The UK Court of Appeal rules that damages cannot be recovered through the medium of Sec. 47A simply by identifying findings of fact by a regulator that could have amounted to a competition infringement, i.e., claimant’s right of action exists only if the regulator has actually decided that such conduct would constitute an infringement of competition provision (EW&S Railways / Enron)

In 2006, the Office of Rail Regulation (ORR) had concluded that English Welsh & Scottish Railway Limited (EW&S) infringed the prohibition contained in the Chapter II prohibition of the Competition Act 1998 and Article 82, EC Treaty [1] . EW&S infringed the said provisions as it engaged in abusive conduct - exclusionary behaviour, discriminatory pricing practices and predatory behaviour against Enron in the market for the haulage of coal by rail in Great Britain. A large penalty was imposed on EW&S by ORR which was meant to serve as a deterrent while keeping in mind the seriousness of the conduct. ORR had regard to EW&S'

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Sonam Mathur, The UK Court of Appeal rules that damages cannot be recovered through the medium of Sec. 47A simply by identifying findings of fact by a regulator that could have amounted to a competition infringement, i.e., claimant’s right of action exists only if the regulator has actually decided that such conduct would constitute an infringement of competition provision (EW&S Railways / Enron), 1 July 2009, e-Competitions Bulletin July 2009, Art. N° 27480

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