UK Trends and Developments Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
Subject to proof to the contrary, there is a presump - tion that undertakings participating in concerted prac - tices and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on the market (Anic). “Public distancing” is a term of art which means mak - ing clear to the other parties involved that it wishes to take no part in the actual or proposed anticompetitive conduct. At first instance, despite finding that there had been no “concertation”, Roth J went on to analyse whether the other three elements of a concerted practice were present (ie, conduct on the market and a relationship of cause and effect between the two). On the ques - tion of causation, Roth J concluded that although the Anic presumption had been engaged, it was rebutted by EE because, on 10 October 2012 it signed a new three-year deal with Phones 4u and the agreement was then amended in December 2012 to increase the volume that EE sold through Phones 4u. The appellant argued that Roth J had wrongly decided that the presumption could be rebutted by something other than public distancing or a report to the com - petition authorities. The Court of Appeal found that: • There are two presumptions in Anic. In addition to the presumption that undertakings participating in concerted practices that remain active on the mar - ket take account of the information exchanged with competitors, the Court of Appeal found an addi - tional presumption in Anic. The Court described the “participation” presumption in Anic: that par - ticipation in a meeting at which an anti-competitive agreement/concerted is concluded without public distancing is presumed to amount to participation. • Public distancing is not essential. The proposi - tion that public distancing was required to rebut the Anic presumption was not supported by any CJEU authority, lacked logic and would lead to unprincipled differences of approach depending on whether there had or had not been a meeting between competitors. Such an approach would lead to bizarre distinctions between potential con - duct taking place at meetings and, for example, in WhatsApp chat messages.
• The presumption only applies to those receiving information. In their appeal, Phones 4u argued that Roth J wrongly held that the presumption only applied to those in receipt of information. The Court of Appeal found that this was a mischarac - terisation of the judgment. The critical point was that EE’s CEO conveyed nothing to O2’s CEO, so there was nothing that O2 gleaned from the meet - ing which could have influenced O2’s conduct. In contrast, if EE’s CEO had given some indication or comfort, then that would in effect have been a provision of information to O2. This judgment therefore provides important clarifica - tion on the bounds of information exchange which will be of importance to businesses seeking to abide by competition law. Limitation We have also seen important developments in the context of limitation, following a judgment from the Court of Appeal in December 2024 in the MIF Umbrel - la and Merricks proceedings. By way of background to this appeal, the limitation rules in competition claims are complex and depend on: (i) which court the claim is brought in; (ii) whether the claim is standalone or follow-on; (iii) when the claim is brought; and (iv) when the infringement of competition law occurred. At first instance in the MIF Umbrella and Merricks pro - ceedings [2023] CAT 49, the claimants argued that a decision of the Court of Justice of the European Union (Case C-267/20, Volvo AB and DAF Trucks NV v RM , EU:C:2022:494) meant that limitation periods in a claim for damages for competition law infringe - ments could not begin to run until: (i) the time when the infringement of competition law had ceased; and (ii) when the injured party knows, or can reasonably be expected to know, the fact it has suffered harm as a result of the infringement and the identity of the perpetrator. This would have marked a significant change to the limitation rules which apply for damag - es suffered prior to 9 March 2017 which currently, for example, only allow for a two-year limitation period for proceedings that commenced after 1 October 2015 where the facts giving rise to the claim arose before 1
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