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- Preliminary Material
- Dedication
- Preface
- Contents
- Table of Cases
- Table of Legislation
- Table of Statutory Instruments, Rules, and Practice Directions
- Table of Treaties and Conventions
- Table of Rules of Arbitration and Articles of the Uncitral Model Law
- List of Abbreviations
- Epigraph
- Main Text
- Part I Concurrent Enforcement of Competition Law
- 1 Concurrent Enforcement of Competition Law
- 2 Administrative Proceedings
- Preliminary Material
- A Introduction
- B Proceedings Brought by the Commission
- (1) The European Commission
- (2) Commencement of Commission investigations
- (3) Sector inquiries
- (4) Guidance letters
- (5) Complaints
- (6) The investigative stage
- (7) The formal proceedings
- (8) Decisions of the Commission
- (9) Judicial review of Commission decisions
- C Proceedings Brought by the CMA
- (1) The CMA and the sector regulators
- (2) Market studies and market references
- (3) Proceedings for enforcement of Article 101, Article 102, the Chapter I prohibition, or the Chapter II prohibition
- (a) The legal framework: EU law constraints and national procedural autonomy
- (b) Powers of investigation
- (i) The threshold for starting a formal investigation
- (ii) Requests for information
- (iii) Power to ask questions
- (iv) Power to enter business premises without a warrant
- (v) Power to enter business premises with a warrant
- (vi) Power to enter domestic premises with a warrant
- (vii) Privilege against self-incrimination
- (viii) Legal professional privilege
- (ix) Proportionality
- (4) Decisions following an investigation
- (5) The CAT
- D Proceedings by Other EU National Competition Authorities
- E Administrative Investigations in the United States
- 3 Civil Proceedings
- Preliminary Material
- A Introduction
- B Civil Proceedings in England and Wales
- C Directors’ Disqualification Proceedings in England and Wales
- D References to the Court of Justice for Preliminary Rulings
- E Civil Proceedings in the United States
- 4 Criminal Proceedings
- Preliminary Material
- A Introduction
- B Criminalization in the EU and Global Context
- C The Policy behind Criminalization in the United Kingdom
- D The UK Cartel Offence
- E The Investigation
- F Prosecution, Trial, and Appeals
- G Interaction with EU Competition Law
- H Extradition
- I Enforcement History
- J Criminal Enforcement in the United States
- 5 Fundamental Rights and General Principles
- Preliminary Material
- A Introduction
- B Fundamental Rights
- C The ‘Criminal’ Nature of Competition Proceedings
- D The Privilege against Self-Incrimination
- E Legal Professional Privilege
- F The Right to Effective Judicial Protection
- G Ne Bis in Idem
- (1) Sources and definition
- (2) Concurrent enforcement of competition law and the risk of multiple prosecutions and convictions for the same offence
- (3) Avoiding the risk of multiple prosecutions and convictions as a matter of administrative discretion
- (4) Foundations of the ne bis in idem principle
- (5) Ne bis in idem as a limit to parallel proceedings
- (a) Definition of the same offence
- (b) Fragmentation of the same offence
- (c) The nature of the decision giving rise to a preclusion of further prosecution or punishment
- (d) Setting aside of an acquittal or conviction on procedural grounds
- (e) Relationship between EU and national law enforcement within the EU
- (f) Relationship between proceedings within and outside the EU
- H Procedural Autonomy of Member States under EU Law
- Part II The Interplay Between Administrative, Civil, and Criminal Proceedings
- 6 Admissibility and Effect of Decisions in Other Proceedings
- Preliminary Material
- A Introduction
- B Effect of Commission Decisions
- C Binding Effect of CMA Decisions
- D Probative Value of Decisions of National Competition Authorities under Article 9(2) of the Directive on Damages Actions
- (1) The concept of prima facie evidence
- (2) Possible enhanced effect of decisions by national competition authorities of other Member States
- (3) The scope of the probative value of a national competition authority decision under Article 9(2) of the Directive on damages actions
- (4) Possible extended scope of the probative value of a national competition authority decision under Article 9(2) of the Directive on damages actions
- E Effect of Administrative Decisions in Criminal Proceedings
- F Admissibility and Effect of Civil Judgments and Criminal Convictions
- (1) Admissibility and effect of civil judgments in administrative proceedings
- (2) Admissibility and effect of civil judgments in criminal proceedings
- (3) Admissibility and effect of criminal convictions in administrative proceedings
- (4) Admissibility and effect of criminal convictions in civil proceedings
- 7 Disclosure and Admissibility of Evidence
- Preliminary Material
- A Introduction
- B Use of Information Obtained by the Commission in Further Administrative Proceedings
- (1) Use in further Commission proceedings
- (2) Use in national administrative proceedings
- (a) General rule on the exchange of information between the Commission and national competition authorities
- (b) Use of information shared between the Commission and national competition authorities other than ‘in evidence’
- (c) Exceptions to the sharing of information between the Commission and national competition authorities
- (d) Protection of leniency applicants in the context of the exchange of information between the Commission and national competition authorities
- C Use of Information Obtained by the CMA in Further Administrative Proceedings
- D Use of Information Obtained by the Commission (or National Competition Authorities of Other Member States) in Criminal Proceedings
- E Use of Information Obtained by the CMA in Administrative Proceedings in Criminal Proceedings
- F Use of Information Obtained by the Commission in Civil Proceedings
- G Use of Information Obtained by the CMA in Civil Proceedings
- H Disclosure in English Law
- (1) Disclosure under English law
- (2) Exceptions to the duty to give disclosure: Legal professional privilege
- (3) Exceptions to the duty to give disclosure: Public interest immunity
- (4) Exceptions to the duty to give disclosure: Privilege against self-incrimination
- (5) Protection of confidentiality at the disclosure stage
- (6) Confidential treatment of parts of Commission decisions not amenable to judicial review by the EU Courts
- (7) Disclosure prohibited by a foreign statute
- (8) English disclosure rules and the EU Regulation on the taking of evidence
- I Use in Administrative or Criminal Proceedings of Evidence Disclosed or Used in Civil Proceedings
- 8 Case Management and Stays
- Preliminary Material
- A Introduction
- B Clash of Jurisdictions (or Potential Wrongful Assumption of Jurisdiction)
- C Civil and Administrative Proceedings
- (1) The framework under Regulation 1/2003
- (2) The case law of the Court of Justice: Discretion to stay
- (3) The interpretation of the Commission in the 2004 Commission Notice on cooperation with national courts
- (4) The approach of the English courts
- (a) Sincere cooperation and procedural autonomy
- (b) Prospective Commission proceedings
- (c) Parallel Commission proceedings
- (d) Pending appeal against a Commission decision
- (e) Stay of related actions and multi-party issues
- (f) The position in the CAT
- (g) Stays and interim measures
- (h) Coordination of civil proceedings and CMA proceedings
- (i) Circumstances in which a stay would not normally be granted
- D Criminal and Civil Proceedings
- E Criminal and Administrative Proceedings
- 6 Admissibility and Effect of Decisions in Other Proceedings
- Part III International Commercial Arbitration and ADR
- 9 Arbitration and ADR
- Preliminary Material
- A Introduction
- B Arbitration and Competition Law Disputes
- C Interaction between Arbitration and Public Enforcement
- (1) The analytical framework
- (2) Effect of administrative decisions
- (3) Cooperation and evidence
- (a) Request by competition authorities of evidence produced in the arbitration
- (b) Cooperation between arbitral tribunals and competition authorities
- (c) Admissibility of evidence obtained by a competition authority
- (d) Order for production of documents submitted to a competition authority
- (e) Testimony of officials of the competition authority
- (4) Stays
- (5) Arbitration and criminal proceedings
- D ADR and Competition Disputes
- 9.112
- 9.113
- 9.114
- (1) Mediation of EU and US competition disputes
- (2) Mediation and national courts
- (3) Mediation and national competition authorities
- (4) Enforceability of a mediation agreement
- (5) Validity of the settlement agreement
- (6) Use of mediation evidence in civil proceedings
- (7) Use of mediation evidence in administrative proceedings
- 9 Arbitration and ADR
- Part I Concurrent Enforcement of Competition Law
- Further Material
