Practice area focus: Competition

What’s it all about?

Compliance with competition law and related industry regulatory regimes is an undeniable part of the modern commercial landscape.

Competition lawyers’ main areas of work include:

• advising on merger control and obtaining clearances at both EU and national levels;
• advising on cartels and other anti-competitive agreements;
• advising on the abuse of dominance;
• litigation revolving around competition related disputes;
• in some competition teams, such as Olswang’s, advising bidders and purchasers on domestic and European public procurement rules;
• advice on state aid and general EU law issues; and
• regulatory advice.

What’s the working culture like in a Competition team?

Lawyers working in a competition team have a genuine passion and interest in the areas of law listed above, and in really understanding how businesses work.  Competition lawyers in our firm deal with a wide range of issues and work alongside lawyers from a number of other departments across the firm. As a result, the working culture in a competition department is incredibly diverse especially from the trainee’s vantage point. One day you may be researching case law to assist with market definition as establishing the market for the client’s product or service is very important in competition law and the next you may be managing documentary evidence relating to a cartel investigation; and on another day you may be attending court.

What’s the typical makeup of a competition lawyer’s client base?

There is no typical makeup of a competition lawyer’s client base. Olswang’s Competition team has standalone competition clients as well as clients referred to the team by other departments in the firm including the corporate, litigation, intellectual property and media, communications and technology teams. Such a broad range of clients means that life is never dull in the competition department; the client base ensures that you are exposed to a number of industries including incredibly interesting developing industries such as life sciences and technology focused industries.

What other practice areas do you work closely with?

Competition lawyers work very closely with departments from across the firm. The firm prides itself on a ‘full-service approach’ for its clients.  Being part of the competition team, you are able to see this approach in practice. The inter-relationship between the firm’s departments ensures that all of the client’s legal needs are addressed and combined to offer practical, commercial solutions to the client.

What skills do you need to be a good competition lawyer?

In order to be a good competition lawyer you will need to be able to apply technical ‘black-letter’ law to real-life commercial situations. This application of technical competition laws requires competition lawyers to think laterally and creatively in order to understand the commercial reality of the clients’ needs. In order to achieve this, you need the ability to analyse a client’s situation before offering sensible advice on a level that the client will be able to understand i.e. to ‘de-myth’ and ‘de-jargon’ the technical applicable competition laws to provide workable and easily understandable solutions.  Top-notch communication skills are of paramount importance in order to provide quality commercial advice to the client.

As an economics-based approach to competition law has been adopted by the competition authorities, a willingness to understand economic concepts and to work closely with economists is important.

What impact has the recession had on your practice area?

Competition lawyers are in a strong position to face the recession head-on and are providing clients across the firm with ongoing competition advice. Whilst the recession has had an effect on the number of mergers and acquisitions, advice continues to be needed in relation to agreements, the conduct of dominant companies, public procurement and many other areas.

Further, the European Commission and national competition authorities and regulators continue to be proactive in investigating cartels and abuse of dominance and the Olswang Competition team is currently advising on a number of such investigations.

What prominent competition cases has your firm been involved in?

Olswang has been involved in many prominent competition cases including:

• Advising The Number (118 118) on its request to Ofcom to resolve a regulatory dispute concerning BT’s charges for a supply of directory information from BT’s OSIS database of comprehensive UK directory information. Successfully appealing the decision to the Competition Appeal Tribunal and representing the client in BT’s appeal to the Court of Appeal;
• Advising Attheraces on its challenge to the British Horseracing Board’s licensing of data – another Court of Appeal case;
• Advising a leading construction company in relation to the OFT’s bid-rigging cartel investigation;
• Advising a client in relation to a major international cartel investigation involving a number of jurisdictions; and
• Advising Royal Mail in relation to PostComm’s ongoing investigation into certain pricing practices.

What do you think is the future shape of competition law?

Despite calls from some quarters that competition law should be suspended to allow companies to weather the recession, competition law is here to stay. The interaction between EU and domestic legislation will continue in the future. Competition lawyers will also have to deal with the extra-territorial application of European competition law and policy affecting companies based outside the European Union, but whose activities may have an effect on trade in Europe.

There are a number of on-going legislative proposals from the European Commission at present, including a review of the law on online sales, for example, all of which will create interesting challenges for competition lawyers in the future.

What phrase is a competition lawyer most likely to use and what does it mean?

Often you will hear a competition lawyer utter the phrase, ‘define the market’. Essentially this involves defining the relevant geographic market and product market on which competition takes place in a particular case. This is often a crucial first step in analysing whether the agreement, conduct or merger being assessed is likely to be anti-competitive. The precise identification of the market depends on a number of factors, and it is the competition lawyer’s job firstly to work out what the applicable factors are and then to apply them to the set of facts presented to them. This can be a complex exercise. For example a pizza restaurant operating in Hull is not in competition with a café in Hampstead. However, a restaurant that has been awarded three Michelin stars in Oxfordshire may be in competition with a restaurant awarded the same accolade in Paris.

In order to form a view of the market discussions regarding potential competitors may be needed with the client, a review of precedents will be undertaken and where the market definition in relation to a particular matter is unclear, this may result in competition lawyers working alongside economists to establish the precise scope of the specific market.