analysis of the link between entry and consumer welfare, the CAT agreed with the experts that “as a matter of theory … entry could affect consumer welfare through three channels: (1) Allocative efficiency. Having a greater number of competitors will exert a downward pressure on price and so improve consumer welfare. (2) Dynamic efficiency. Increasing competition could spur operators to cut costs and hence price and/or produce better products all of which would improve consumer welfare. (3) Productive inefficiency: To the extent that a new entrant has higher variable costs than existing incumbents there will be an upward pressure on prices.2 Royal Mail, ¶505.

Royal Mail, ¶¶510–512.

Royal Mail, ¶512(3).

Royal Mail, ¶514.

Royal Mail, ¶516. The CAT cites Ridyard, D., “Calibration and Consistency in Article 102: Effects-based enforcement after the Intel and Post Danmark judgements,” Concurrences, No. 3 (2016), pp. 28–38.

Royal Mail, ¶529.

Royal Mail, ¶530.

Commission Guidelines on the application of what is now article 101(3) TFEU (2004/C 101/8). Information from European Union Institutions and Bodies (the Guidelines), ¶¶23–27, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52009XC0224(01)&from=EN, accessed 24 August 2020.

Sainsbury’s et al. For most of the claim period, the MIF typically accounted for 90 per cent of the Merchant Service Charge (MSC). See Sainsbury’s et al, ¶10(x).

³⁵Sainsbury’s et al, ¶¶42–105.

Sainsbury’s et al, ¶48.

Sainsbury’s et a., ¶¶10(vii) and 94.

Sainsbury’s et al, ¶92.

Sainsbury’s et al, ¶¶103–104. The SC noted that the effect of the collective decision set by the MIF is to fix a minimum price floor for the MSC that is non-negotiable. It found that, as a result, a significant portion of the MSC is immunised from competitive bargaining and is determined by collective decision rather than by competition. In the counterfactual, in which there is no MIF and instead issuers and acquirers settle transactions at the face value of the transaction (ie, settlement at par or, as it is sometimes referred to, ‘prohibition on ex post pricing’), the whole of the MSC is open to competitive bargaining and determined by competition and is significantly lower.

Sainsbury’s et al, ¶¶106–138.

Sainsbury’s et al, ¶106.

Sainsbury’s et al, ¶115.

Sainsbury’s et al, ¶116.

Sainsbury’s et al, ¶116.

Sainsbury’s et al,¶ 116.

Sainsbury’s et al, ¶¶139–174.

Sainsbury’s et al, ¶¶40, 171

Sainsbury’s et al, ¶171.

Sainsbury’s et al, ¶171.

Article 101(3) TFEU, p. 2, https://www.ee-mc.com/fileadmin/user_upload/Article_101__3.pdf, accessed 24 August 2020.

Sainsbury’s et al, ¶172.

Sainsbury’s et al, ¶173; Opinion of Advocate General Mengozzi, MasterCard and Others v European Commission, 30 January 2014, ¶156, http://curia.europa.eu/juris/document/document.jsf;jsessionid=933A7D52D5998C5850E024BBC6842148?text=&docid=147066&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=16557348, accessed 24 August 2020.

Sainsbury’s et al, ¶173.

Sainsbury’s et al, ¶174. The relevant passage in the Guidelines is paragraph 43, cited at Sainsbury’s et al, ¶148.

Sainsbury’s et al, ¶174.

Sainsbury’s et al, ¶¶175–226.

Sainsbury’s et a., ¶40.

Sainsbury’s et al, ¶176. The SC wrote in particular: “The broad axe principle is applicable where the claimant has suffered loss as a result of the defendant’s culpable conduct but there is a lack of evidence as to the amount of such loss. There is no scope for the application of any such principle where the burden lies on the defendant to establish a pass-on of the unlawful overcharge in order to reduce the amount recoverable by the claimant.” Approved Judgment of the England and Wales Court of Appeal (Civil Division), Civ 1536, 4 July 2018, ¶331, https://www.bailii.org/ew/cases/EWCA/Civ/2018/1536.html, accessed 20 August 2020.

Sainsbury’s et al, ¶¶196–197.

Sainsbury’s et al, ¶217.

Sainsbury’s et al, ¶226.