UK Trends and Developments Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
changes include revised protection for applicants who are not the first to report new conduct (known as Type B and C leniency applications) to remove the availabil - ity of upfront immunity from financial penalties for cor - porate Type B applications and clarification that, while corporate Type B leniency discounts of up to 100% are available, in practice they are unlikely to exceed 75% and may be significantly lower. If implemented, these changes would mark an important development to the leniency regime, influencing the stage at which companies may consider applying for leniency. Private Antitrust Litigation Updates Information exchange In July 2025, an important development to the pri - vate antitrust litigation regime regarding the exchange of information was issued by the Court of Appeal in Phones 4u Limited v EE Limited and others [2025] EWCA Civ 869. This was an appeal by Phones 4u against the dismissal of its claim that it had been the victim of alleged collusive anticompetitive schemes in which senior executives of three mobile network operators and their respective parent companies had participated in between 2012–2014. Prior to its collapse into administration in September 2014, Phones 4u was an established indirect retailer of mobile phone connections. The alleged collusion related to what were said to be co-ordinated decisions by the mobile network operators to cease supplying mobile connections for their networks via Phones 4u. Phones 4u sought damages from the mobile network operators and their parent companies for infringing Article 101 of the Treaty on the Functioning of the European Union. This judgment provided clarity on two key aspects of competition law, which are outlined below. Ground One: Is a passive response to the disclosure of confidential information from one competitor to another sufficient to infringe competition law? Phones 4u argued that O2 had sought to “de-risk” its provisional decision to exit Phones 4u by collusion between its CEO and the CEO of EE and that this exchange was concertation as a matter of law. At first instance, Roth J found that O2’s CEO was “sounding
out” EE’s CEO as to whether, if O2 reduced the vol - ume of supplies it made via indirect retailers, EE would not take up that volume. This was found to be an invi - tation to collude by O2, but the judge accepted EE’s evidence that its CEO essentially did not engage and remained passive, until the conversation moved on. He also found that the remarks were “too vague” to remove uncertainty for EE as to O2’s future conduct. On appeal, Phones 4u argued that the judge had failed to identify that a passive response to the disclosure of confidential business information is sufficient to infringe competition law (by reference to a reduction of uncertainty for the disclosing party). The Court of Appeal rejected that submission and found no error of law. In relation to the effect of a recipient’s passiv - ity on the disclosing party, it outlined the following principles: • Some reciprocity is required. That may be satisfied where a disclosure of future intentions or conduct is made to a competitor who either accepts it or requests it. While the case law is not always clear on precisely what “accepts” means, there must be a consensus of some form. • The conduct must at least be capable of reducing uncertainty. In this instance, the judge was entitled to conclude that the information provided by O2 was too vague to reduce uncertainty. • Concertation requires an element of consensus. Whether there is consensus will depend on the context. Where information is requested (either expressly or by conduct) it is straightforward to see that consensus exists. However, where there is an unanticipated “one-way” communication of confi - dential information from A to B, whether a passive response by B is to be taken as tacit approval will depend on the facts. In many circumstances, a failure to object will be seen as tacit approval and it is likely to be difficult for B to persuade a regula - tor or tribunal that they have not taken account of the information. It is also quite possible that A may derive something from B’s reaction, even if that reaction is entirely passive. Ground Two: Can the “Anic” presumption be rebutted by anything other than public distancing or a report to the competition authorities?
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