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‘Its distinguished members act for central and local government, NGOs, commercial organisations and individuals.’Chambers and Partners 2014
Nicholas Gibson: EXPERTISE

Competition Law and Regulation

Contact: nicholasgibson@matrixlaw.co.uk Practice Manager: jasonhousden@matrixlaw.co.uk

Nicholas has a wide-ranging competition law practice focusing on contentious matters. He has extensive experience of representing clients throughout regulatory investigations into alleged breaches of EU and UK competition law, including attendance at ‘dawn raids’ and advice on ‘leniency’ applications. The OFT instructs him in both civil and criminal cartel matters, including applications for search warrants. His Art 101/Chapter I practice also includes follow-on damages claims, and advisory work on matters including information exchange and distribution arrangements. Nicholas co-wrote the chapter on Art 102 for Bellamy & Child, and has a strong practice in this area with particular experience in margin squeezing and dominance issues arising in the context of utilities regulation. He has also advised on diverse other competition law matters, including market investigations under Part 4 of the Enterprise Act 2002, State aid, public procurement, and competition issues arising in commercial disputes, commercial judicial review, and in criminal prosecutions.

Recent and notable examples of his experience in this area of practice include those set out below.

Lafarge Tarmac Holdings Limited v the Competition and Markets Authority; Hope Construction Materials Limited v the Competition and Markets Authority (Case Refs. 1224, 1225/6/8/14) (2014) Defending the CMA (as junior counsel to Rhodri Thompson QC) against challenges to the package of remedies (and in particular the divestiture of a cement plant) proposed by the Competition Commission to address coordination in GB cement markets, which the CC had found following its Aggregates market investigation under Part 4 of the Enterprise Act 2002. Details of the case are available via the CAT’s website here, including judgment refusing Lafarge Tarmac’s application to rely on new expert evidence in [2014] CAT 5.

Ecotricity Group Limited and another v Tesla Motors Inc and another (Claim No. HC14C02139) (2014) Defending the UK’s leading green electricity company and its ‘Electric Highway’ network of charging points for electric vehicles (“EVs”) at motorway service stations and other sites against a counterclaim by a US manufacturer of EVs alleging breaches of competition law in relation to the provision of EV charging services in the UK.

Own-initiative investigation by the OFT into Weatherseal Home Improvements Limited (Case. Ref. CE/9706/12) (2014) Advising the OFT in relation to its investigation under Part 8 of the Enterprise Act 2002, the Consumer Protection from Unfair Trading Regulations 2008 and the Cancellation of Contracts made in a Consumer’s Home or Place of Work Etc. Regulations 2008 into the business practices of Weatherseal, a national provider of double glazing and other energy efficiency and home improvement products, leading to Weatherseal providing assurances regarding its future conduct. Details of the case are available via the OFT’s (former) website here.

Complaint from Thus Plc and Gamma Telecom Limited against BT about alleged margin squeeze in wholesale call pricing (2013) (Case Ref. CW/00988/06/08) Representing BT (as junior counsel to Rhodri Thompson QC) in Ofcom’s investigation into an alleged breach of Chapter II of the Competition Act 1998 and Article 102 TFEU (abuse of a dominant position), leading to Ofcom concluding that BT’s conduct did not constitute an abuse of its dominant position and that there were therefore no grounds for action. Details of the case are available via Ofcom’s website here.

Everything Everywhere and others v Office of Communications (MCT appeals) (2013) [2013] EWCA Civ 154 and [2012] CAT 11 (Appeal No. 2012/1523) Representing the Competition Commission unled before the Competition Appeal Tribunal in joined appeals by Everything Everywhere and other parties against Ofcom’s 2011 Wholesale Mobile Voice Call Termination Statement, advising in relation to the Commission’s determination of the questions referred to it and defending that determination (as junior) against challenges on judicial review grounds before the Tribunal and on appeal to the Court of Appeal. Details of the case are available via the Tribunal’s website here.

Investigation into the supply of products to the construction industry (2013) (OFT Case Ref. CE/9705/12) Advising the Office of Fair Trading in relation to a criminal investigation into suspected cartel activity in the supply of products to the construction industry. Appearing in the High Court on applications for warrants under section 194 of the Enterprise Act 2002 to carry out searches at a number of locations across the UK. Details of the case are available via the OFT’s website here.

La Gaitana Farms S.A. and others v British Airways plc (2013) (Claim No. HC13CO3115) Acting (with Rhodri Thompson QC) for South American flower growers in their follow-on competition damages claim arising from a price-fixing cartel in relation to air freight services provided by British Airways and other international carriers of air cargo. Details of the EU Commission decision finding that British Airways and others had breached Article 101 TFEU are available here.

Marine Management Organisation v Craig (2013) (Case No T2012) Representing (with Rhodri Thompson QC) an inshore fisherman accused of fishing in breach of his quota allocation, and appearing in the Crown Court and on appeal to the Court of Appeal (Criminal Division) on his application that the prosecution be stayed as an abuse of process because UK quota allocation is discriminatory and breached general principles of EU law and EU law on State aid; and representing him in an appeal to the Court of Appeal (Criminal Division).

R (Sky Blue Sports & Leisure Limited and others) v Coventry City Council [2014] EWHC 2089 (Admin) [2013] EWHC 3366 (Admin) Acting (with Rhodri Thompson QC) for the owners of Coventry City Football Club in judicial review proceedings before the Administrative Court alleging that Coventry City Council’s decision to lend £14.4million to its subsidiary Arena Coventry Limited (the company which managed the Club’s home ground) was an unlawful use of public funds in breach of EU State aid rules and irrational; and representing the Club’s owners on an appeal to the Court of Appeal.

Recall Support Services Ltd v Secretary of State for Culture, Media and Sport (2013) [2013] EWHC 3091 (Ch) Defending the Secretary of State against a Francovich damages claim in the Chancery Division, in which the operators of GSM gateways (a device incorporating SIM cards issued by mobile network operators) alleged that a restriction on such devices under UK law constituted a serious breach of EU law, and advising on Article 102 (refusal to supply) issues arising in the context of causation.

TalkTalk and Sky v Office of Communications; BT v Office of Communications (LLU/WLR appeals) (2013) (CAT Case Ns 1192 and 1193/3/3/12) Representing the Commission unled before the Competition Appeal Tribunal in appeals by TalkTalk and Sky and by BT against Ofcom’s 2012 Local Loop Unbundling and Wholesale Line Rental Statement, and subsequently advising in relation to the Commission’s determination of the questions referred to it. Details of the cases are available via the Tribunal’s website here and here.

Verizon and Vodafone v Office of Communications (BCMR/LLCC appeal) (2013) (CAT Case No 1210/3/3/13) Representing BT as intervener in a joint appeal by Verizon and Vodafone against Ofcom’s 2013 Business Connectivity Market Review (“BCMR”) and Leased Lines Charge Control (“LLCC”) Statement, and subsequently appearing for BT in hearings before the Competition Commission in the Commission’s determination of the questions referred to it by the Tribunal. Details can be found here.

R v Euroteam AS; OFT v Gyrre (2012) Advising on defences under the European laws of competition and free movement of goods and services to alleged offences of selling Olympic tickets without authorisation under the London Olympic Games and Paralympic Games Act 2006. Further advising (with Rhodri Thompson QC) in relation to an application by the Office of Fair Trading to the High Court for an interim enforcement order under Part 8 of the Enterprise Act 2002 arising from alleged Community infringements under consumer protection legislation.

International Marketing Limited v the Office of Fair Trading; Bankruptcy Limited v the Office of Fair Trading (2011) (Case Ns. CCA/2010/0001 and 0002) Representing the OFT (as junior counsel to Eleni Mitrophanous) in joined appeals to the First-tier Tribunal by companies formerly licensed under the Consumer Credit Act 1974 against the OFT’s determinations to revoke those licences, including advice on various issues under the 1974 Act and Part 9 of the Enterprise Act 2002, the Data Protection Act 1998 and the Companies Act 1985.

Local Bus Services Market Investigation (2011) Instructed as junior counsel to advise the Commission on issues arising from its investigation into the local bus services market in the United Kingdom (excluding London and Northern Ireland) under Part 4 of the Enterprise Act 2002. The Commission’s report can be accessed here.

Scot Young Research Limited v NHS Business Services Authority (2011) (Claim No. HC10C04461) Representing (as junior counsel to Rhodri Thompson QC) a supplier of cleaning products to the NHS in its claim in the Chancery Division for breach of public procurement regulations, and advising on mediation and settlement.

TalkTalk v Office of Communications; BT v Office of Communications (WBA appeals) (2011) (CAT Case Ns 1186 and 1187/3/3/11) Representing the Commission unled before the Competition Appeal Tribunal and otherwise advising the Commission in appeals by TalkTalk and by BT against Ofcom’s 2011 Wholesale Broadband Access Statement, including advice in relation to the Commission’s determination of the questions referred to it in BT’s appeal. Details of the case are available via the Tribunal’s website here.

Cable & Wireless UK v Office of Communications (PPC appeal) (2010) (CAT Case No. 1112/3/3/09): Legal adviser to the Competition Commission on a reference from the Competition Appeal Tribunal in the appeal by Cable & Wireless against Ofcom’s 2009 Leased Line Charge Control Statement, liaising with expert advisers on economics and accountancy issues, and leading the preparation of the Commission’s determination of the questions referred to it. Also instructed as junior counsel for the Commission in BT’s subsequent challenge on judicial review grounds; BT withdrew its challenge prior to trial.

R (CGTSN and Global Knafaim Leasing) v the Civil Aviation Authority and BAA (2010) EWHC 1348 (Admin) (Appeal No. 2010/1682) Representing (as junior counsel to Rhodri Thompson QC) an aircraft leasing company in its challenge under the Human Rights Act 1998 and UK/EU competition law and EU fundamental rights to the detention and threatened sale of its aircraft, and in its subsequent appeal to the Court of Appeal; the matter settled before the hearing of the appeal.

PLUS Markets plc v London Stock Exchange plc (2008) Acting for the London Stock Exchange in proceedings before the Commercial Court brought by PLUS Markets challenging the AIM trade reporting rules on competition and free movement grounds; the case settled shortly before trial.

Investigation into an alleged collective boycott and alleged price fixing by certain recruitment agencies (2007) (CE/7510-06) Acting for Hays Specialist Recruitment in the OFT’s “Construction Recruitment Forum” investigation into complaints of collective boycotting and price-fixing in the supply of candidates to the construction industry.

SanDisk Corpn v Koninklijke Philips Electronics NV and others (2007) [2007] EWHC 332 (Ch); [2007] Bus. L.R. 705 Acting for a group of major European technology companies in an action for alleged breach of competition law in the Chancery Division, including a challenge to the jurisdiction of the English courts under the “Brussels” Regulation 44/2001/EC.

Banana importers: cartel investigation (2006) Acting for the leniency applicant in an investigation into a cartel among suppliers of bananas: see the related European Commission press release: IP/08/1509.

National Association of Licensed Opencast Operators v International Power plc and Powergen plc; South Wales Small Mines Association v International Power plc and Powergen plc (2006) Acting for an international energy company in the context of the European Commission’s investigation into alleged systematic price discrimination in the prices paid to coal suppliers, arising from complaints by coal industry representative bodies.

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