1 Cardiff Bus: Follow on damages claim Competition Law Association 1 October 2012 Peter Lukacs* *Views expressed are personal and do not necessarily reflect those of OFT

2 Brief Timeline April Travel launch services on 4 routes in Cardiff Cardiff Bus launch rival white services 2 Travel complain to OFT May – Sept 2004 OFT write to 2 Travel requesting further details on 3 occasions November 2004 Submission from 2 Travel received December Travel ceases operations in Cardiff Dec 2004 – Feb 2005 White services withdrawn May 2005 OFT Launches formal investigation November 2008 Infringement Decision issued

OFTs tentative and equivocal conclusion …it may be the case that 2 Travel might eventually have exited the market even if Cardiff Bus had not engaged in predation against it However, given 2 Travels weak financial position and its apparent difficulties in providing effective bus services in certain areas, the OFT considers it likely that 2 Travel was at particular risk of being forced to cease its Cardiff operations or prevented from gaining market share so as to become an effective competitor and improve its financial position. … On this basis, whilst there may be a question as to 2 Travels long term viability, the OFT considers that it is likely that Cardiff Bus predatory conduct was a contributory factor in 2 Travels exit from the market, potentially accelerating its exit. OFT Decision CA98/01/2008 November …we consider it doubtful whether what is said in these paragraphs could amount to a finding of fact for the purposes of section 58 of the 1998 Act. Nevertheless, so that there is no doubt, using our discretion under section 58, we direct that the parties are not bound by any finding of fact made by the OFT as regards the causative effect of the Infringement on 2 Travel. [2012] CAT 19 3

4 s 40 Competition Act : Limited immunity in relation to the Chapter II prohibition. (1) In this section conduct of minor significance means conduct which falls within a category prescribed for the purposes of this section. (2)… (3) A person is immune from the effect of section 36(2), so far as that provision relates to decisions about infringement of the Chapter II prohibition, if his conduct is conduct of minor significance; but the OFT may withdraw that immunity under subsection (4). (4) If the OFT has investigated conduct of minor significance, it may make a decision withdrawing the immunity given by subsection (3) if, as a result of its investigation, it considers that the conduct is likely to infringe the Chapter II prohibition. (5) The OFT must give the person, or persons, whose immunity has been withdrawn written notice of its decision to withdraw the immunity. (6) A decision under subsection (4) takes effect on such date (the withdrawal date) as may be specified in the decision. (7) The withdrawal date must be a date after the date on which the decision is made. (8) In determining the withdrawal date, the OFT must have regard to the amount of time which the person or persons affected are likely to require in order to secure that there is no further infringement of the Chapter II prohibition.