Competition and antitrust law is of course an integral part of the business world, ensuring fair competition between competitors and guarding against one company dominating the market, and therefore limiting the choice and variety that the market is offered.
Talking about the latest competition discussions and challenges in the EU markets, about his own work in this field, and on how IP rules may in turn soon affect antitrust matters, is Howard Cartlidge, Partner & Head of EU/Competition at the London office of DWF LLP, a UK law firm.
Howard is a commercial lawyer specialising in EU and UK competition/antitrust law and regulation with a particular focus on competition and regulatory disputes and investigations. He acts for clients across a wide range of industries, particularly regulated sectors and businesses reliant on intellectual property rights.
What are currently the biggest discussion points on EU competition law?
The European Commission under Competition Commissioner Margrethe Vestager remains very active. Four areas are of particular interest:
- Damages Directive: this aims to promote damages actions by victims of breaches of EU competition rules and must be implemented in all Member States by the end of 2016.
- Ecommerce Sector Inquiry: as part of the broader Digital Single Market initiative, this inquiry is looking at measures to limit businesses' ability to control how and where their products are sold online – an issue of particular importance in the audio-visual sector, where rights holders traditionally limit exploitation of content on a territorial basis.
- Tax: a controversial area of enforcement is State aid and taxation, where the Commission has already ordered Apple to "repay" €13 billion of alleged tax benefits. Cases in the pipeline could affect other multinationals such as Starbucks and Amazon.
- Brexit: finally, the UK's vote to leave the EU will require the UK to extract itself from the EU system and may affect EU competition policy, where the UK has traditionally resisted inclusion of political or social factors in decision-making.
What does most of your competition work revolve around and who are commonly your clients?
Much of my work involves assisting businesses involved in investigations by the competition authorities. Litigation is another major area and increasingly it is both the first recourse for victims of anti-competitive activity – preferred to the slowness and unpredictability of filing a complaint with an authority – and an inevitable response to an authority's infringement decision, where "follow-on" damages claims are becoming the norm.
How have you seen antitrust litigation evolve throughout the EU over the past decade?
Antitrust litigation has grown enormously in volume – 10 years ago it was still relatively uncommon to sue for breach of competition law, whereas today it is routine, even if many detailed legal issues remain in contention. Although Germany and The Netherlands have seen significant cases, the UK has been the pre-eminent venue for competition actions. Whether that can survive Brexit is one of the many unanswered questions.
What do you believe to have been the biggest turning point in that time?
I don't think there has been one turning point in the UK, with its steady and growing stream of cases. However, the Damages Directive will be a minor revolution for many national jurisdictions within the EU, most notably by introducing limited obligations to disclose documents relevant to the case. Whilst standard in the UK, this is wholly new for many civil law jurisdictions and it will be fascinating to see how courts cope with it.
What would you say are the further steps to be taken in terms of legislative development?
Damages Directive aside, I would expect some slowdown in EU legislative developments on antitrust. However, antitrust law could be significantly impacted by changes to EU intellectual property rules as part of the Digital Single Market initiative, as the Commission seeks to promote cross-border trade.
What are the key points to consider in terms of competition law when it comes to commercial agreements and IP licences?
As with any agreement, context is crucial – what markets are affected by the agreement or licence and what is the position of the parties in those markets? In addition, clauses that seek to fix the prices that customers or licensees charge for their products are always problematic. Another EU–sensitive topic is any attempt to divide up EU markets by territory.
As a thought leader, are there any issues you are currently lobbying on?
As a competition specialist, I tend to confine my own lobbying efforts to arguing for clarity and utility on competition legislation and guidelines. However, a wide range of government legislative initiatives can impact the competitiveness of particular industry sectors, and a competition lawyer's skillset can often be useful in formulating clients' arguments to government.
Beginning a new position at DWF, what are your goals for the antitrust & competition practice?
I am looking forward to working with the great team DWF already has in the UK and in Brussels to grow our practice. My own particular focuses are on contentious competition law and the technology and communications sectors, where I think we have enormous potential to grow. The firm is also becoming increasingly international, with our German and Irish businesses being particularly interesting for the competition practice.
