Let’s talk about Competition Law

Let’s talk about Competition Law

The LexisNexis Aspire networking and professional group facilitated by Sophie Gould met on Thursday 11th April 2019.

The first talk of the evening came from two Competition lawyers: Dina Jubrail and David Cardwell. Dina trained in-house at BT and has subsequently moved into private practice and currently works for Baker Botts in their Competition team. David has always worked in private practice but previously practiced in Scotland, and now works alongside Dina in the Baker Botts team in Brussels.

Upon taking the floor, the pair kicked off their presentation by explaining what competition law is and why it matters. They laid out some of the basics as follows:

  • it enables businesses to succeed and navigates the factors on how to achieve this (eg antitrust and privacy issues)
  • it involves regulating a businesses’ behaviours and interactions with other companies
  • it allows you to be involved with everything from the economics to general strategy
  • it is constantly adapting to the ever-changing world

David gave a recent example of where competition law played a key role: Facebook’s purchase of WhatsApp. One of Facebook’s key motivators was not just in buying up the market in messaging services, but also the currency of customer data; making their fine for targeted advertising using said information without informing customers somewhat inevitable.

Dina and David also discussed the challenges and opportunities which may arise within competition law. An issue that fulfils both those criteria is how reactive this area of law can be. For example, exchanging pricing plans with a competitor may seem innocent but may transpire to be sensitive information which changes how the competition performs in the market. A reactive market means being excessively stringent with all forms of interaction, much of which is strictly monitored by European competition law.

This led to the panellists discussing the relationship between collaboration and competition. Articles 101-2 of the Treaty in the Functioning of the European Union (TFEU) (directly effective in the UK via Chapters 1-2 of the Competition Act 1998) are fundamental to competition law. Article 101 prohibits companies from reaching agreements with competitors (potential or substantial). Article 102 prevents companies from holding a dominant position in the market – to the extent that it negatively affects their competitors or customers. This is usually where a company has an unfairly large market share, an example of which is the intel chip case. David hurried to point out that Brexit will not affect the governance of these rules - the government has confirmed that this area of law will continue as it is for the foreseeable future.

Both Dina and David recounted their respective experiences of being raided by the European Commission in enforcing such rules. They are entitled to raid the entire company and its office and that of its competitors. This can comprise looking at employee’s personal mobile devices and WhatsApp messages. The pair said the key message from this is that competition law, and compliance with it, is vital to avoid extensive disruption to the day-to-day running of a business.

At this point, an audience member posed the pair the question ‘do you think EU regulation stops businesses competing successfully with the US?’ David discussed how both Angela Merkel and Emmanuel Macron are pushing for less strict regulation on behalf of EU companies. Dina posited that the next Commission may introduce a new and improved test called ‘the protectionist test’, which could help with this issue.

The pair also discussed the contradictory elements of competition law:

  • competition lawyers want to encourage competition but equally need to heavily monitor any interaction of the company with their competitors, eg by implementing an effective compliance policy and setting a cohesive agenda before clients go into meetings
  • participating in joint venture agreements, eg strategic alliances, but monitoring them closely as these can easily get complicated
  • implementing merger control as competition law will be engaged throughout any merger timeline. This process is often slow due to the notification regimes and you will be charged with checking corners aren’t cut, even though many in-house businesses will try and push deadlines

The pair rounded off this section by offering four tops tips for a successful career in Competition law:

  • monitor industry merger and acquisition trends
  • guide any deal structure from the outset
  • consider the protection and defence of IP rights
  • engage with your regulators (eg Ofcom and Ofgem) – it is much better to start a dialogue to show your awareness of the industry

Additional recommended reading:

Competition law risk management guide—dominant companies

Competition law risk management guide—non-dominant companies

This is just a taster of the many practical tools within LexisPSL to help put you at the centre of your business; managing rapidly evolving risk and building a reputation for trusted and timely advice. To find out more request a free no-obligation trial.

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About the author:

Claire is a paralegal is the LexisAsk and Commercial and Sectors teams at LexisNexis teams. She previously did a law conversion at BPP Law school and plans to study the LPC latterly. She is an English literature graduate and hopes to combine her studies by pursuing a career in the IP sector.

Claire is a keen member of the LexisNexis Singers and practices with them weekly. Outside of work, Claire is a keen hockey player and cyclist and brings this energy into everything she does in her job.