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step1:parallel.trans  >> step2:research >>  step3:id.priorengFORMS.TBS  >>  [step4:nrlas :  >> >> ]  >> CHOICE:  step5.court.RLAS      or     step6.settlem.RLAS

apply to our case THE ‘FOR TECHNIQUE’ : https://cocoo.uk/finco-groupfinancing-is-sa/     The ‘FOR technique’ involves determining if the measures adopted in a particular case, fall within a country’s general or particualr legal framework system, or diverge from them

there are two types of makers of ‘decisions, omissions, conducts or acts’ (DOCAS) :

docas-maker 1: government, regulators and the cma:

they have a ‘monopoly of discretion’ to decide on questions of fact (QOF)…even DOCAS based on incomplete or incorrect political statements, or even docas suffering from errors of judgment (EOJ), may not be subjected to judicial review (JR), UNLESS THERE IS A QOL ERROR (see below) .

JR may not even be used to ask a court to propose new or alternative QOFs >> CoCoo’s mission is to JR the DOCAS (of gov, regulators and cma). thus, CoCoo must , to every single fact, apply different possible interpretations, so that we may propose new, alternative QOFs, and, this way, attempt to fit into the single exception to this monopoly ( enjoyed by gov, regulators and cma) and win a JR. This single monopoly exception (an exception to the (gov,regulator,cma)’s discretionary power is justified on lack of democratic legitimacy to reach a particular DOCAS in a way that gives ‘factual immunity’ to the decision maker (gov, regulators or cma) against any possible political responsibility. ONLY if this is the case, JR wins over this monopoly of discretion, so that such DOCAS is declared void on the basis that it was reached ULTRAVIRES ( overstepping the boundaries of the democratic legitimacy that justified the ‘monopoly of discretion’).

docas-maker 2:  JR (JUDICIAL REVIEW ) (BY CAT, HIGH COURT AND THE COMMERCIAL COURT)

JR courts have a ‘monopoly of discretion’ to decide on:

A/- questions of law (QOL), and

B/- QOFs (via JR).

the JR standard of proof is not based ‘on merit’, but only on QOL ERRORS: JR may only void a DOCAS by (gov, regulator, cma), if such docas is vitiated by either of these 5 QOL ERRORS:

1. QOL ERROR 1: where docas fail to identify the POLICY PREFERENCES used to reach such docas. here, the gov/reg/cma fail their duty to disclose the grounds used in the BALANCING ACT (BA). example: if the docas emerged from a BA between unlawful options.

2. QOL ERROR 2: where docas fail to treat all submitted information (REPORTS, OBSERVATIONS, CONSULTATIONS) with EQUAL RESPECT…..this usually happens where there is lobbying involved, and in exchange for lobbying donations, the lobbying information is given more weight in reaching the docas…this is UNDUE INFLUENCE

3. QOL ERROR 3: where docas fail to BA between: the impact of the proposed docas, and ALL OTHER POSSIBLE ALTERNATIVE OPTIONS AND PROCEDURES:

  • -example: JR voided a docas that created a Partnership Procurement process (PPP) project, because the docas failed to consider, as an option, not building the bridge (that was the basis of the PPP).
  • -example: where not all possible options and procedures were considered during the BA from which the docas was reached.
  • – example: docas reached from a BA where all options were unlawful

4. QOL ERROR 4: where docas lacks both sufficient motivation and sufficient reasoning…..for instance, because of insufficient public consultation. this would also be a case of undue influence vitiating the docas. docas fails where it fails to reflect political support. this is called ‘wednesbury unreasonableness’.

UK CONTACTS.post     CONTACT ANY PUS (gov.uk)      FOIA REPLIES SEARCH

LIST OF UK TRADE AGREEMENTS  (ITAS)        DATA.GOV.UK NEWS & COMMUNICATIONS              GOV.UK SEARCH >> BUSINESS & INDUSTRY

  WORLD.MARKETS.search = WORLD INDUSTRIES/SECTORS/MARKETS SEARCH (WITH A VIEW TO EXPORT FROM UK)                     SEARCH UK PUS POLICY PAPERS , CONSULTATIONS     

SEARCH UK PUS POL.PAPERS, CONSULTATIONS    

  1. CMA:   REPORT uk internal market ISSUE [TO THE OIM (online form)]
  2. CMA: REPORT ISSUE TO THE SAU: SAU@cma.gov.uk
  3. Cma report all other cases

cma (search cases and projects)

                                       = the uk.compet.list is a specialist uk court that deals with claims brought under Article 101 and Article 102 of the Treaty on the Functioning of the European Union and the Competition Act 1988                                               

PARLM.PETITIONS.post

PARLIAMENT YOUTUBE CHANNEL  >> TRANSCRIPT GENERATOR

HOUSE OF LORDS YOUTUBE CHANNEL   >> TRANSCRIPT GENERATOR

          

https://crowncommercialservice.bravosolution.co.uk/esop/guest/home.do?_ncp=1744029937694.69490-1

Nightwish12@@@

http://ccs-agreements.cabinetoffice.gov.uk/procurement-pipeline for updates and monitor

Find a Tender:  for the publication of the OJEU contract notice.

     

 UK FINANCE & SUPPORT FOR COCOO LTD  : SEARCH BY INDUSTRY TO SEE IF ANY OF THE GRANTS, FINANCE AND SUPPORT GRANTED BY THE UK TO COMPANIES, COULD BE ILLEGAL STATE AID

 LINKEDIN.BUSINESS.premim >> on 5 april, i cancel it, and apply for linkedin.sales.navigator

     

********STEP 6: settlem.RLAS****>> settlement = no wpis. no precedent.setting

NRLA.AGENCY.USP.post           ciARB.member.search(usa.mex)               ciAB.europe.member.search

A/usp.2.PUS:   

Even if public bodies are not  “clients” in the private sector sense, I can only offer RLA to cocoo, nobody else…..only if i become sole practitioner i could approach pus and pris orgs to offer RLA.      but, as inhouse, cocoo may only submit NRLA.USPs to PUS. NO PRIOR ENGAGEMENT NEEDED but   i cannot legally compel pus to accept my usp, unless wins a tender. To increase the likelihood of your proposal being considered, ensure it offers unique value or solutions not readily available in the market and aligns with the public sector’s objectives of value for money and social value…..the Public Services (Social Value) Act 2012 requires public authorities to consider the economic, social, and environmental well-being of their area when procuring services. This means that proposals demonstrating significant social value could be more attractive to public sector bodies.

B/nrla.usp.2.PRIS (individuals or companies). PRIOR ENGAGEMENT NEEDED.

offering COCOO’s membership, mediation, or opinion services are likely to be considered unethical >> AVOID sra issues, BY USE OF   =  In UK, mediation services are not classified as “reserved legal activities” under the Legal Services Act 2007. Consequently, organizations like COCOO Ltd. can offer mediation services to parties involved in ongoing arbitration and court cases without the need for registration with a professional body. Also, COCOO Ltd. can provide neutral legal opinions to parties without requiring specific authorization or registration. However, it’s essential to ensure that these services do not encroach upon reserved activities, such as conducting litigation or exercising rights of audience. also, make sure there is no direct solicitation …becos i am the inhousSol, and would be seen as unethical by sra) >> to PRIS companies, I can instead of offering mediation.opinion.strat services, i should offer it indirectly, via legal.strategic training offers. direct solicitation is however, allowed to PUS organisations (as they r not regarded as ‘clients’), so cocoo may directly offer them mediation.opinion.strat services, and membership…….is direct solicitation of membership to companies involved in litigation, or to offer the cocoo’s membership to victims  , considered unethical by the SRA ?. or only the direct solicitation of mediation or opinion or strategic services, is regarded by SRA as unethical?  What is the cocoo’s marketing team does the drafting and sending of the cocoo’s services ?

COCOO Ltd. can:

  • Offer mediation services to parties in ongoing arbitration and court cases without mandatory registration with a professional body.

  • Provide non-reserved legal neutral opinions to parties, ensuring that these services remain within the scope of non-reserved legal activities.

While not obligatory, affiliating with professional bodies like the CMC can enhance the organization’s reputation and provide clients with added assurance of service quality.

cocoo’s USP seeking instructions , as agent, to provide NRLA, including mediation services, and representation to parties in ongoing arbitration cases, or court cases, or in eu’s odr…..  to  companies that are victims of other companies or cmas.decis etc….providing legal advice is not classified as a reserved legal activity. This means that entities like Cocoo Ltd., even if not structured as a traditional law firm or solicitor organization, can offer legal advice without breaching regulatory constraints.  Therefore, Cocoo Ltd. can represent companies that are victims of competition law violations, acting as an agent, as long as such representation is limited to non-reserved legal activities, such as providing legal advice. However, it’s crucial to ensure that the representation does not extend into reserved activities, such as conducting litigation

EU.ONLINE.DISPUTE.RESOLUTION.PLATFORM   >> SEARCH: >> Use the ODR platform to Contact the trader to resolve the dispute directly (about a good or service you bought online). You have 90 days to reach an agreement. or Get a dispute resolution body to solve your dispute for you. You have 30 days to agree with the trader on a dispute resolution body to use. You can only use the ODR platform if: You live in an EU country or in Norway, Iceland or Liechtenstein. The trader is based in an EU country or in Norway, Iceland or Liechtenstein

-3pint.arb: Arbitration is a consensual process, and the inclusion of additional parties requires the agreement of the existing parties and the arbitrator.

– arbitral awards are generally recognized and enforceable in courts (not by cjeu) : Legal Framework: In many jurisdictions, including the UK and the US, arbitration awards are enforceable under national laws and international treaties, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.   Court Enforcement: If a party fails to comply with an arbitral award voluntarily, the prevailing party can petition a court to enforce the award. Courts typically uphold arbitration awards unless there are compelling reasons to set them aside, such as evidence of procedural unfairness or violations of public

–FINRA’s services are tailored to the U.S. financial markets and may not be suitable for disputes outside this sector.

-RapidRuling AND NEW ERA: The platforms’ jurisdictional reach is not explicitly stated, so it’s advisable to contact them directly for clarification.

  • New Era ADR: (CHEAPEST) Provides a fully digital platform for mediation and arbitration with a flat fee structure, aiming to reduce costs and streamline the dispute resolution process.  neweraadr.com

  • Rapid Ruling: Offers online arbitration and mediation services designed to be safer, simpler, and more cost-effective than traditional methods. rapidruling.com     application2becomeARBITRATOR

  • FINRA’s Mediation Program: For disputes involving initial claim amounts of $100,000 or less, FINRA offers free or low-cost virtual mediation services. Participation is voluntary and provides an alternative to more costly arbitration processes. finra.org    finra.FEES4med.arb

aaa      aaa.1    (very expensive arb.platform)

*****************STEP 5: court.RLAS***********   

United Kingdom, competition-related cases are allocated to specific courts or tribunals based on the nature and complexity of the issues involved. Here’s a breakdown with illustrative examples:

1. High Court (Chancery Division):

  • Jurisdiction: Handles complex commercial disputes, including those involving competition law, particularly where equitable remedies like injunctions are sought.

  • Example: A company alleges that a competitor has infringed upon its intellectual property rights and engaged in anti-competitive practices, seeking both damages and an injunction to prevent further violations.

2. Commercial Court (Queen’s Bench Division):

  • Jurisdiction: Specializes in complex commercial litigation, including international trade disputes and cases involving large-scale commercial transactions.

  • Example: Two multinational corporations are involved in a dispute over a joint venture agreement, with one party alleging that the other has engaged in anti-competitive conduct affecting their commercial relationship.

3. Competition Appeal Tribunal (CAT):

  • Jurisdiction: A specialized tribunal focusing exclusively on competition law matters, including appeals against decisions made by competition regulators and private actions for damages arising from anti-competitive behavior.

  • Example: A group of consumers brings a collective action against several companies accused of price-fixing in the automotive industry, seeking compensation for overcharges resulting from the cartel.

Challenging Decisions Made by Regulators:

Challenges to decisions made by competition regulators, such as the Competition and Markets Authority (CMA), are typically within the jurisdiction of the CAT. The CAT reviews these decisions and has the authority to uphold, modify, or overturn them.

A/ CAT : PAP IS NOT MANDATED IN CLP CASES…. due to concerns that notifying an infringing party of potential legal proceedings might prompt them to initiate proceedings in another jurisdiction.    CAT >> (COA:E-FILING)       allows even LIPs (ex cocoo ltd) to file claims electronically.   I CAN FILE (@ CAT), MERITS-BASED CLAIMS  (NOT LIMITED TO JR GROUNDS..but jr grounds can also be used).  The CAT has jurisdiction to hear both  focs and sacs. bop: Claimants must establish:
  1. a) A breach of competition law (in follow-on cases, this is established by the infringement decision)
    b) Actionable harm or damage caused by that breach1
  2. Quantification: The CAT applies a ‘but for’ test, adopting a counter-factual scenario to determine damages3.
  3. Broad powers: The CAT can employ various tools to quantify damages, including the “broad axe” principle when faced with uncertainty3.
  4. Full compensation: Claimants have a “right to full compensation,” covering actual loss, loss of profit, and interest

CAT COLLECTIVE CLAIMS:catcols:

CAT: OPTOUT is possible  (for consumer rights act claims)  – CAT: OPTOUT is possible  (for consumer rights act claims) .    Companies can apply for CPO and representative status …..-cocoo.ltd, as a LIP (as an org.whose members are victims) use cat efiling, to file foc.sac.tort.dam….-cocoo ltd, use the cat efiling, to apply.2.cat.4.CPO >> cat decides whether the collective action can proceed and whether Cocoo Ltd can act as the Proposed Class Representative (PCR). CPO Application Contents:   Demonstrate that it’s just and reasonable for Cocoo Ltd to be authorized as the PCR. Show that the claims are eligible for inclusion in collective proceedings. Propose whether the proceedings should be opt-in or opt-out (in this case, opt-out).apply for a costs protection order.  -As an in-house solicitor, you can file the petition for the CPO. A barrister only required for court advocacy if the case proceeds to trial.  -Pap: While engaging in pre-action correspondence with the defendant’s lawyers can be beneficial, it’s not a mandatory first step for collective proceedings in the CAT. As the in-house lawyer of Cocoo Ltd, the first steps for filing a collective, opt-out, cat.foc are:

  1. Application for a Collective Proceedings Order (CPO): This is the primary initial step. You need to apply to the CAT for a CPO, which will determine whether the collective action can proceed and whether Cocoo Ltd can act as the Proposed Class Representative (PCR)12.
  2. CPO Application Contents: Demonstrate that it’s just and reasonable for Cocoo Ltd to be authorized as the PCR.  Show that the claims are eligible for inclusion in collective proceedings.   Propose whether the proceedings should be opt-in or opt-out (in this case, opt-out)2
  3. Representation: As an in-house solicitor, you can file the petition for the CPO. A barrister is not strictly required at this stage, though their expertise may be valuable. Barristers are typically more involved in court advocacy if the case proceeds to trial6.
  4. Pre-action Protocol: While engaging in pre-action correspondence with the defendant’s lawyers can be beneficial, it’s not a mandatory first step for collective proceedings in the CAT. The CPO application can be made without prior engagement.
  5. Cost Protection: You can apply for a costs protection order as part of the CPO application process1.: The CAT will decide at a certification hearing whether to grant the CPO2.  If granted, the CAT will also determine whether the proceedings will be opt-in or opt-out2.    Be prepared to demonstrate why an opt-out procedure is more appropriate than opt-in for this case5.   Consider potential carriage disputes if there are competing applications for similar claims3.   Be aware that the CAT may revoke a CPO at any stage of the proceedings

B/ COMCO.HC.CL :      = Nightwish12@         efilesupport@justice.gov.uk    >>  MY.FILED.RLAS.SEARCH      E-FILING IS A FREE GOV.UK SERVICE FOR LIPS, FIRMS, INHOUSESOLS, INDIVIDUALS, to EXCHANGE DOCUMENTS BETWEEN THEM , AND TO file claims on uk.upper.tribunals, EXCEPT CAT.   To use the E-Filing service, you’ll need to make sure that you have all your documents and information to hand. This includes: court forms, decision letters, or orders from a court,evidence in support of a claim, such as witness statements or correspondence.  your payment details: cocoo, as a LIP, can pay fees using the company’s MONZO bus.card. maybe cocoo gets a discount:  help with fees.   use your email address as your username. Register for and use the E-Filing service

-HIGH.COURT (HC):  Efiling gives option to send PAP letters to the court….and then i also need to send them to the defendant

-COMCO:  PAP letters are typically exchanged directly between parties and are not usually filed with the court

– the Competition List: PAP letters are typically exchanged directly between parties and are not usually filed with the court

C/  ROYALMAIL.click&drop  (EX to file cjeu claims must be posted)   padic@   Nightwish12     IMPORT ORDERS FROM SPREADSHEET

D/ e-curia(is the eu ‘DX’ : only for doc.exchange for eu.Abogados. TO FILE CJEU CLAIMS must be by post.)   

MYSRA: solicitor 333300 as Sol. with LPC, im cocoo’s inhouse sol.   I can LIP. oscar allowed to act as cocoo’s inhouse sol, to represent (RLA) its client (cocoo ltd) in the litigation (filing claim etc) , but must ask for court permission to advocate at cat.hc.comco (if declined, must get Barrister)

-TL: foc.tort.clp.dam:  -CAT: 6 years from the later of: a) The day on which the infringement ceases, OR b) The claimant’s day of knowledge.   -HC: 6 years from the date the cause of action accrued..exception:In cases of “deliberate concealment” (ex.gelmato): The limitation period starts running from when the claimant discovered, or could with reasonable diligence have discovered, the relevant facts  -US.(sc) :  4 years after the cause of action accrued

****************** STEP 4: NRLAS ***********************

 >>         

              

(Ex PAP, LEGAL OPINIONS). cma.cnmc.  As an in-house solicitor, you can PAP, on behalf of COCOO Ltd.  (CPR) allow in-house solicitors to act on behalf of their employer in preaction and litigation matters.  No need for external legal representation at the preaction stage.   Best Method in the UK:  Send a formal preaction protocol letter via email and registered post. Follow UK Pre-Action Protocol rules (if relevant to the case, e.g., competition law litigation)

   >>

–   cma: Reportar un problema de competencia o de mercado: 

**********STEP 3: IDENTIFICATION >> PRIOR.ENGAGEMENT.FORMS>>   ******

>>  PRIOR.ENGAGEMENT.post  >>        

gforms.ppp       gforms.ppp.RESPONSES  

>> VICTIMS & PERPETRATORS  >> USP4locus = (free.membership +    ( in WPI or precedent.setting cases, becos Settlement/mediation is unacceptable, i can FOC ) + MEDIATION (in non-wpi or non-precedent.setting cases, Settlement/mediation is acceptable, thus Mediation is acceptable)             both parties must agree to adr. COCOO IS A NEUTRAL 3P ACTING AS MEDIATOR. mediation is non-binding (unlike Arb), unless folllowed by Settlement….push to be mediator, by threatening with complaining to EC, to ask for an EC review leading to a ‘commitment.decision (v.cos)’, or an EC ‘infringm.decis’ (v.members)… which would, if not implemented, trigger EC to litigate (@ cjeu)

**************STEP 2: RESEARCH************

  >>    >>        open.cma.commitment.decision    CMA.CONSUMER.DECISIONS/INVESTIGS    CMA.DECIS.MATO.PH2.CLEAR     CMA.DECIS.MATO.CLEAR.withremedies     CMA.DECIS.MATO.PH2.BLOCK                 

  OPEN.CMA.admin.PRIORITIES.DECISIONS :   CMA’s decision to close an investigation, or not to even investigate >>  SOURCE OF CASES FOR COCOO.  JUST USE THE CMA’S PRIORITISATION PPLES TO PRESS CMA TO open.REOPEN investigations that were closed ON cma PRIORITY GROUNDS (EX.lack of suffic.staff…but there is a cocon whose victim deserves to be paid damages

-my MP: liam.conlon.mp@parliament.uk

–parlm.ombd.downloadCOMPLAINT.FORM phso.enquiries@ombudsman.org.uk  login: contact@cocoo.uk Nightwish12

                                                 = the uk.compet.list is a specialist uk court that deals with claims brought under Article 101 and Article 102 of the Treaty on the Functioning of the European Union and the Competition Act 1988.                 :  i can apply to join the RPC.   Although IAs(impact.assessms) consider wider issues (such as the impact of the proposed policy on the environment or on competition), we cannot formally rate IAs on the fitness for purpose of this wider analysis. Instead we comment on whether they provide sufficient support for decision-making on these aspects of the assessment and then use a quality indicator of ‘good’, ‘satisfactory’, ‘weak’ or ‘very weak’.  wpis should be considered in every IA and included in the net present value estimate of the true cost of the regulation…..the CMA has recommended that the RPC should have the ability to red-rate an IA if it did not appropriately consider the impact on competition and innovation                                      

            

                      The TOP has no power to enforce the SOIs    Q: did cos. fail to comply, after the MA, with the undertakings and SOIs? possible fines, and undoing the merger (at huge loss to company).    Any undertakings that TOP fail to imposed?

:  The design of online environments affects our decision making and actions. We call this Online Choice Architecture (OCA). OCA is often used to help us: make our experience smoother or more intuitive;  pick out relevant products for us; simplify the overwhelming amount of information available online………However, OCA can also cause harm if designed in a way that weakens competition or doesn’t benefit consumers:   ex: Emma Group’s online sales practices, including whether its ‘urgency claims’ such as countdown timers and ‘high demand’ claims, and ‘discounts’ were misleading consumers>> CMA has asked the Emma Group to take steps to address these.     ex. rented.housing.consumer.report <> COCOO TO ARGUE THAT THE MAIN REASON FOR COCONS, IS 1LEG/2LEGS PREVENTING BUILDING ONLY IS VERY FEW AREAS CLASSIFIED AS URBAN…AND RESTRICTING THE RIGHT OF EVERY CITIZEN TO A HOME OR SELFBUILT HOME….THUS, HOUSE PRICES SKYROCKET TO THE BENEFIT OF DEVELOPERS AND POLITICIANS      EX. rail.road.BLOCK.EXEMPT.REG   (CMA submitted in march.2024 a report for sosbt to decide…and they are still waiting)

   >> find bidder that , before bidding, was not a group, but was formed only to win the bid  >> cartel

                                            

cocoo o.2.identify CMA.EC.Regs’ infringm or remedies decisisions, that have widespread consequences (new claimants. same coa) >> cocoo files:  A/focol: request CAT to be PCR (for class claimants) , or  B/focsing.LIP (to defend victimised members). cocoo can even apply for no barr., if case goes to trial….be creative: EX: pot.infring.of cons.law, data.priv, or envir.law >>  APD.     ex:ofwat decis: thames failure to report water leaks can be used as evidence before the ECJ.CAT.comco.HC >> cocoo ADP focol (class = water consumers)

1️⃣ UK courts (CAT, HC, and Comco) have discretion on the weight given to EC decisions’ findings.  2️⃣ CMA and Regulators, EC TDU (trade defence unit), and the UK Trade Remedies Authority (TRA) decisions and investigations findings, are prima facie evidence (not binding >> no FOC) before UK courts (CAT, HC, and Commercial Court)   = defends the UK from unfair international trade practices.    TRA.decisions can be appealed to the Tax and Chancery Chamber. TRA  is an arm’s length body of the DepT.B.T.   Defend the UK against economic harm caused by unfair trading practices. We undertake investigations into imports to the UK which may be unfair due to dumping or subsidies, or part of an unforeseen import surge.   Our expert team make evidence-based recommendations to the SOSBT on appropriate measures to defend UK economic interests

The Eu.uk Withdrawal Act 2018:    where EU dimension >> cma is not the SA approver or enforcer, but continues to be the ec.gc

 endowed with additional (powers=stat.duties+reg.UV.risk) =  TDS (transparency and disclosure statement) +   OIA(overseas.investigative.assistance)     The CMA response to the consultation and the updated CMA6:  will take effect from 1 January 2025 and will replace the existing CMA6 , gives the CMA new powers.duties.risks to review steps on behalf of other international authorities (OIA). THIS POWER applies across the CMA’s competition, consumer protection and digital markets functions. The OIA Guidance was approved by the Secretary of State for Business and Trade on 17 December 2024 and will take effect, along with the rest of the updated CMA6, from 1 January 2025

Whenever there is:  (a/ cma invitation to comment (IC), or  b/CMA.ec ISSUE STATEMENT (IS = initial theories on pot/poss competition and remedies), the parties are invited to provide submissions >>COCOO MAY ISSUE CMA.ec with a (usp=deofficio) CONSULTATION RESPONSE. i can use (as drafts) , csos submissionos(to IS and IC)      : the Chancellor decides if a (completed or proposed) mato has the pot to afffect uk nat.sec….the nsi.act has 17 areas >> cos have o.2.notify (mandatory) the proposed matoipo

: MB.MATOS   MB.insights.SEARCH   MB: 18.12.24     MB: 17.12.24     MB:10.12.24    MB.09.12.24.weekly.sanctions.update

>  CAT has jurisdiction to hear foc.dam based on infringement decisions from: cma, ofgem, ofcom, orr (office of raill and road), ofwat….SOSBT has clp juris. only in PII in mergers, but does not make infringement decisions, thus, no FOC (based on sosbt decisions) is possible

ex. cocoo will CHALLENGE SUBSIDIES (SAs), as they cause harm not only to rivals, but also to genpub/cons. These 2 techs work well:

1/ is wrong to regard the green.energy market as a market failure, which then justifies large amounts in SA (for cos to embrace green and dump carbon).   why’s wrong?: becos those monies should instead go to innovation, so that green can be as efficient and competitive as carbon, as soon as possible. when this happens, green will never be a market failure.

 2/the ECA eu.sa report states: that EC is failing their duty to implement transparency laws (ex to show if a given SA is lawful or not), because the only way to implement them is filing infringement procs (v.Members that breach eulaw), but EC is failing to file them and therefore cannot possibly know if its decisions are correct (ex. a EC decision to grant SA is lawful or not, or a EC decis as to wether a given SA is lawful or not, or a EC decis as to whether the SA was lawfully used or not) 

                                                                                                                                           LOBBYING.HOW2LOBY4OI LOBBYING.APPGS LOBBYING.GOV.GROUPS LOBBYING.FINSENTIMENT.ANALYSIS. LOBBYING.UK.USA LOBYING.EU LOBBYING.EULAW.REGS LOBBYING.SI.UK LOBBYING.DISCOUNTING4INFLATION LOBBYING.INVESTIGATIONS.ORCL EXTS BY RENTSEEKING LOBBYING.LCON.LCOM LOBBYING.HOL2 LOBBYING.HOL1. LOBBYING.UES ALP INHOUSE SOLICITOR SQAL:CBI.BSI.FSB                    

                

      the weirdness of the uk.mcr:  A “voluntary” regime for sellers – that isn’t voluntary for buyers; and a “non-suspensory” regime that allows deals to complete before clearance, but imposes hold separate orders that make other regimes’ gun-jumping rules look tame.  *platypus is updated fortnightly, focus on Phase 2 and Phase 1 outcomes, showing data from 1 January 2019 (and comparative stats starting from 2022), and, on the procedural side, a league table of fines imposed in merger cases since the first case in mid-2018.   mortality (of deals)= (blocked, unwound, abandoned). the UK regime deal mortality total is around 30% of the EU’s and the average target turnover per deal is less than 10% that of the EU: $194m to $2.0bn. Still, on a per capita/per unit of GDP basis, that’s twice the EU rate per capita and two-thirds larger relative to regime GDP

THE CMA.GENERAL RULE: 

acquisitions, t.o.s and jvs are also mergers.     A merger usually (vol.notif) only qualifies for a cma investig, f either: a/ the business being taken over has a UK annual turnover of at least £70 million…or….b/the combined businesses have at least a 25% share of any reasonable market

EXCEPTIONS (to the gen.rule)

1/ the cma may call for review a MA, upto 40 days after it was completed (whether the merging plcs notified them or not, and whether the (vol) notif thresholds were hit or not).  -a matoipo completed without the CMA/top approval >> the CMA/top can still decide to review it and can use interim measures to prevent the plcs from taking actions, if cma/top thinks that they might pre-empt its eventual decision;   – CMA fines;   -responsible Directors disqualified by the Institute of Directors and accused of possible fraud by the SFO and/ or the criminal courts, on the ground of reckless misconduct in the management of their companies and reckless indifference , or facilitating, or deliberate disregard, to the whole body of shareholders;  -Any lawfirms/profs involved could also be liable for facilitating the Directors criminal offence of reckeless misconduct;  -The companies themselves could be liable of failing to prevent the fraud involved in rigging free competition; -harm to the credibility of the plc’s past, current and future disclosures ;  -Companies that are LSE or AIM listed could also be disciplined by these regulators;  – risk of aggressive shortselling strategies;  -risk of shareholder (derivative)action for compensation;  -risk of being ordered by court to pay damages to victims/wpi

>>>  significant risks for plcs:

(a) the CMA may impose restrictions ( interim measures) on plcs to prevent them taking actions (for example, integration of the merging businesses) that might pre-empt the CMA’s exercise of its merger review powers. For instance, the CMA can appoint a trustee to monitor these measures at the businesses’ expense.
(b) costs can arise from having to dispose (divestment) of the merged business if the merger is prohibited

2/ The Mergers and the NSIA :

Investors and businesses may be legally required to tell the government about certain sensitive acquisitions under the National Security and Investment Act.NSIA:  a plc planning an acquisition of a qualifying entity in one of 17 defined sensitive areas of the UK economy, hasO.2.get prior approval from the government (sosbt). This is a MANDATORY ‘notifiable acquisition’.  >> IF sosbt does not approve the proposed/completed MA,  >> MA is void + civil or criminal penalties……The 17 areas of the economy are: Advanced Materials; Advanced Robotics; AI; Civil Nuclear; Communications; Computing Hardware; Critical Suppliers to Government; Cryptographic Authentication; Data Infrastructure; Defence; Energy; Military and Dual-Use; Quantum Technologies; Satellite and Space Technologies; Suppliers to the Emergency Services; Synthetic Biology; Transport……but notif.acquis are mandatory only to the acquisition of qualifying entities….and never to the acquisition of qualifying assets (vol.notif,even if the assets are linked to either of the 17 areas)…anr acquisition is a ‘notifiable acquisition’ if it meets the following criteria:

  1. plc acquiring a qualifying entity that carries out certain activities in the UK within one of 17 sensitive areas of the economy.
  2. And any of the following apply:

i) Your shareholding stake or voting rights increase: from 25% or less to more than 25%…..from 50% or less to more than 50%..from less than 75% to 75% or more

ii) Your acquisition is of voting rights and this will enable you to secure or prevent the passage of any class of resolution governing the affairs of the entity

-IDENTIFY PROPOSED MAtoipos UNDER CMA.fca.top INVESTIGATION; AND MAtoipos COMPLETED THAT ARE NOT UNDER INVESTIGATION.  WHERE THEY VOLUNTARILY NOTIFIED?   CMA final orders, on WPI  grounds BASED ON nsia’s 17 areas >> mandatory notification=nsi act) .  THE REST ARE ON CL grounds (voluntary notifications)

-SOSBT:    <> WPIs: (17 AREAS=mandatory notification=nsi act)  but only 3 (nat.sec; media.plur;….) are mandatory for sosbt (to review, or refer to cma)

-see publications of the co’s  SOIs(statements of interest) or Undertakings (concesions, commitments, compromises) ? <>  cma has a duty to inform sos , if any firm’s undertakings/conds/remedies, need to be released, varied, or enforced….cocoo will argue cma’s breach of this duty [re. bae, etc]

  STEP 1:  PARALLEL TRANSACTIONS

:   platypus@linklaters.com  

-While it operates a voluntary regime, the CMA reserves the right to call in non-notified transactions up to 4 months post-closing/announcement (whichever is the later) if they meet the existing jurisdictional thresholds based on turnover and, in particular, the flexible concept of ‘share of supply’ (see below).  If the CMA calls-in your deal, the subsequent investigation may pose significant obstacles to realising post-completion synergies.  Not only could the CMA subsequently prohibit/unwind the deal or require remedies after a lengthy investigation (as it has shown itself increasingly willing to do, see below), but it routinely imposes stringent hold separate orders halting all integration when it opens an investigation – sometimes even for anticipated deals (e.g. Tesco/Booker and Mole Valley Farmers/Countrywide Farmers). As demonstrated by the spin-off litigation from the CMA’s review of Facebook/GIPHY (in which the UK Courts confirmed the CMA’s wide discretion in this regard), negotiation of and compliance with a hold separate order becomes a significant deal workstream it is own right, with such orders often being global in scope (e.g. Google/Looker, GTCR/PR Newswire, Salesforce/Tableau), and sometimes resulting in fines for failure to comply (which the CMA has increasingly pursued in recent years, e.g. Electro Rent/Microlease, Ausurus Group/Metal & Waste, Vanilla Group/Washstation)

-Despite the regime’s focus on the impact of transactions on UK firms and consumers, the CMA has increasingly taken advantage of its flexible jurisdictional test to monitor and intervene in cross-border transactions in circumstances not only where the merging parties are not direct or close competitors, but also where the relevant target business has a small or indeed no clear UK nexus….In addition to one on turnover, the CMA operates a jurisdictional threshold which requires the merging parties to consider whether they will have a ‘share of supply’ exceeding 25% post-transaction.  In revised guidelines published at the end of last year, the CMA has made clear that it has a “broad discretion” when applying this test: having regard to “any reasonable description” of a set of goods or services; and calculating shares of supply based on not only conventional market share measures (turnover, volume of commerce, etc.), but also “any other criterion” such as number of relevant employees, patents or suppliers entering bids for a tender…..Particularly in markets involving new or innovative technologies and services related to online commerce, the CMA has been keen to establish jurisdiction even if those technologies/services have not yet been commercialised in the UK or generate comparatively small revenues.  In both Sabre/Farelogix and Roche/Spark, the CMA established jurisdiction despite the merging parties purportedly deriving no direct revenues from UK-based customers – e.g. on the basis of number of UK-based employees and revenue derived indirectly from one UK-based customer (via a partnership agreement with another downstream client)

-As compared to the European Commission (and many EU national authorities), the CMA has greater scope to investigate the acquisition of minority stakes and other transactions which might not otherwise be considered a merger of businesses meriting investigation.  The CMA has long had the ability to investigate any agreement or acquisition (shares or assets) which might afford a firm “material influence” over the strategic direction of another business.  The CMA’s revised guidelines underline that “even shareholdings of less than 15%” might attract scrutiny if other factors are present.  Recently, for example, the CMA investigated Amazon’s acquisition of a 16% stake in Deliveroo and limited rights at a Board level

-The CMA has emphasised that it is keen to facilitate international cohesion in parallel merger control proceedings.  The CMA has stated that it will not necessarily call-in transactions if it is clear that remedies agreed in other merger control proceedings are likely to address any UK concerns.  If it is does intervene, it will try to coordinate merger reviews with other authorities and align timetables where possible and appropriate – e.g. by using procedural powers to ‘fast track’ a deal to an in-depth Phase II investigation more often where there are clear potential competition concerns. However, the CMA has also informally indicated that it will not be afraid to take the lead where it considers that the centre of gravity of a transaction is in the UK or where UK market dynamics are materially different.  Even prior to Brexit, the CMA has shown itself willing to take divergent analytical approaches and decisions from other authorities in parallel investigations, e.g. pursuing in-depth investigations in Taboola/Outbrain when the US Department of Justice thought this unnecessary, and blocking Groupe Eurotunnel’s acquisition of Sea France assets when the French authority cleared it.

-UK merger control currently remains subject to the same statutory timetable as before, but its longer review periods are now likely to disrupt more transactions.  The CMA’s initial ‘Phase I’ and in-depth ‘Phase II’ review periods are materially longer as compared to many authorities, including the European Commission (CMA: 40 working days  vs. European Commission: 25 working days at Phase I; CMA: 24 weeks vs. European Commission: 90 working days at Phase II).  In common with the European Commission (but in contrast to a number of EU national authorities), the UK CMA also often engages in relatively lengthy pre-notification discussions before formally starting its review period….The UK process can also burdensome. Even in an initial ‘Phase I’ investigation, the UK CMA requires the merging parties to produce a material amount of internal documentation and information relevant to the transaction.  Recently published guidance makes clear that the CMA will want parties to adopt a thorough methodology for data collection, review and production, including using e-discovery technology where necessary.  The CMA has underlined that it regards internal documents regarding competitive dynamics and deal rationale as crucial to its assessment – particularly in dynamic markets where the CMA is likely to place less weight on more ‘static’ market data or economic evidence.  Linked to this, the CMA has increasingly used its formal legal powers to gather information (including via interview) and sanction parties for failing to producing it in a complete or timely manner via fines and/or by ‘stopping the clock’ on the review.

-the CMA has previously shown itself willing to coordinate remedies packages with other authorities – e.g. with the US Federal Trade Commission.  It has now also suggested that decision makers may be able to get involved in remedies discussions earlier on in the process than usual at both Phase I and II.  Further, it has proposed introducing a mechanism at Phase II by which parties can concede that the transaction raises competition concerns in certain market(s) in order to skip forward to the formal consideration of remedies

-The CMA also publishes its provisional findings and possible remedies publicly at Phase II, which may have implications for other merger investigations which are still ongoing – e.g. by prompting third parties to object to the merger elsewhere based on concerns raised by the CMA

-Early engagement need not necessarily however take the form of a proactive notification to the CMA, prompting a formal investigation.  The CMA operates a ‘mergers intelligence’ unit which scans global market press for investigations potentially warranting investigation.  The same unit is also open to considering briefings proactively submitted by merging parties regarding why a transaction does not warrant investigation in the UK.  Should it agree with the merging parties’ assessment, it can provide comfort that the CMA will not intervene (albeit this is not legally binding)……thus, Parties should use this informal channel of communication with the CMA when considering how to coordinate multiple potential merger control investigations

 

uk. ONGOING REG.CASES:

Government interventions on national security grou.PDF
Government interventions on public interest ground.PDF
National UK Security and Investment Act—progress trac.PDF
UK competition law—ongoing legislation and policy.PDF
UK Digital Markets Competition regime—progress tra.PDF

                               

  ( social responsibility failures when identifying customers at risk of harm)

                                                           i will apply to join the RPC.    :   IAs(impact.assessms) consider wider issues (such as the impact of a proposed policy on the environment or on competition), Does a given IA provide sufficient support for decision-making ? we use a quality indicator of ‘good’, ‘satisfactory’, ‘weak’ or ‘very weak.     wpis should be considered in every IA and included in the net present value estimate of the true cost of the regulation…..the CMA has recommended that the RPC should have the ability to red-rate an IA if it did not appropriately consider the impact on competition and innovation

CMA          

-tender participants create a temporary asoc (ex:union temp.de trabajadores.ute) para asegurarse ganar el ppp. y luego repartirselo. cnmc: if that was the intention of bidding as a temp.assoc, then it is a cartel. …but TS: no cartel, becos the cos (that integrate the temp.assoc, could not have participated individually (in the tender))

-EXCEPTION to cma’s discretionary power on penalty imposition and level: cmas cannot influence cos’ decisions, nor political (demolegit) decis (ex: 1leg). ex: cmas.regs cannot impose penalties based on their opinion of what is more convenient/suitable for a co, or for a 1leg and the level of powers delegated to the reg.cma

   CAT.COA.FCA.TOP

                           : The Bank of England (boe) prudentially regulates and supervises financial services firms through the Prudential Regulation Authority (PRA)          The TOP seeks to avoid problems arising during takeovers ( ipos and acquisitions), and works closely with the FCA in relation to insider dealing and market abuse…

A private placement is a sale of stock shares or bonds to pre-selected investors and institutions rather than on a public exchange.  young cos raise money using: a/ initial public offering (IPO) or a Prip (PRIVATE PLACEMENT = offering (of shares) to selected investors. not a public offering)

 uk.wpi mergers = industrial POLICY.strategy

         : Before the CMA makes a decision to refer a merger for a phase 2 investigation, the Secretary of State may issue a public interest intervention notice (PIIN) if he believes that at least one public interest consideration is relevant to the assessment of the merger.  sosbt then decides whether or not to make a phase 2 reference.  …3 types of pi:  national security, media plurality, and stability of the UK financial system.    s.42(2) EA2002:  SOSBT has o.2.identify a mato if it touches either of these 3 wpis (nat.sec; media.plur;….) + o.2.refer to cma and regs.  Also, the cma has a duty to inform sosbt, if a co’s PIIN-based (undertakings/conds/remedies), need to be released, varied, or enforced.  PIINs are very rare…the last one was in 2020: piin (pi INTERVENTION NOTICE) wrt THE pot/actual ACQUISITION BY DAILY MAIL AND GENERAL TRUST PLC, OF JPI MEDIA PUBLICATIONS LTD: ”Whereas the Sosbt has reas grounds for suspecting that, as a result of the acquisition by Daily Mail and General Trust plc of JPI Media Publications Ltd, there could be:

1- a RMS. requirements:  (a) two or more enterprises have ceased to be distinct;+ (b) the SST (share of supply test) has been met: whenever enterprises ceasing to be distinct, in relation to the supply of gws, at least one-quarter of all those gws, are supplied in (or a susbst part of) the UK, and
2- actual/pot PI consideration specified in section 58(2B) of the Act are relevant:(in this case: sufficient plurality of views in newspapers in each uk market for newspapers)

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