What’s it all about?

Competition or ‘antitrust’ lawyers advise on a range of matters including compliance with EU and national competition laws, as well as state aid rules. They are commonly asked for advice on whether an M&A transaction may require merger control approvals from competition authorities and if so, how likely it is that the authorities will impose conditions on the transaction.

For example, competition specialists may advise on legal issues arising from participating in an illegal cartel – ie where suppliers or manufacturers agree on certain terms with the object or effect of limiting supplies or competition. This may involve antitrust-related litigation such as where customers suffering damage due to a cartel bring a claim against the cartel participants. For example, in 2007 British Airways (BA) was fined £121.5m by the UK Office of Fair Trading and $300m (£180m) by the US Department of Justice for participating in a cartel to fix fuel surcharges charged to long-haul airline passengers. Two years later, cut-flower importers brought a representative damages claim against BA alleging that they had paid inflated airfreight charges because of the cartel. In some jurisdictions, including the UK, persons found guilty of certain cartel offences can face imprisonment.

The working culture

Like any area of law with a transactional element, the pace of life in a competition department varies. While the tempo can often be slower than in a corporate or banking group colleagues may ask for advice at a moment’s notice on the likelihood of competition authorities blocking a merger. Also, clients often request urgent advice on cartel-related issues, especially if they have been or are the subject of a dawn raid. The timelines involved with regulatory investigations, which can last for years, may be more predictable.

Trainees often undertake research tasks, typically into a particular legal topic, a market that is potentially relevant to a matter or a particular jurisdiction’s merger control rules. Trainees commonly gain drafting experience by, say, summarising recent developments in a sector relevant to a client. A junior competition lawyer should get a reasonable amount of responsibility. A typical day might be spent drafting a form to notify a potential transaction to the European Commission. You could find yourself attending a dawn raid, tracking competition authority representatives as they investigate a client’s premises. Like trainees, junior competition lawyers spend a lot of time researching aspects such as the market share a company has in a particular segment or territory.

The workload can be varied. Competition is a dynamic area of law with a fairly high level of media interest. Working in competition law often entails understanding clients’ businesses. For example, lawyers advising on Game Group’s acquisition of Gamestation (cleared by the UK Competition Commission (CC) in 2008) had to understand video games and how they are sold. A typical competition lawyer can therefore expect to quickly gain an overview of how various sectors operate.

Another attractive aspect of competition law is its perceived international transferability, especially within Europe where many national competition regimes closely mirror the rules and concepts contained in EU competition law. Broadly speaking, competition regimes across the world are beginning to converge so learning one country’s competition law can provide a good base for working in another.

What other practice areas do competition lawyers work most closely with?

Competition lawyers often work with corporate departments that may be handling M&A transactions. Competition law input is also often sought by commercial law colleagues drafting or reviewing agreements. Also, in the context of sector or conduct-specific investigations competition lawyers may be instructed directly by clients.

What phrase is a competition lawyer most likely to use and what does it mean?

You will often hear talk of ‘relevant markets’ because to effectively analyse competitive dynamics, economic sectors relating to a company’s activities (and/or a given transaction) must first be defined in product and geographical terms.

Skills required

A competition lawyer will need to maintain an up-to-date knowledge of the competition regimes in at least the UK and the EU. Commercial awareness and/or industry-specific knowledge will help you to understand how competition works in particular sectors. Project management skills may also come in handy, especially in the context of obtaining merger clearances or regulatory investigations where statutory timetables apply. Competition lawyers may also need to coordinate local counsel where an international transaction (eg the acquisition by Pfizer of Wyeth in 2009) requires approvals from authorities in various jurisdictions. You should also have some interest in economics. Competition lawyers are often required to evaluate the effect of a merger or takeover on a company’s market share. An understanding of economic theory can help you analyse any given sector’s competitive dynamics.

Foreign languages are by no means a prerequisite but they can make the job easier by facilitating, say, research into precedents across Europe and communication with authorities, colleagues or counsel in other jurisdictions.

Recent developments

Competition authorities are launching an increasing number of investigations into markets and sectors where competition does not appear to function as well as it could. They are also facing more challenges to their decisions. Between January 2009 and June 2010 a number of the appeals brought against the decisions of the CC were successful, while competition authorities are issuing ever larger fines.

Simon Deeble, associate, Clifford Chance