This Checklist sets out a methodology to apply when considering whether unilateral conduct by a single undertaking may fall within the scope of the Chapter II prohibition and amount to an abuse of a dominant position. NOTE—This Checklist assumes the starting point is unilateral conduct by a single undertaking. It is aimed at guiding an assessment of whether that conduct may amount to an abuse of dominance under the Chapter II prohibition. It does not address situations involving collective dominance or coordinated conduct between multiple undertakings. Is the entity an ‘undertaking’ engaged in ‘economic activity’? The first question to consider is whether the entity concerned is an ‘undertaking’ and whether the conduct is carried out by that undertaking. The Chapter II prohibition applies only to ‘undertakings’—ie entities engaged in offering goods or services on a market. For further information on the concept of an ‘undertaking’ and the meaning of an ‘economic activity’, see further: What is an undertaking? It is therefore necessary to identify the undertaking carrying on the activity in question.

This Checklist set out factors that are relevant for assessing a given undertaking’s market power. Such an assessment is not only relevant for mergers, but also, for example, when assessing whether an undertaking is deemed to be dominant. Does an undertaking have market power? The following factors should be taken into account when assessing whether an undertaking has market power. Not all of these factors have to be taken into account in every case—eventually, a case-by-case analysis based on relevant market characteristics is required. Market position of undertaking and its competitors • Calculation of market shares is usually the starting point of any analysis ◦ the higher the market share and the longer the period of time over which it is held, the more likely that undertaking has a dominant position ◦ 50% market share or more: usually evidence of existence of a dominant market position ◦ 40–50% market share: can indicate market power, but depends on additional factors ◦ below 40% market share: dominance is not likely. However, there may be specific cases below that

This Practice Note discusses the value and effectiveness of measuring the quality of in-house legal departments. It covers identifying the pitfalls and sharing practical lessons that can be learned from adopting such metrics into the business. In the past, lawyers may have felt that demonstrating their 'value' to the business was simply not something that they needed to do, but it is now generally accepted that the need for and use of assessment frameworks in the legal team is inevitable. Metrics allow Chief Legal Officers (CLOs) to evaluate and improve the performance of their legal teams and, ultimately, manage them more effectively. Why build and use metrics? In today’s business market, performance efficiency is paramount. Metrics offer CLOs the tools to: • assess and improve the performance of their lawyers • clearly demonstrate the value of the department to the business • usher in change • reduce costs For example, metrics and matter-tracking can reveal areas where a legal team is asked the same questions repeatedly from the wider business.

THIS PRACTICE NOTE APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES What is the employer covenant? Traditionally, in the context of a defined benefit (DB) occupational pension scheme, the concept of ‘employer covenant’ has been understood to refer: • the legal obligations of the employer to support the scheme, and • its financial ability to meet its legal obligations to support the scheme It was not until the Occupational Pension Schemes (Funding and Investment Strategy and Amendment) Regulations, SI 2024/462 (the Funding and Investment Strategy Regulations 2024) that the concept of ‘employer covenant’ was legislatively defined. This definition is comprised of two limbs, the first of which echoes the traditional definition mentioned above, while the second one goes further by incorporating the support derived from contingent assets. More specifically, the phrase ‘strength of the employer covenant’ has been defined as: • the financial ability of the employer, in relation to its legal obligations to the scheme, to support the scheme (referred to in this Practice Note as Limb 1), and • the expected level of support for

In addition to the circumstances of the accident, the age and maturity of a child claimant will be of relevance in a road traffic accident claim. When considering whether a child has been contributory negligent, the child’s actions should be assessed with reference to their age. This case tracker considers case law on the contributory negligence of children involved in road traffic accident claims. The cases provide useful guidance on how the courts have interpreted and applied the Law Reform (Contributory negligence) Act 1945 in road traffic accidents involving injured children. Although case law can be a guide in certain respects it is important to appreciate that each case will depend on its own facts. The actions of children are not judged by the same standard as adults: • very young children cannot be found contributory negligent—there is no fixed threshold but a child under the age of ten years old is unlikely to be found contributory negligent • the standard by which a child’s conduct is measured

Restructuring & Insolvency analysis: When assessing damages for trespass of commercial premises against a landlord, a notional deduction is required of the rent that would have been payable to the landlord. For a non-trading entity paying a rack rent, this is unlikely to result in damages being payable by a landlord in respect of commercial premises. Where there is a dispute as to the amount owing under a statutory demand, the debtor needs to show the ability to pay the lesser sum it argues is owing. Written by Andrew Mace, barrister at Tanfield Chambers.

Personal Injury analysis: What are the implications of the High Court case of AB (personal representative of the late GH) v KL on the assessment of damages for dependants? Letitia Williams, partner at Hodge Jones & Allen, comments on the case and its implications.

Commercial analysis: Giles Parsons, a solicitor at Browne Jacobson LLP, explains that although the original decision was not overturned, the ruling in Force India Formula One Team Ltd v Aerolab SRL still raises some points of interest in other areas of law.

Construction analysis: The Court of Appeal (CoA) dismissed both an appeal and cross-appeal in relation to the High Court’s calculation of damages in a case where the claimant’s mitigation actions resulted in an increased benefit to the company. The CoA applied the authorities in relation to mitigation losses and gains in a case concerning breach of fiduciary duty and professional negligence, and held that only benefits and losses flowing from a continuous course of conduct to deal with the breaches or negligence should be considered—once mitigation actions are complete, any further decisions by the injured party which incur costs or losses can not be taken into account in any damages claim. The CoA also held that the increased benefit amount must be deducted from the damages payable before applying a loss of a chance percentage. The CoA allowed a cross-appeal on a small point relating to interest.

Environmental sustainability agreements can support legitimate collaboration between competitors to reduce environmental harm, improve sustainable products or processes, develop standards, or accelerate progress towards climate objectives. The CMA recognises that competition law should not unnecessarily prevent collaboration that is needed to promote or protect environmental sustainability. However, collaboration between competitors can still infringe the Chapter I prohibition of the Competition Act 1998 (CA 1998) where it has the object or effect of restricting competition. The assessment therefore requires consideration of the nature of the agreement, whether it falls within categories unlikely to raise concerns, any restriction by object or effect, and whether the agreement qualifies for exemption under CA 98, s 9(1). This Checklist reflects the CMA Green Agreements Guidance (CMA185), read together with the CMA Horizontal Agreements Guidance (CMA184). It is intended as a practical risk-assessment tool and should not replace legal advice on a specific agreement. Where material uncertainty remains, businesses may approach the CMA under its open-door policy before implementing the arrangement. Is the arrangement within the scope of the CMA Green Agreements

There are many ways that modern slavery and human trafficking risk can manifest in supply chains. Statutory guidance on transparency in supply chains (TISC) issued by the Home Office under section 54 of the Modern Slavery Act 2015 (MSA 2015) (Home Office guidance) acknowledges that modern slavery and human trafficking is present in almost every sector. Many businesses and supply chains will be exposed to it. Put bluntly, the implication of the Home Office guidance is if you’re not finding any risks, then you’re not looking hard enough. To assess the risk of slavery in your supply chains, you must first understand the features of your business that may be particularly exposed to slavery and human trafficking occurring. These are likely to include using third-party suppliers and recruitment. There may be other factors depending on your operations. The risk to focus on is the risk to individuals of being victims of modern slavery and human trafficking, rather than the risk to your organisation. This Practice Note contains guidance on assessing the risk

Family analysis: Mr Justice Cobb considered an application to change a child’s forename where it was said that his registered name was likely to cause ridicule and adversely impact on his self-esteem because that name was traditionally considered to be a ‘female’ name. The court was unpersuaded by arguments that the child would suffer significant emotional harm due to having a name that is, currently, associated as predominantly female, not least because of the evolving social attitude to gender. However, he considered the court should intervene and add an alternative forename if the child were to be placed in the care of the paternal family because the use of the mother’s chosen forename for him would likely result in family conflict, from which he should be protected as far as possible. Chris Stevenson, barrister at 4PB, examines the issues.