By Martin Smith
Publisher: Butterworths
Price: £95
The Competition Act 1998 finally became law on 1 March, 2000, aligning UK competition law with the European Commission (EC) rules, and consigning to history the long discredited Restrictive Trade Practices Acts. This momentous event seems on the surface to have been followed by a phoney war, with little other than the prolonged investigation of BSkyB and a solitary Office of Fair Trading (OFT) clearance decision to show for all the publicity efforts of the OFT and other regulators.
Competition lawyers have been busy getting to grips with the procedures for making notifications and complaints to the regulators, and dealing with ongoing investigations. Often businesses must consider EC and UK competition law, and this makes Martin Smith’s book combining both sets of procedural rules a timely and suitable marker of the new regime for competition law in the UK.
Smith’s book is based on the text of his chapters on procedure for the looseleaf Butterworths Competition Law. In pre-Competition Act days, this was a useful practical text for those embroiled in EC proceedings. For the private practitioner involved in third-party complaints, it provided a useful antidote to other equally authoritative texts that were perhaps too close to the outlook of the regulators to assist clients either on the receiving end of an investigation, or seeking to prod a reluctant regulator into taking action.
The EC sections of this book basically reproduce those of the last edition of the looseleaf (which was already up to date to March 2000), and they remain very useful.
A particularly strong feature is Smith’s addition to his thorough and clearly written analysis of the relevant law of practical guidance on issues such as ‘To Notify or Not to Notify?’, and ‘A Typical Procedure at the Hearing’. The only worry in relation to the EC sections is whether these will be updated as regularly as a looseleaf.
However, it is the UK sections that will be most keenly read, as guidance on procedures in this new area is sorely lacking.
Here the text is slightly disappointing, suffering, like so many books published on a new act, from a wealth of ambiguities and unanswered questions, and a paucity of guidance and actual court cases. Moreover, the law is stated as at 1 August, 2000, less than six months after the Competition Act came into force.
The formal exposition of the law relating to procedures under the new Act is as clear and effective as for the EC section, but some of the force of Smith’s practical guidance has been lost – experience is inevitably less after five months of EC proceedings. By way of comparison, Mr Smith offers very helpful guidance on ‘practical considerations’ for businesses facing a dawn raid by the EC, but does little more than recite the relevant statutory powers in the equivalent UK section. Look up ‘costs’ in the index, and you are referred only to costs in proceedings in European courts – no reference to the power of the UK Competition Commission Appeals Tribunal to make costs orders (and this merits only a passing mention in the text itself).
A further quibble is that the potential application to competition proceedings in the UK of the Human Rights Act (HRA) 1998 is referred to only in passing. Admittedly, the HRA came into force only in October, but it is an area where Smith’s clear analysis would have been welcome.
This book is a ‘must have’ for practising competition lawyers, but one imagines that the second edition will benefit greatly on the UK side from more practical experience of how the UK regime is operating in practice.
Howard Cartlidge is a partner & head of competition group at Olswang.
