On 7 June 2019, Ofcom launched a Competition Act investigation regarding providers of equipment and related services in the electronic communications sector in the UK. Ofcom’s website states that it is looking to establish “whether competitors in the provision of equipment and related services in the electronic communications sector in the UK have infringed competition…
Competition law issues can arise in a wide variety of agreements and business arrangements. Regardless of sector and size, any business needs to be aware of competition law in order to meet its obligations and to protect its rights and position in the marketplace. We provide advisory services on all aspects of competition law.
We can advise businesses generally on how to structure their governance and legal risk systems, tailored to the type and scale of the business concerned. We cover the range of legal specialisations that typically affect technology companies and we can provide advice on intellectual property, data protection and cybersecurity issues that are critical to the technology sector.
Infringement of competition law has serious consequences both for companies and individuals. Contracts can be deemed invalid or unenforceable and egregious breach can even lead to criminal sanctions to the business and some individuals behind it. As a specialist firm, we advise companies and their investors on their regulatory and competition-law risk. Sources of risk include:
- Predictability of decision-making;
- Litigation risk and mitigation strategies;
- Contract and contract term risk;
- Merger risk or consolidation and risks on merger control clearances; and
- Vertical agreement risk.
Our experience and perspective allows us to assess these factors from a unique perspective, and we provide expert advice on all aspects of regulatory and competition law, including:
- UK and EU Merger Control;
- Legal Governance, Risk Control, and Audit Systems;
- Compliance training;
- Compliant corporate structures;
- Commercial agreements, including vertical agreements;
- State aid; and
- Private actions for breach of competition law.
We are also involved in setting the policy for regulation and competition law, with Tim Cowen’s policy papers being discussed at the highest level of the UK political system.
UK and EU Merger Control
Our Competition Team has an impressive range of expertise and experience in relation to investigations under the UK and EU Merger Control Regimes.We have recent experience advising on both Phase 1 and Phase 2 cases before the CMA, including in relation to online platforms and two-sided markets.
We advised a large number of investors concerned in the proposed acquisitions of Sky by 21st Century Fox and Disney in relation to non-economic public interest cases, competition and media regulation. We also write the GCR industry guide on public interest regulation of mergers in the UK, spanning defence and security, prudential regulation, and plurality of the media. In particularly, we are closely involved in the development of the UK’s new controls over foreign investment in tech sector companies.
Legal Governance, Risk Control, and Audit Systems
The nature of the technology industry means that both competition and collaboration are common between businesses. Care is needed in ensuring that agreements and arrangements are compatible with the law and that, where issues arise, the consequences and risks are properly appreciated and strategies are devised to address eventual consequences or to mitigate potential risks.
Our team offers state of the art competition law compliance training programmes for technology businesses and their staff.
Research suggests that a large proportion of SMEs in the UK are unaware of what constitutes a breach of competition law. This lack of awareness can put your business at serious risk, which compliance training will mitigate by ensuring that both management and employees are aware of what will and will not fall foul of the competition law regime.
Compliant Corporate Structures
Collaboration can take many forms. We have extensive experience on both the corporate and commercial structures used to put in place agreements with a collaborative element such as joint ventures, partial acquisitions and outsourcing agreements. Corporate transactions of all types may raise issues requiring competition law clearance from relevant regulatory and antitrust authorities. With regards to such transactions, we can advise on:
- jurisdictions and the applicability of the relevant regulatory and antitrust laws
- timetables and merger clearance project planning
- contractual issues in merger agreements designed to mitigate merger control risks
- notifications, presentations and advocacy of transactions before the relevant regulatory authorities
International transactions may be subject to the law of a wide range of jurisdictions. We have considerable experience in advising clients on the applicability of overlapping laws such as telecommunications regulations and financial services laws. In relation to merger control, we are able to act for parties of a merger, or for those who may be interested in raising competition law or wider public interest issues that deserve the attention of the authorities.
Competition law issues may arise in agreements that:
- fix or affect competitor’s independent decisions over prices, terms and conditions
- set sales territories and sales or market segmentation strategies that involve competitors
- align different businesses’ economic interests or are specialisation agreements
- involve sharing of resources, facilities, and products between businesses
- involve grant of public resources in any form to the benefit of certain undertakings or whole sectors
In technology markets, intellectual property licencing agreements, technology transfer agreements and all types of vertical agreements from distribution to franchising raise complex competition law issues which we can help address.
We offer cost-effective diligence and investigatory services to check whether existing contract are compliant with the competition law regime.
The European Union regulates the measures that involve aid by the Member States to undertakings or to the production of certain goods. State aid measures can take countless forms. EU law prohibits such aid when it distorts or threatens to distort competition in a way that is incompatible with the functioning of the internal market. Furthermore, aid compatible with the internal market cannot be granted without previous notification to and subsequent approval from the European Commission. We have experience in advising both undertakings and public bodies on State aid matters relating to a large number of sectors. We can advise on:
- agreements, laws and regulations that might involve the grant of aid measures through public resources, before they are signed, adopted or approved
- submission of complaints for alleged grant of aid measures to competitors
- defence from State aid allegations in the context of investigation and proceedings initiated by the European Commission
- litigation before national and European courts
Private Actions for Breach of Competition Law
Litigation in competition law is increasingly common. We have a leading practice in taking and defending claims for damages before the authorities and the courts. We both manage multijurisdictional litigation on behalf of clients and advise on jurisdictions and complaints to the relevant authorities that may be taken in parallel with litigation strategies. We can help with investigations and evidence gathering and pleadings. We work along with specialist counsel on court advocacy in different courts and jurisdictions.
With regards to funding your claim, even the biggest companies are conservative when it comes to this area. We are familiar with commercial litigation funders and their requirements. We can advise on the typical arrangements required by commercial funders.