Public enforcement

Public enforcement

1. The ECN

   • Helps to determine whether something is more appropriately dealt with by NCA/EU
     • Most instances - NCA
     • EU
       • From an efficiency standpoint
       • Use of resources - decentralisation
   • No legal status
   • Decides upon work-sharing

2. Division of competence

   • Article 3(2)
   • UK must be applied consistently within EU
     • Where 101 applicable, domestic law cannot go further than EU. Where 102 applicable, domestic law can go further than EU

3. Penalties

   • Severity of the sanction
     • Size of fine, cost needed to outweigh benefits, can put firm out of business
     • Individual sanctions - jail
   • Likelihood of sanction
     • Will never be 100%, therefore have to increase severity
   • Social/market stigma
   • Reg 1/2003 - fines on undertakings for breach
   • Competition Act 1998 - includes director disqualification and criminal cartel offence

4. International Issues

   • Extraterritoriality
     • Applying domestic law to conduct beyond borders
     • US 'Effects Doctrine'
       • US v Aluminium of America
         • Could US Sherman Act get involved in an agreement that didn't take place in US - where US firms were not involved
           • Principle: 'any state may impose liabilities'
       • Foreign trade antitrust improvement act - foreign conduct must have a 'direct, substantial and reasonably foreseeable effect on US commerce'
       • Comity considerations of other states
         • Hoffman La Roche - 'opposed to extraterritorial jurisdiction where claimants seek to recover solely for foreign injuries not incurred in country in which private suit is filed'
   • Havana Charter
     • 46(1) - each member of ITO shall take measures and co-operate when practices have harmful effects on the market
   • GATT (1948) business practices that restrict competition may hamper expansion of world trade
   • McDonald Douglas/Boing Merger
     • Most of its contracts with Pentagon - EU concerns over merger - damage to markets. US VP: 'if merger doesn't go through, consider trading sanctions to impose on EU'
       • Reflects the globalisation of mergers/competition law

5. Blocking Statutes

   • Reaction to foreign discovery of information
     • UK Protection of Trading Interests Act 1980 - s.6: allows for domestic recovery of damages

6. The 'implementation doctrine'

   • If, in applying UK competition law, you could only capture UK firms - might incentivise them to move elsewhere

7. Bilateral Cooperation

   • Notify of interest in other state
   • Positive comity - anything positive can initiate another investigation
   • ECN takes precedence over national confidentiality