HP-2020-000016 - [2025] EWHC 1451 (Ch)

Cabo’s claim was filed before IP completion day on 31 December 2020, relying on the provisions of both EU and UK competition law. Cabo therefore brings its abuse of dominance claim under both the Chapter II prohibition and Article 102 TFEU, although neither Cabo nor MGA identifies any material difference in the scope of these provisions.

The Chapter II prohibition in s. 18 of the 1998 Act prohibits conduct which amounts to the abuse of a dominant position in a market, which may affect trade within the UK. Section 18(2) specifies that conduct may in particular constitute an abuse if it consists in:

“(a)

directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b)

limiting production, markets or technical development to the prejudice of consumers;

(c)

applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d)

making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.”

Article 102 TFEU sets out essentially the same prohibition, save that the requirement is for the conduct to affect trade between Member States.

The basic legal framework is not in issue in the present case. The issues in dispute are (i) the definition of the relevant product market (it being agreed that the relevant geographic market is the UK); (ii) whether MGA is dominant on that market; and (iii) whether MGA’s conduct amounted to an abuse as a matter of law. It is not disputed that MGA’s conduct was capable of affecting trade within the UK for the purposes of the Chapter II prohibition, or between Member States for the purposes of Article 102 TFEU.