Court of Appeal - abuse of a dominant position

With Attheraces v British Horseracing Board, the Court of Appeal has considered for the first time an action for abuse of a dominant position under section 18 Competition Act 1998 and article 82 EC Treaty. The lengthy and considered decision agrees with the first instance judge (blogged in January 2006) in terms of legal principles - however disagrees in respect of how pricing principles were to be applied on the facts. There is some consideration of refusal to supply and whether this was reasonable and justified on the facts - yet although para 222 notes some issues of interest to this project, the focus of the case was pricing.

The Court of Appeal found that there was no abuse of a dominant position by excessive unfair or discriminatory pricing, or by unreasonable threats to terminate existing supply arrangements.

Two strong messages of interest to our project come out: first the recognition that the conduct in question might have negative consequences, but that this did not mean it was necessarily an abuse of a dominant position - article 82 and section 18 were not about price regulation (para 217). Secondly, the decision starts with expression of concern at the ability of courts and private adversarial actions to properly deliver solutions to problems such as this - arbitration, or new fora will more flexible remedies are suggested (para 7) It will be interesting to note if this approach is further pursued in compulsory licensing questions: better to focus on Euro-Defences perhaps?