Prohibited Behaviour in UK Law

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court.

It seems to me to be arguable that where two corporate entities are part of an "udertaking" (call it "Undertaking A") and one of those entities has entered into an infringing agreement with other, independent, "undertakings", then if another corporate entity which is part of Undertaking A then implements that infringing agreement, it is also infringing Article 81.

Moreover, it is important that competition claims are pleaded properly. To contend that a party has infringed competition law involves a serious allegation of breach of a quasi-public law, which can indeed lead to the imposition of financial penalties as well as civil liability. A defendant faced with such a claim is entitled to know what specific conduct or agreement is complained of and how that is alleged to violate the law.

The Dow Defendants also relied upon Article 5(3) of the Judgments Regulation to establish jurisdiction. In view of my decision on Article 6(1) it is strictly unnecessary to lengthen this judgment yet further with a discussion of all the arguments. I will simply express my conclusions as shortly as possible. However, it is also common ground that if jurisdiction is established on that basis it is only established in respect of the damage which occurred in England.

In our judgment it was inappropriate for the judge to adopt the approach that he should receive such evidence and hear such submissions, as the effect of the judge second-guessing the Commission and concluding that the Commission was wrong has been to create an irreconcilable inconsistency in the application of the Community's competition policy to the relevant market. We do not say that the Commission is infallible; far from it.

I would reject Mr Turner's overarching submission as to the need for any finding of abuse to be based on a benchmark. It is true that benchmarks of a kind have been applied in certain pricing contexts, such as in drawing a dividing line between competitive low pricing and abusive predatory pricing, and that according to para 21 of its guidance document the Commission's own approach to assessing anti-competitive foreclosure is usually to make a comparison with an appropriate counterfactual.

These are notoriously burdensome allegations, frequently leading to extensive evidence, including expert reports from economists and accountants. The recent history of cases in which such allegations have been raised illustrate that they can lead to lengthy and expensive trials. Before a party has to respond to an allegation like this, it is incumbent on the party making the allegation to set out clearly and succinctly the major facts upon which it will rely.