CD: Could you provide a brief overview of recent developments in EU competition law? What trends and challenges were a feature of the past year?

Desai: A trend that will continue is the termination of competition cases, other than cartels, by the parties agreeing to make commitments and so changing business practices, without admitting there was a breach of competition law. Four cases last year ended with commitments. Whilst this is welcome in terms of efficiency, the challenge is the concern that a company is too early and too easily ‘bounced’ into proposing commitments before the case against it is properly established. The financial sector through two cartel cases – LIBOR and EURIBOR – paid 1.7bn in fines. The information and communication sector remains very active, with 51 competition cases of one sort or another in the pipeline in this sector. The tension between on-line and off-line sales is likely to continue, with the recent example being in relation to Most Favoured Nation clauses in the Ebooks case.

CD: Could you highlight any recent competition cases and investigations of note? What impact have they had on the business environment, and how might they resonate through 2014?

Desai: The highest total amount of fine imposed by the Commission for breaches of antitrust rules occurred, payable by eight financial institutions for benchmark-manipulation – LIBOR and EURIBOR. The fine, together with the ongoing investigations by the Commission into the credit default swaps market and the concerns it has regarding price benchmark manipulation in the foreign exchange market, shows the increased scrutiny of the financial sector by the Commission. A dawn raid at the offices of Shell, BP and Statoil in May 2013 concerning oil price benchmarking suggests the Commission has an interest in this subject as it affects commodities more generally.

Apr-Jun 2014 issue

Mayer Brown