ICLG The International Comparative Legal Guide to: Vertical Agreements and Dominant Firms 2017 1st Edition A practical cross-border insight into vertical agreements and dominant firms Published by Global Legal Group, in association with CDR, with contributions from: ALRUD Law Firm KK Sharma Law Offices Blake, Cassels & Graydon LLP Lee & Lee Cliffe Dekker Hofmeyr Inc Marval, O’Farrell & Mairal Darrois Villey Maillot Brochier A.A.R.P.I. Nagashima Ohno & Tsunematsu DDPV Studio Legale Noerr LLP Debarliev, Dameski & Kelesoska, Paul, Weiss, Rifkind, Wharton & Attorneys at Law Garrison LLP Dickson Minto Pinheiro Neto Advogados ELIG, Attorneys-At-Law SRS Advogados Fourgoux-Djavadi&Associés Tian Yuan Law Firm Johnson Winter & Slattery The International Comparative Legal Guide to: Vertical Agreements and Dominant Firms 2017 Country Question and Answer Chapters: 1 Argentina Marval, O’Farrell & Mairal: Miguel del Pino & Santiago del Rio 1 Contributing Editor 2 Australia Johnson Winter & Slattery: Sar Katdare & Maggie Hung 7 Charles F. (Rick) Rule, Paul, Weiss, Rifkind, Wharton & Garrison LLP 3 Brazil Pinheiro Neto Advogados: Leonardo Rocha e Silva & Sales Director Daniel Costa Rebello 14 Florjan Osmani Account Director Oliver Smith 4 Canada Blake, Cassels & Graydon LLP: Randall Hofley & Evangelia Litsa Kriaris 21 Sales Support Manager Paul Mochalski 5 China Tian Yuan Law Firm: Wei Huang & Fan Zhu 28 Senior Editors Suzie Levy, Rachel Williams 6 European Union Fourgoux-Djavadi&Associés: Jean-Louis Fourgoux & Leyla Djavadi 35 Chief Operating Officer Dror Levy Group Consulting Editor 7 France Darrois Villey Maillot Brochier A.A.R.P.I.: Didier Théophile Alan Falach & Guillaume Aubron 41 Publisher Rory Smith 8 Germany Noerr LLP: Peter Stauber & Robert Pahlen 49 Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK 9 India KK Sharma Law Offices: K K Sharma 60 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] 10 Italy DDPV Studio Legale: Luciano Vasques 68 URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design 11 Japan Nagashima Ohno & Tsunematsu: Kaoru Hattori & Yusuke Kaeriyama 76 GLG Cover Image Source iStockphoto 12 Macedonia Debarliev, Dameski & Kelesoska, Attorneys at Law: Printed by Jasmina Ilieva Jovanovik & Dragan Dameski 84 Stephens & George Print Group June 2017 13 Portugal SRS Advogados: Gonçalo Anastácio & Luís Seifert Guincho 92 Copyright © 2017 Global Legal Group Ltd. All rights reserved 14 Russia ALRUD Law Firm: German Zakharov & Alla Azmukhanova 99 No photocopying ISBN 978-1-911367-57-4 ISSN 2399-9586 15 Singapore Lee & Lee: Tan Tee Jim, S.C. 106 Strategic Partners 16 South Africa Cliffe Dekker Hofmeyr Inc: Andries le Grange & Albert Aukema 111 17 Turkey ELIG, Attorneys-At-Law: Gönenç Gürkaynak & M. Hakan Özgökçen 118 18 United Kingdom Dickson Minto: Ajal Notowicz & Maria Ziprani 125 PEFC Certified This product is 19 USA Paul, Weiss, Rifkind, Wharton & Garrison LLP: Charles F. (Rick) Rule & from sustainably managed forests and Andrew J. Forman 137 controlled sources PEFC/16-33-254 www.pefc.org Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 18 United Kingdom Ajal Notowicz Dickson Minto Maria Ziprani on the nature of the premises, a warrant from a judge may first be 1 General required. 1.1 What authorities or agencies investigate and enforce 1.3 Describe the steps in the process from the opening of the laws governing vertical agreements and dominant an investigation to its resolution. firm conduct? A typical CMA investigation into an alleged infringement of the The main competition authority in the UK is the Competition and rules regarding vertical agreements (in practice, most likely resale Markets Authority (“CMA”). The CMA came into existence on price maintenance (“RPM”)) or abuse of dominance consists of the 1 April 2014, and is the successor to the Office of Fair Trading following key steps: (“OFT”) and Competition Commission (“CC”). 1. Prior to opening a formal investigation, the CMA will gather In addition, the following sectoral regulators have concurrent powers and consider information on an informal basis, which will to enforce competition law (including regarding vertical agreements inform the application of its published prioritisation principles and abuse of dominance): Civil Aviation Authority (“CAA”); Financial in deciding whether or not to open an investigation. Conduct Authority (“FCA”); Gas and Electricity Markets Authority 2. If there is a reasonable suspicion of an infringement and the (“Ofgem”); Northern Ireland Authority for Utility Regulation case falls within the CMA’s casework priorities, the CMA (“NIAUR”); Office of Communications (“Ofcom”); Office of Rail and will open a formal investigation. Road (“ORR”); Payment Systems Regulator (“PSR”); Water Services 3. The CMA will then be able to use its formal information Regulation Authority (“Ofwat”); and NHS Improvement (Monitor). In gathering powers, such as issuing information requests, the remainder of this contribution, any mention of the CMA’s powers searching premises and conducting interviews. should be read as including powers which may be exercised by these 4. If the CMA has sufficient evidence of an infringement, it will sectoral regulators, unless stated otherwise. issue a Statement of Objections, and give the parties access to The UK’s substantive competition law provisions (outside the the file and the opportunity to make representations. merger control and market investigations sphere) are enshrined in 5. The CMA will close its investigation by either: Chapters I and II of the Competition Act 1998 (“CA98”) and are ■ deciding that there are no grounds for action; closely based on the corresponding provisions of the Treaty on the ■ issuing an infringement decision which includes certain Functioning of the European Union (“TFEU”), Articles 101 and actions (such as penalties and/or an order to bring the 102, respectively. Where a UK court, the CMA or any of the above- infringement to an end); or mentioned sectoral regulators apply the Chapter I and/or Chapter ■ accepting binding commitments (see question 1.6 II provisions, they must also apply the equivalent EU provisions, below for more information regarding the commitments provided the conduct in question may affect trade between EU process). Member States. The future application of EU law in the UK is uncertain, as a result 1.4 What remedies (e.g., fines, damages, injunctions, etc.) of the UK’s stated intention to leave the EU, commonly known as are available to enforcers? “Brexit”. In this regard, see further question 1.13 below. The CMA has the following main remedies and sanctions options 1.2 What investigative powers do the responsible at its disposal: competition authorities have? ■ Impose penalties of up to 10% of the company’s worldwide group turnover. The CMA has the power to open an investigation if it has “reasonable ■ Give directions to bring an infringement to an end. grounds for suspecting” that there has been a breach of competition ■ Order the disqualification of an individual from holding law. company directorships where that individual has been a The CMA has the power to request information from companies director of a company which has breached competition law. and natural persons, as well as to enter and search business and ■ Impose interim measures where it has begun an investigation, domestic premises for documents and other materials relevant to the and it considers it necessary to take action as a matter of investigation (more colloquially known as dawn raids). Depending urgency to prevent serious irreparable damage or to protect the public interest. ICLG TO: VERTICAL AGREEMENTS AND DOMINANT FIRMS 2017 WWW.ICLG.COM 125 © Published and reproduced with kind permission by Global Legal Group Ltd, London Dickson Minto United Kingdom It should also be noted that an agreement (or a clause from the competition law in exchange for a penalty discount of up to agreement – see question 2.3 below regarding severability) which 20%. The CMA’s administrative process in settlement cases is infringes competition law will be unenforceable. Whilst in cartel more streamlined than in non-settlement cases, thus resulting cases, criminal sanctions may be imposed on individuals, such in efficiencies for the CMA and also the parties. The CMA has sanctions are not available in the event of an infringement of the discretion in determining which cases to settle. For example, in the rules on vertical agreements and abuse of dominance. Finally, the two RPM cases which the CMA concluded in 2016 (Commercial courts may award damages, grant an injunction (such as an order to Refrigerators and Bathroom Fittings), the parties were granted a cease certain conduct) or make a declaration (such as a confirmation 20% settlement discount on account of their admissions. that an exclusivity clause in a vertical agreement is unenforceable). 1.7 Does the enforcer have to defend its claims in front 1.5 How are those remedies determined and/or of a legal tribunal or in other judicial proceedings? If calculated? so, what is the legal standard that applies to justify an United Kingdom enforcement action? The OFT’s Guidance as to the appropriate amount of penalty (which was adopted by the CMA when it came into existence in Unless a decision is appealed (see question 1.8 below), the CMA does 2004) sets out a six-step approach. The main factors taken into not need to substantiate or defend its case in judicial proceedings.