Competition

This Note explains the significance of market definition in a merger between competitors, also known as a horizontal merger. It discusses how the antitrust agencies and the courts analyze a relevant product and geographic market in a horizontal merger under the 2010 Horizontal Merger Guidelines. It provides practical advice on how to define relevant markets and sets out how to use market definition to further analyze the potential effects of a horizontal merger. 

This Note outlines the key issues related to creating and maintaining an antitrust compliance program.

This Practice Note provides an overview of the key antitrust issues raised by participation in an SSO and licensing of standard-essential patents (SEPs).

A practice note explaining where to find EU law content from a topic page.

This Note explains the associate rules under the Hart-Scott-Rodino (HSR) Act, including discussing the definition of the term associate and how to identify the acquiring person's associates. It also sets out how to make the disclosures required by the associate rules by explaining how to determine reportable associate overlaps and minority holdings of associates and how to report them on the HSR form.

A practice note on the best value regime, how it has developed and best value considerations in outsourcing.

BSF was a long-term programme for investment in England's secondary schools. In July 2010, the government decided not to progress with individual BSF projects that had not reached financial close. Following the end of the new-build BSF programme, we no longer maintain this note.

This Practice Note examines how cartels and their participants are treated under the provisions of the Competition Act 1998 and the Enterprise Act 2002. It reviews the Office of Fair Trading's investigation procedure and its policy for imposing fines and granting leniency and looks at practical issues that may arise.

A practice note setting out the findings of certain government reports into the performance of PFI contracts, and a discussion of change protocols in PFI and other contracts.

This Practice note considers co-operation between national competition authorities, the European Commission, and each other in relation to the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union under Regulation 1/2003. It also briefly covers co-operation between the Commission and competition authorities in third countries, as well as issues that may arise in relation to co-operation between competition authorities in the future.

A specimen EU competition compliance manual

This Practice note considers the scope and application of Article 101 to commercial agreements. Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements that have as their object or effect the restriction, prevention or distortion of competition within the EU and which have an effect on trade between EU member states. Definitions of each of these elements is provided, together with guidance on the risks of infringement and on the possibility of obtaining an exemption from the Article 101 prohibition. Guidance on the enforcement of EU competition law under Regulation 1/2003 is also provided.

This Practice note considers the scope and application of the Chapter I prohibition contained in the Competition Act 1998 to commercial agreements. Chapter I prohibits agreements that have as their object or effect the restriction, prevention or distortion of competition within the UK, and which have an effect on trade within the UK. Definitions of each of these elements is provided, together with guidance on exclusions to the prohibition and the risks of infringement. A checklist provides guidelines on handling requests for information from, and investigations by, the Office of Fair Trading. In March 2012 the government  announced its decision on proposals to reform the UK competition regime. The government decided to establish a new single Competition and Markets Authority to replace the OFT and Competition Commission.  The government  also decided on various, largely procedural,  changes to strengthen the mergers, markets and antitrust enforcement regimes. For further information see Government decisions on establishment of Competition and Markets Authority and reform of UK competition regime.  These changes will be implemented by the Enterprise and Regulatory Reform Act 2013 (see Enterprise and Regulatory Reform Bill 2012 -13: competition tracker).

The Enterprise Act 2002 amended the Company Directors Disqualification Act 1986 to enable the Office of Fair Trading to seek disqualification orders against directors of companies that have been found to have infringed competition law. This Practice note explains the scope of these powers and their application.

This Practice note considers the rights of parties affected by a breach of UK competition law to complain to the competition authorities; the rights of third parties to complain about mergers in the UK; and the super-complaints regime. Following a consultation in March 2011, the government has announced its decision on proposals to reform the UK competition regime. The government has decided to establish a new single Competition and Markets Authority to replace the OFT and Competition Commission.  The government has also decided on various, largely procedural changes to strengthen the mergers, markets and antitrust enforcement regimes. For further information see Government decisions on establishment of Competition and Markets Authority and reform of UK competition regime.

This Practice note provides an overview of the reasons why companies should have a competition compliance programme. It offers guidance on how to formulate a compliance programme and provides a specimen compliance manual. (The authors are grateful to Lesley Ainsworth of Hogan Lovells International LLP for her assistance in the preparation of this Practice note).

This Practice note considers the extent to which companies may be able to prevent disclosure of documents on the grounds that the documents are entitled to protection by the right of legal professional privilege in relation to European Commission competition investigations. (The authors are grateful to Lesley Ainsworth of Hogan Lovells International LLP for her assistance in the preparation of this Practice note).

The Practice note on Procedure, negotiation and enforcement examines the nature of the European Commission's powers of supervision and enforcement in relation to Articles 101 and 102 of the Treaty on the Functioning of the European Union, and the substantive and procedural limits placed upon such powers. It provides guidance on procedures used by the Commission to obtain information, bring an end to infringements and to calculate fines. The review of Commission acts by the EU Courts and enforcement of competition rules by national authorities and courts are also considered.

Public procurement is the purchase of goods or services by public bodies. This Practice note considers the European Union obligations imposed on purchasing authorities to award contracts on an open, competitive and non-discriminatory basis. The options available to a supplier of goods or services where a purchaser does not comply with EU procurement rules are also explored.

This Practice note considers the implications of activities carried out and measures taken by state institutions and public bodies under the Competition Act 1998. This note discusses, first, the instances in which public bodies may be held to engage in economic activity and hence act as undertakings. It then analyses the exclusion provided by paragraph 4 of Schedule 3 of the Competition Act for undertakings engaged in services of general economic interest and revenue-producing monopolies. Finally, the exclusion of agreements and conduct that result from compliance with a legal requirement under paragraph 5 of Schedule 3 is also discussed.

This Practice note looks at the criminal offence introduced by the Enterprise Act 2002 in respect of individuals who engage in hardcore cartel activity. It also considers the scope of the offence and its application, the possibility of immunity and the way in which the offence, and the way it is investigated, interacts with the civil competition law regime.

The concept of the relevant market plays a central and often critical role in the application of the Chapter I and II prohibitions in the Competition Act 1998. The market definition adopted for the purpose of the prohibitions is likely to have a decisive bearing on the outcome of a particular inquiry.This Practice note describes the nature and application of the economic principles used to define markets and the type of evidence that can be used in defining markets. It provides a checklist of points to consider in establishing a workable market definition.

The Utilities Practice note outlines the UK's system for regulating its telecommunications, gas, electricity and water industries. Utility regulation is a complex topic of considerable political and economic importance and this note covers the principles of regulation following industry privatisation and future plans for regulation. The powers of the Office of Fair Trading and the various sectoral regulators under the Competition Act 1998 are examined, together with the combined effect of the Competition Act 1998 and the Enterprise Act 2002.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: international joint ventures, and forms part of our international joint ventures transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: international joint ventures, and forms part of our international joint ventures transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: international joint ventures, and forms part of our international joint ventures transaction guide.

This Practice note considers the potential application of competition law to a share purchase transaction; in particular whether the transaction as a whole is subject to UK or EU merger control, and whether certain restrictions that are generally entered into in connection with such transactions (such as non-compete covenants, supply agreements and licences of intellectual property rights) are subject to additional regulatory scrutiny and control. Following a consultation in March 2011, the government has announced its decision on proposals to reform the UK competition regime. The government has decided to establish a new single Competition and Markets Authority to replace the OFT and Competition Commission.  The government has also decided on various, largely procedural changes to strengthen the mergers, markets and antitrust enforcement regimes. For further information see Government decisions on establishment of Competition and Markets Authority and reform of UK competition regime and Enterprise and Regulatory Reform Bill 2012-13: implementation of competition reforms.

This Q&A provides country-specific commentary on Practice note, Competition: international joint ventures, and forms part of our international joint ventures transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

This Q&A provides country-specific commentary on Practice note, Competition: International Acquisitions, and forms part of our international acquisitions transaction guide.

A practice note on the competitive dialogue procurement procedure.

A Practice Note discussing transactions that are not reportable under the Hart-Scott-Rodino (HSR) Act. Merger enforcement of consummated deals continues to increase but it is difficult to focus clients on antitrust risks of deals that are not reportable under the HSR Act. This Note offers both client management suggestions and strategies for dealing with non-HSR reportable transactions.

A template briefing for in-house counsel to give business executives on the dangers of cooperating with competitors.  Click here to download in Microsoft Word.

This Practice Note provides an overview of the legislation and policies relevant to criminal antitrust enforcement in the US, and discusses practical issues facing a company that discovers it is the potential target of a criminal investigation. Among other things, the Note addresses the potential criminal penalties for antitrust violations, and outlines the Department of Justice Antitrust Division's leniency program, by which companies and individuals can receive amnesty from criminal prosecution by reporting illegal antitrust activity and cooperating with the government's investigation.

This Practice note sets out the jurisdiction of the Competition Appeal Tribunal (CAT) to hear claims for damages caused by breaches of competition law that may be brought by individuals and consumer groups. It examines the procedures that apply in damages claims and the substantive issues that are likely to arise for consideration by the CAT.

This Note explains how to determine whether a transaction is reportable under the Hart-Scott-Rodino Act. It sets out the HSR threshold levels and explains how to determine whether a transaction meets the size-of-person and size-of-transaction tests. This Note also offers guidance on applying aggregation principles under the HSR rules and describes certain potentially reportable transactions that may be easily overlooked, such as back-end and secondary acquisitions. 

This Note outlines the course of antitrust investigations conducted by the Department of Justice and the Federal Trade Commission before they start enforcement proceedings.

This note examines Electricity Market Reform (EMR) introduced by the EMR White Paper in 2011, including the draft Energy Bill 2012 published in May 2012.

This Practice note considers the application of EU competition law to postal services.

This Practice note considers the impact of the European Union's enlargement on the enforcement of EU competition policy.

The Vertical agreements Practice note considers the application of EU competition law to vertical agreements. Vertical agreements are the most frequently encountered commercial agreement. They are those entered into between two or more firms operating at different levels of the market, for example, between a manufacturer and distributor. This Practice note provides an essential guide to the Commission's vertical restraints policy, in particular, the vertical restraints block exemption Regulation 330/2010, together with its accompanying guidelines.

This Practice note explains the European Commission's policy for early settlement in cartel cases, and the procedure whereby parties to a cartel investigation can settle a case by admitting liability for their involvement in the cartel in exchange for a shorter administrative procedure and a reduction in fines.

A note setting out the issues to consider when carrying out an evaluation of tenders for a public contract to ensure that the evaluation process complies with the public procurement regime.

To build on the first four waves of LIFT (NHS Local Investment Finance Trust) projects, Community Health Partnerships (CHP) promoted an "Express LIFT" framework, to deliver primary healthcare PPP projects. December 2012: Following the change in government and the healthcare reforms that culminated in the Health and Social Care Act 2012, we have updated this resource to refer to CHP taking on PCTs' shareholdings in Express LIFT projects, but we will no longer maintain this note.

This flowchart guide contains a short overview of the application of Article 101 to commercial agreements, designed to give the user a general understanding of the key legal and practical issues relevant when negotiating or operating commercial agreements in the EU.

This guide contains an overview of the application of EU competition rules to research and development agreements and other forms of horizontal co-operation, such as specialisation or sub-contracting agreements. It focuses primarily on the EU block exemptions for R&D and specialisation agreements.

This guide contains an overview of the application of EU competition rules to selective distribution systems, including a flowchart analysis of the motor vehicle distribution block exemption Regulation 1400/2002.

An overview of the scope and application of the old block exemption on exclusive distribution agreements, which remained effective until 31 December 2001.

This flowchart guide contains an overview of the application of the EC competition rules to franchising agreements, focusing primarily on the old EC block exemption for franchise agreements. It is designed to give the user a general understanding of the key legal and practical issues.

This note is about the effective use of framework agreements in both the private and public sectors.

This glossary contains plain-language definitions of some key legal and technical terms used in the PLC Competition materials. 

A practice note setting out the key powers and duties of Monitor to regulate competition in the healthcare market, and the applicable economic licensing regime.  

This note provides guidance on how to conduct an analysis of market concentration using the Herfindahl-Hirschman Index and briefly explains its application.

This Practice Note discusses violations of the Hart-Scott-Rodino (HSR) Act through use of transaction structures or other devices to avoid the HSR Act, called Rule 801.90 violations.  

This Note discusses the exemptions available to transacting parties under the Hart-Scott-Rodino (HSR) Act and regulations. Some exemptions are specific to the type of acquisition (such as voting securities, assets or non-corporate interests), while others are generally applicable to all types of transactions.

This Note discusses Item 5 of the Hart-Scott-Rodino Act Notification and Report Form (HSR form), including the scope of Items 5(a) and 5(b) and how to complete each item. It also discusses how to update Item 5. Item 5 is the most common deficiency in HSR forms, likely because of its complexity.

A compilation of the Federal Trade Commission Premerger Notification Office's (PNO) informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) Form Item 4(d).

A compilation of the Federal Trade Commission Premerger Notification Office's informal staff interpretations since 2011 relating to Hart-Scott-Rodino (HSR) Rule 801.1(d)(2), updated quarterly.

A compilation of the Federal Trade Commission Premerger Notification Office's (PNO) informal staff interpretations since 2011 relating to Hart-Scott-Rodino (HSR) Rule 802.21, updated quarterly.

A compilation of the Federal Trade Commission (FTC) Premerger Notification Office's (PNO) informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) Rule 801.10 on valuing the size-of-transaction, updated quarterly.

This Note summarizes the antitrust issues surrounding the exchange of information between parties during due diligence and the negotiation of a merger, acquisition or joint venture. It also highlights issues to consider in planning the integration of merging companies.

The Joint Contracts Tribunal (JCT) Public Sector Supplement 2011 is intended to help public sector employers use a JCT building contract to meet the government's fair payment principles, to allow for transparency and freedom of information requests, and to encourage use of Building Information Modelling (BIM) protocols.

An outline of the US Department of Justice's leniency program for antitrust violations. Under this program, companies and individuals can receive amnesty from criminal prosecution of antitrust offenses by reporting illegal activity and cooperating with the government's investigation.  

This Practice note considers the scope of EU Directive 2003/55 concerning common rules for the internal market in natural gas. It also considers Regulation 1775/2005 on conditions for access to the natural gas transmission networks. (Both Directive 2003/55 and Regulation 1775/2005 are to be repealed as of 3 March 2011, and replaced by Directive 2009/73 and Regulation 715/2009, respectively.)

A note on the uses, options and establishment of joint venture vehicles by local authorities.

This Practice note considers the merger control provisions of the EEA Agreement and their interaction with the EU Merger Regulation. It explains the relevant supra-national jurisdictional and procedural rules that apply when a merger involves parties with activities in Iceland, Liechtenstein and Norway, and, in particular, the practical considerations that apply when the merger could also fall within the scope of the EU Merger Regulation.

This Note provides an overview of the types of remedies the federal antitrust agencies use to preserve competition post-merger, specific remedy provisions and how the agencies and the merging parties negotiate the remedies.

This Practice note considers the merger control regime for the assessment of mergers between water companies in England and Wales under the Water Industry Act 1991, as amended by the Enterprise Act 2002. It outlines the scope of the special merger control regime, notes the areas in which the assessment procedures differ from those applied to standard merger cases, considers the form and application of the substantive assessment, and reviews the implementation of appropriate remedies.

This note explains the principle of net neutrality and what regulation exists and is likely to be introduced to preserve the neutrality of the internet in the EU and the UK.

The advantages of notifying (and certain limitations upon those advantages) an agreement or practice to the European Commission under the old Regulation 17/62. The system of notification was abolished with the introduction of Regulation 1/2003.

A Practice note outlining the various model contracts published by the Office of Government Commerce, including where they can be accessed and when to use them. Note: in 2010 the OGC was transferred from HM Treasury to the Efficiency and Reform Group within the Cabinet Office where it was confirmed that it ceased to exist as a separate entity in 2012. However, the agreements referred to in this note have not yet been superseded and are still available for use (although they are no longer updated by the government).

A practice note considering the key areas that will need to be considered when the OGC Model ICT Service Agreement is used for a project involving open source software.

A practice note on open source software (OSS) and the legal and practical implications of its use by public authorities.  The note considers: The reasons for using OSS. The government's policy on doing so. The risks inherent in using OSS. Guidance on the public procurement implications.

This note considers the issues a public body may encounter when contracting with or setting up a third sector organisation.

This Practice Note provides a brief overview of the US antitrust law relating to tying practices, with a particular emphasis on patent and technological tying arrangements and recent developments in these areas.

This Practice Note explains how to prepare a Hart-Scott-Rodino Act (HSR Act) Notification and Report Form (HSR form) on behalf of a buyer who must report a transaction under the HSR Act.

This Practice note considers the procedural rights of parties alleged by the European Commission to have breached Article 101 or 102 of the TFEU once the Commission has completed its preliminary investigations.  It also discusses the rights of complainants and other third parties, and the role of the Hearing Officer in the Commission's administrative procedure.

This Practice note considers the definition of a public concession (works and services) and when it will be appropriate to use one. It also looks at how the procurement regime applies to concessions (including a review of the European Commmission's interpretative communication on concession agreements).This note does not consider the accounting treatment of public concessions.

A practice note looking at the public procurement regime that applies in England and Wales. It includes a review of who must comply, contract thresholds, in-house contract award, the obligations if the rules do apply and the remedies for a failure to comply with the rules.

A practice note charting developments relating to the proposal for a Directive on the award of concession contracts.

A practice note charting developments relating to the proposal for a Directive of the European Parliament and of the Council on public procurement (Public Sector Directive reform).

A practice note on the government's transparency programme and future developments in the transparency agenda. The note: Provides an overview of the government's transparency requirements. Summarises some of the relevant guidance on implementing the transparency requirements. Highlights some of the privacy implications of the transparency requirements. Looks at the impact of the transparency requirements on public procurement processes. Looks at future legal developments in relation to transparency and rights to data. Provides a checklist to help public sector lawyers advise their organisations on the transparency requirements.

On 20 December 2011, the European Commission published the following proposals to modernise the EU public procurement rules: Two proposed directives to replace Directive 2004/17 (Utilities Directive) and Directive 2004/18 (Public Sector Directive). A separate proposed directive on the award of concession contracts. This applies to works and services concessions and also applies in the utilities sector. This practice note sets out the key aspects of the proposed reforms and includes links to all documents published by the European Commission relating to the negotiation of the reforms.

This practice note provides an overview of the retention of employment model (RoE) looking specifically at the use of RoE in relation to transfers of services from the public sector to the private sector.

This Practice note considers the European Commission's powers to conduct a sector inquiry under Article 17 of Regulation 1/2003. The Commission uses a sector inquiry to gain a better understanding of the functioning of a specific market and to uncover possible breaches of Articles 101 and 102 of the Treaty on the Functioning of the European Union. The Practice note provides guidance on procedures used by the Commission to obtain information during a sector inquiry and considers examples of Commission practice in this area. It also provides an overview of the complementary Consumer Market Watch process, introduced in January 2008.

A note introducing the public sector shared services initiative, looking at what services are suitable for a shared delivery approach and the risks and benefits of sharing services.

A note looking at the various project structures that can be used in public sector shared services projects and addressing the issues that are likely to arise when implementing them.

This note summarises some of the key competition law and regulatory issues to be addressed whilst undertaking a due diligence exercise on a software business.

This note contains a table to track the progress of the various consultations issued by the European Commission in relation to the review and revision of state aid secondary legislation and guidance, in the context of the state aid modernisation project.

A practice note on sustainable public procurement, including details of the legal framework, tips on how to take account of sustainability issues in the tender process and the background to the sustainability agenda.

This Practice note considers the application of EU competition law to maritime transport.

This Practice note considers the application of the English law of privilege to competition investigations in the UK.

This Practice note examines the impact of the Treaty of Lisbon on the decision-making procedures and substantive policies of the European Union.

This Practice note examines how agreements between businesses which compete with each other at the same level of a market are dealt with under EU competition law. It considers business practices, such as information exchange, joint purchasing and selling, and trade association membership. Agreements intended to limit output and increase prices, or to exclude competitors from a market, are routinely condemned by the European Commission as serious infringements of competition law. Other agreements which have the impact of limiting competition may still have a legitimate purpose, for example, joint purchasing agreements, and so may satisfy the requirements for exemption under Article 101(3) of the Treaty on the Functioning of the European Union.

When drafting or reviewing an agreement, it is important to appreciate the conflict that exists between the rules of the Treaty on the Functioning of the European Union (TFEU) that aim to promote competition and the free movement of goods, and national laws that protect intellectual property rights. The Practice note Intellectual property transactions examines the principles of EU law that apply to intellectual property rights generally; the application of Article 101 of the TFEU to licences of technology (patents and know-how), trade marks, copyright and computer software; and the application of Article 102 of the TFEU to the exercise of intellectual property rights.

The European Commission has power under the EU Merger Regulation to vet major cross-border mergers and acquisitions, and to prohibit them when they are incompatible with the internal market. This Practice note considers the scope and application of the Merger Regulation in relation to mergers and acquisitions. (Joint ventures are considered separately in the Practice note, EUJoint ventures).

The wide geographical scope of  international merger and acquisition activity often means that the competition law aspects of such transactions will be considered by a large number of different regulators. Identification of jurisdictions where filings are required and of the key strategic steps to be taken is essential.This Practice note gives practical guidance on the effective management of international competition issues.

A research and development agreement is one in which two or more companies agree to collaborate in the development of new products or processes. A specialisation agreement is a form of co-operation whereby one party (in the case of unilateral specialisation) or two or more parties (in the case of reciprocal specialisation) agrees/agree to give up manufacture of a particular product and instead obtain it only from the other party/parties, or two or more parties agree to have a product manufactured only jointly. Such agreements can, by their very nature, restrict competition. However, they can also benefit consumers, in the form of better and new products and lower prices.The Practice note on Collaborative agreements examines the UK approach to these types of agreements, essentially paralleling the treatment given under EU competition law.

Joint ventures encompass a broad range of commercial operations, ranging from fully-fledged merger-like operations to co-operation limited to particular functions, such as production, distribution or research and development. This Practice note provides an understanding of the principles of EU competition law applicable to joint ventures, as an aid to defining whether EU or UK competition law (or both) apply to any particular arrangement. In the UK, it examines the treatment of joint ventures both as a merger under the Enterprise Act 2002 and as a Chapter I agreement under the Competition Act 1998.

This Practice note examines a variety of different pricing practices, including price-fixing, predatory pricing, resale price maintenance and excessive pricing. In each case, it analyses how UK law under the Competition Act 1998 and the Enterprise Act 2002 applies to a particular practice.

An analysis of the circumstances in which UK competition laws may apply to a joint venture or strategic alliance.

A practice note on the mechanisms for making changes to public contracts and the procurement implications arising from making the changes.

A discussion of employee provisions in consent decrees settling federal antitrust investigations of mergers and acquisitions. This article includes links to PLC What's Market summaries of recent federal merger consent decrees.