An Argument in Favour of the Passing-on Defence – a Response to Private Actions in Competition Law: A Consultation on Options for Reform, Dr Peter Whelan
Currently there is uncertainty regarding the existence or otherwise of the passing-on defence under English law. This operates as an obstacle to the initiation of private competition enforcement actions in the English courts. Before deciding how to rectify this uncertainty, one must first decide whether or not the passing-on defence should be recognised under English law. This article engages with that particular debate by constructing an argument in favour of the recognition of the passing-on defence. It doing so, it argues that acknowledging the existence of the passing-on defence in the context of private competition law enforcement would ensure consistency with: (a) the objectives of private competition law enforcement; (b) the principle of ne bis in idem; and (c) dicta from the courts of England and Wales.
The Reform of the UK Competition Regime: What can be Learnt from France?, Marie Leppard
At the dawn of the institutional merger of the UK competition law authorities, this article looks across the Channel to consider the French experience of transitioning from a two-tiered system in 2008 to a single competition regulator known as the Autorité de la Concurrence. Although the French competition regime differs, both in terms of substantive law and procedure, in its attitude towards assessment, intervention, and means of enforcement, the unified French administrative structure has enabled the state to actively pursue investigations with comparatively greater frequency than its British counterpart. In the UK, practitioners and the general public alike are currently fearful that the proposed merging of the OFT and CC will potentially raise challenges to fundamental rule of law principles. However, this preliminary comparative analysis reveals that it is, indeed, possible to maintain separation of decision making powers while also securing adequate recourse to appeal within the structure of a single competition regulator.
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