UK Competition and Markets Authority Confirms Direction of Travel for Post-Brexit Approach to Vertical Agreements

by Becket McGrath

On 17 June, the UK Competition and Markets Authority (‘CMA’) published a keenly awaited consultation document setting out its proposed recommendations to Government for the UK’s new competition law regime for vertical agreements.  Essentially, the CMA is proposing to adopt an approach that remains closely aligned with the EU verticals regime, which is itself about to undergo a refresh to take account of market and legal developments since its last update in 2010.  This is a welcome development, as it should reduce the potential for material divergence between the two regimes, which would reduce legal certainty and increase costs for businesses trading in both the EU and UK.

Background

The need for this consultation has arisen now, as the post-Brexit transitional arrangements for vertical agreements (such as selective and exclusive distribution agreements) are about to expire.  To summarise the legal position, while the UK was an EU Member State the analysis of vertical agreements in UK competition law was largely determined by the EU Vertical Agreements Block Exemption Regulation (‘VBER’).  This sets out the circumstances in which a vertical agreement is protected from challenge under Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’).  Importantly, the VBER also defines certain ‘hardcore’ restrictions that render an agreement presumptively unlawful.   Together with the accompanying European Commission Guidelines, the VBER effectively serves as a complete code for the treatment of vertical agreements in EU competition law.

[…]

Since the direct application of EU competition law in the UK ceased at the end of the Brexit transition period on 31 December 2020, new arrangements were needed urgently to determine the status of vertical agreements in UK competition law from that point.  The immediate solution adopted by the UK Government was essentially to continue the pre-Brexit approach, by incorporating the current EU VBER in UK domestic law, as a ‘retained block exemption’, at least until the VBER’s expiry on 31 May 2022.  Since that date is now approaching, the Government needs to decide what to do.  At the same time, the Commission is part way through its own review of the VBER and Guidelines, as it needs to decide the extent to which the EU regime should be updated after 1 June 2022.

While it may be tempting to continue with the UK’s current approach of aligning completely with EU law in this area (which broadly works), unlike the last time the VBER was reviewed in 2010 UK Government and CMA officials no longer have any input on the text of the EU VBER and Guidelines.  As a result, a decision simply to follow the (revised) EU regime from June 2022, whatever its form, would hardly be a ringing endorsement of the UK’s new found freedom to diverge from EU rules.  On the other hand, the Government and the CMA need to bear in mind that diverging from EU law in this area for its own sake would introduce complexity for the large number of businesses that trade in the UK and EU.  To introduce further complexity, many of the core principles of EU law competition law as applied to vertical agreements rest on EU-specific policy priorities arising from the need to create a single European market.  It was unclear how far these priorities should continue to determine the shape of UK competition law, post-Brexit, especially since the UK is no longer part of the Single Market.  Given this uncertainty, the UK CMA consultation document is an important step forward.

To read about key recommendations and next steps, download the full briefing here.

Natalie Greenwood becomes Partner at Euclid Law

Euclid Law is pleased to announce that Natalie Greenwood will become a Partner with effect from April 2021 having joined as counsel in September 2019. Natalie, who is dual-qualified in the UK and Spain, has over 15 years’ experience and, prior to joining Euclid, worked as a lawyer at Lloyds Banking Group (where she was recognised as one of 30 most notable in-house competition professionals in her 30s) and as a senior associate at Clifford Chance. Natalie has extensive experience advising on all aspects of competition law, including cartels, mergers, behavioural antitrust matters and competition litigation. She has particular experience in financial services, in addition to a range of other sectors, including media and consumer goods.

Oliver Bretz, Managing Partner at Euclid Law, commented: “I am absolutely delighted that Natalie has agreed to join our Partnership.  She is already an invaluable member of the team and brings with her a wealth of experience and expertise, both in private practice and in-house. I have had the privilege to work with Natalie, both at Clifford Chance and at Euclid Law, and I am of the view that she will continue to be a great asset to Euclid and to our clients.”

Natalie Greenwood commented: “I am very happy to be taking this next step and joining the Partnership of Euclid Law. Euclid Law brings a unique combination of outstanding expertise in a boutique model.  I have found that this offering is very appealing to clients – and also makes it a great place to work.”

Notes to editors: Euclid Law is an award-winning boutique competition law firm with offices in London and Brussels, made up of 5 partners, 1 senior consultant and a team of outstanding paralegals.

The Euclid formula – How I moved from Big law to a rather special boutique and lived to tell the tale

By Becket McGrath

There comes a time in one’s career where an opportunity arises that feels like a jump into the unknown. The question then becomes, do you stick to what you know and are used to or dare to take what looks like the riskier option?

As one of the partners who built up the Berwin Leighton Paisner EU and UK competition practice in the mid-2000s, a founding partner of the London office of US firm Cooley in 2015 and of that firm’s Brussels office in 2019, I was accustomed to building a high quality EU and UK law competition practice in a larger firm context.  Based on that experience, I was no stranger to risk, but it felt like time to take on the challenge of building such a practice in a smaller, more focused firm.

At a time of economic uncertainty, when so many workplaces are having to evolve rapidly, it provided some comfort that the Euclid team had already undertaken a radical change in how they do business. Founding partner Oliver Bretz and the rest of the team created something truly unique in the London market five years ago: a boutique firm entirely focused on providing expert EU and UK competition law advice to the highest possible standard, in a collegiate and nimble manner.  

Having watched the firm go from strength to strength, joining them for the next phase of this exciting venture right now turned out to be perfect timing. Indeed, the events of 2020 have demonstrated the benefits of our approach in a dramatic way, as we were already set up for remote working, including through the use of a cloud-based matter management platform. Our model also meant that we were not saddled with the high overheads associated with large City offices, support staff and teams of associates.

While joining Euclid Law in the middle of a national lockdown in June was certainly challenging, and felt far from playing it safe, it now turns out to have been less of a risk, as we are uniquely well-placed to ride out the current storm.  

Playing it safe vs. expert versatility

While traditional law firms largely maintain a rigid, one-size-fits-all approach, Euclid is like the pragmatic skink of New South Wales: we look at the risk and adapt to the environment in a way that best meets the overall objective. We approach each case with customised and personalised advice and work together with clients to explore the risks and uncertainties associated with different options for solving their issues. We then create a bespoke strategy tailored to their risk appetite and the ever-changing competition law environment. While the choice is ultimately the client’s, we are quite happy to take a view on the level of risk and provide the direction they need to make a decision.

Client feedback and case studies validate our business model. For example, when a global food retailer wanted to buy a competitor company, a big firm simply told them “no, too risky”, so they then turned to Euclid for a second opinion. We found that it was in fact possible, with some risk but minimum divestment prospects. It took a pragmatic approach to push through this high-yield deal.

We adopt a similar approach to UK merger notifications. While other firms might opt for a ‘one size fits all’ approach on whether to notify the authorities prior to a merger, we analyse each case’s risk profile in-depth, in the context of what is a highly dynamic CMA environment, and advise accordingly. We are not adverse to the client taking a calculated risk and will stick to our guns when we’re confident in our counsel.

Proudly Counter-Cultural

So, if we’re a lean partner-led team with a flexible fee structure that aims to produce the best results for clients, how is Euclid able to offer high quality, bespoke solutions and be profitable, all without partners burning the proverbial candle at both ends?

The answer is simple: we keep our costs low, we deploy our deep expertise straight away rather than expecting the client to pay for junior lawyers to acquire that expertise on the job, and we use technology in a smart way.  

The deep experience of the Euclid team, acquired from our work at global law firms and at a senior level within competition authorities, gives us the confidence to do this with confidence. All of our senior lawyers are ranked in the current Global Competition Review/Who’s Who Legal directory of leading competition lawyers and two are ranked as ‘thought leaders’ by that publication. Clients get direct access to this expertise, in a focused and efficient way. 

Once we are instructed, our clients become part of our team and also appreciate this approach. Although we are hyper-professional and always available, regardless of timing, we can structure our worktime and lives around our extended team’s needs and our humane approach is valued by all concerned.

Euclid’s flexible fee structure, bespoke case strategy and client-first approach is undeniably ‘counter-cultural’ in an industry that can be beset by entrenched working practices and business models. We’re comfortable being viewed as rebel upstarts, because we don’t view ourselves as a traditional law firm, but rather as entrepreneurs. And being an entrepreneur means constantly working to improve what we do, for clients, for staff and for society as a whole. In fact, both Oliver Bretz and Marie Leppard were nominated for EY Entrepreneur of the Year in 2020.

We are also alive to the social context in which we operate. Competition law helps to shape the societies we live in and what we do for our clients impacts markets and consumer welfare. Competition law also has the ability to support wider policies, such as environmental protection – a cause Euclid is dedicated to.

Competition law is an exciting space right now and in this respect, we are arguably fortunate to be living in such interesting times, even if it doesn’t always feel like it. Euclid is uniquely placed to thrive in this environment, and this is one of the main reasons why I decided to join this exciting venture. We believe that our success in such a short time – against strong competition – is due largely to our innovative yet pragmatic approach, which continues to evolve as we do.

More on Euclid’s #5YearEvolution here: https://euclid-law.eu/5-year-anniversary-pragmatic

Signs of Commission’s Verticals Focus Emerge in VBER Evaluation Document

by Becket McGrath, Sarah Long and Aakash Kumbhat

On 8 September 2020, the European Commission (‘the Commission’) published the results of its evaluation of the Vertical Block Exemption Regulation (‘VBER’) and associated guidelines in the form of a Staff Working Document

The 232 page document summarises evidence received by the Commission from businesses, their advisers, consumer bodies and national competition authorities (‘NCAs’) in response to its consultation on the operation of the current vertical agreements regime.  It also takes account of the findings of the Commission’s E-commerce sector inquiry, which ran from 2015 to 2017, and a detailed ‘evaluation support study’ that was conducted by external consultants.  Although the document is primarily concerned with pulling together the wide-ranging views received through this process, which has been running since 2018, it does contain some broad conclusions and an indication of its priorities for updating the verticals regime.

To read the full note, click here.

INTUITIVE WORKING IN THE 4TH INDUSTRIAL REVOLUTION

How Euclid Law Created The Workplace Of The Future

By Oliver Bretz


It’s often said that entrepreneurship is born out of frustration.

For me, the pinnacle of that frustration came in late 2014. After 15 years as a partner in a global traditional law firm, I had had enough. The personal sacrifice, the interrupted weekends, the high churn rate and the never-ending pursuit of high billable hours had all taken its toll: it had destroyed who I was, it had affected my marriage, my relationship with my children and my mental health was on the edge. I had the impression that I, as an individual, no longer mattered.

Much like the peppered moth, scheduled for extinction if it didn’t change it’s colours, I intuitively knew that this way of working no longer worked for me, nor for clients nor for society at large. And so in 2015 out of a sense that it could be done so much better, Euclid Law, the first Next Generation Boutique focussed solely on competition law was born and, with it, a new ethos and an entirely new way of working.

People Before Profit

Driven by our belief that there are a lot of good lawyers out there but far fewer ‘great people’ to work with, my fellow founding partners and I started out by recruiting people who are very diverse but who share the same values. Diversity and shared values are not contradictory – it is what makes Euclid tick.

These values underpinned a new workplace culture in the legal industry; one that is open, approachable, collaborative, inclusive and places the wellbeing of lawyers and clients over billable hours.

We knew intuitively that strong inter-personal relations and communication foster innovation and value – both to the client and to staff.  Now it was time to put that to the test. So we instituted weekly 360-degree meetings with everyone on the firm where there is a full, frank and open feedback system that is not constrained or censored by hierarchy.

Having experienced first hand the impact of working in a traditional legal pyramid structure, the physical and mental wellbeing of our team became a key priority.

We largely did away with evening and weekend working (the norm in traditional law firms) by planning more effectively and re-allocating work where possible, thereby enabling staff to pursue their own interest and goals. Family rights and responsibilities were also prioritised, to the extent where the partners took a conscious decision that profit and family are not incompatible but sometimes, just sometimes, family is more important than profit.

Euclid also retains a psychologist on a permanent basis to help the partners and staff members to deal with any issues that arise and to become aware of their own biases and unconscious patterns of behaviour in the team.

Getting Our Hands Dirty

Instead of having multiple offices filled with people who do not share our vision and values, we focus on a ‘quality over quantity’ approach by recruiting select senior competition law experts who not only share our vision, ambition and drive to serve clients the way we do, but who also embrace our non-hierarchical approach.

An anomaly in the law sector, this approach means the partners lead from the front. We ‘get our hands dirty’ and do the work, supported by a small team of experienced paralegals. Our more advanced use of technology enables us to work leaner, smarter and more cost-effectively.

In my previous life I was often concerned that the Partner profits would look unconscionable to the average teacher or nurse. At Euclid the partners are much more aware of their role in society and do not reap massive salaries at the expense of junior lawyers churning the hours in the hope of progressing up to partner level one day. We do not believe that the pyramid is a healthy model.  

Our unique business model goes against a very old and traditional institution, but this model is core to our value system of good old-fashioned quality before profit and growth.

Five years down the line, I can proudly say we have created the workplace culture that the other founding partners and I envisioned, and it shows in the strength, efficiency and resilience of our team.  

Today, Euclid Law has two offices (London and Brussels) and a lean but diverse team of nine staff of seven nationalities who are able to work across eight languages, including four highly experienced partners who lead the Firm from the ‘shop floor’ – there are no ivory towers.

Client Focussed, Client Inclusive

Euclid’s progressive and inclusive way of working extends to the law firms we partner with. As a competition law specialist, Euclid Law does not compete with traditional referring or partner law firms. Based on our motto of being ‘built in’ rather than ‘bolt on’, we collaborate in a way that is best for all stakeholders and puts the client’s interest centre stage.

Which brings me to the most important person in our alternative way of working: the client…

Many large law firms talk about listening to the client and providing a tailored service. At Euclid, we see the client as part of the team and we will look after the client’s interests, including on cost management. This approach encourages clients to contribute their knowledge and expertise, which in turn assists our team in delivering the best outcome at the lowest possible cost. If we believe that an aspect of the work is better done by the client, we simply say so – and give the client a choice. We see the client relationship as being about trust and choice over time – many of our relationships are very long-term, which is the way we want it to be.

Euclid’s approach also differs in how we deliver the advice. In the competition law environment, too often the advice is “you can’t do that”. This needs to change and that change requires thought-leadership that is innovative, flexible and market leading. Having to operate ‘out of the box’ has challenged the partners to find solutions that are ‘built-in’ not ‘bolt on’ – the type of long-lasting, structural solutions that do not typically emanate from a pyramid structure of junior lawyers but that require careful thought by experienced lawyers.

Celebrating The Unorthodox

As we celebrate five years of Euclid Law in 2020 and if I reflect on our journey so far, it gives me great pleasure to say that Euclid has become a leading competition law firm by pioneering this unorthodox way of working and staying true to our values of improving the experience for clients, for staff and for society as a whole.

We don’t have gold doorknobs or bloated teams to impress, but we consistently deliver what we set out to do in early 2015: to provide market-leading thought leadership and advice that is always in the client’s best interests. That’s what makes us tick.

More on Euclid’s #5YearEvolution here: https://euclid-law.eu/5-year-anniversary-intuitive/

FROM TOADS TO FLEXIBLE FEES

How Euclid Law Became “The Competition Law Firm”

When Euclid Law was established in 2015, we knew that to do something new, you have to first stop doing something old. We created the UK’s first dedicated competition law firm.

For us, that meant rejecting the established law firm business model, which we felt was no longer working in the interest of clients.

We did this by taking the traditional pyramid structure (partners at the top, propped up by an ever-changing group of associates) and, quite literally, flipping it on its head.

We adopted a senior-led business model and thereby eliminated the need for junior and mid-level associates. The reasoning for this was quite simple: the archaic top-down model does not provide what clients need and increases cost. It also places undue pressure on junior and mid-level associates and ultimately alienates all concerned.

Here is the rationale:

  • In the traditional geared law firm model, clients pay primarily for the time of junior and mid-level lawyers (with billable targets typically set at 8.5 hours a day), without any reference to efficiency or the quality of the actual work-product.
  • This system primarily benefits the partners, with Magic Circle profits per partner typically above £1-1.5m.
  • Meanwhile, this system has a high human cost. The main ‘fee earners’ – the junior lawyers – doing most of the work may have limited prospect of advancement. They may have to sacrifice family life, and possibly their mental and physical health, to sustain the pyramid, resulting in burnout and high turnover (churn rates are typically 33%).
  • And the story repeats itself, over and over again, with partners unable to leave because they depend on the high earnings for their lifestyle and junior lawyers working all hours to sustain and advance their careers.

WE DISRUPT THE PYRAMID

Five years ago, Euclid Law defiantly challenged this legacy approach by adopting a flexible-fee, partner-led fee structure where senior lawyers do the work, assisted by outstanding paralegals.

Disrupting an established value chain may sound logical and simple – easy even. However, flipping a heavy, ancient pyramid required innovation, tenacity and, above all, adaptability.

Like Australia’s cane toad, Euclid Law had to adapt to this new environment by creating a different business model in order to survive, and then thrive. We are now an established part of the ecosystem.

This is how we did it…

WE ARE DIFFERENT

First, Euclid Law moved away from traditional fee structures and instead introduced a flexible fee structure that places overall value over billable hours.

This was based on our inherent belief that clients do not primarily measure the value of our services according to the time we spend and we likewise do not measure the performance of our lawyers according to the hours they record.

We are intolerant of costs. We do not have a lavish reception area, as clients should not be paying for that. In summary, our charging structure is client-centric.

WHAT WE DO

As a 4th Industrial Revolution law firm, we rely heavily on bespoke technology –especially the latest artificial intelligence (AI) tech – to decrease administration, improve efficiency and to deliver cutting-edge client solutions.

This savvy use of technology allows us to cut costs and offer clients partner-led innovative solutions for a fraction of the cost of traditional law firms.

If we believe some aspects of the work can be done more effectively by the client, we say so, and we encourage and guide our clients to adopt the latest AI technologies to help them. This empowers the client while simultaneously reducing costs.

But technology alone does not ensure cost effectiveness or efficiency. We also have to be extremely strategic and apply our lawyers’ high level of expertise, in order to produce results in a shorter amount of time and with fewer resources. This means Euclid Law has had to adapt to become more agile, innovative and flexible in its approach to cases.

Our use of technology, combined with our unique strategy and client empowerment, enables Euclid Law to offer a flexible fee structure that is adaptable to each case, without sacrificing efficiency, speed or, most importantly, excellent legal advice.

WHY WE DO IT

We’re as transparent about our motives as we are about our fee structure: Euclid Law’s inverted pyramid business model is unashamedly less profit-driven for the partners than the traditional law firm model.

Euclid Law is genuinely dedicated to obtaining the best results for clients in the most cost-effective and time-efficient manner. However, evolutionary theories aside, it’s not entirely altruistic…

As progressive strategists, we know that this way of doing business is the future. From years of experience at the world’s top law firms, we are acutely aware that today’s clients are looking for individuals who offer true value and experience, rather than the brand name-credentials of legacy firms, and real partner commitment, rather than a top-down, largely hands-off approach.

In short, we know that the world is rapidly changing, and we are cognisant that if law firms do not adapt they will become evolutionary failures. Euclid Law is here to stay and we know that our approach is the right one for clients.

We are unashamed advocates of putting people before profits, and this includes our clients and ourselves: the partners and our colleagues.

We have consciously chosen a business model that is not as hours or profit-focused as traditional law firms.

For us, this means a working environment that facilitates the highest level of service to our clients, while also valuing diversity [and intersectionality], endeavouring to respect everyone’s evenings and weekends, family and parenting obligations and empowering staff to pursue their own interests and goals.

We have all experienced the downsides of a profits-, targets- and hours-first model first-hand. We’ve also done the maths and it’s simply not worth it – not for the partners, our team or, most importantly, our clients.

This is why Euclid Law is The Competition Law Firm of the Future.

Becket McGrath quoted in GCR article: “CMA proposes regulatory reform to combat big tech”

The UK’s Competition and Markets Authority has called for a new regime to regulate the online economy, after its digital advertising study found the market power of Google and Facebook is causing substantial harm to “society as a whole”.

The enforcer today asked the UK government to create a digital markets unit and empower it to break up big tech companies and enforce a code of conduct among online platforms to resolve competition concerns in that sector. It did not specify if the new unit should function within an existing body or be created as a new standalone regulator.

The EU enforcer launched a public consultation on its proposed market investigations tool in May. EU competition commissioner Margrethe Vestager has cited the CMA’s similar power as an efficient way of tackling competition concerns in fast-moving markets.

Euclid Law partner Becket McGrath, who advised a publisher during the UK enforcer’s market study, said it is understandable why the CMA asked the government to introduce a new regulatory regime. Conduct that is not good for competition does not necessarily infringe antitrust law, but it could be addressed through careful, targeted regulation, he said.

Combating concerns related to the market power of big tech requires difficult public policy trade-offs that extend well beyond competition law, McGrath added. 

“With all these moving pieces, there has to come a point when the CMA, as an independent and unelected agency, hands over to the government,” he said.

McGrath also questioned if the UK could effectively implement some of the CMA’s proposals without aligning with reforms emerging elsewhere, particularly in the EU. “Solutions need to be closely coordinated – it’s not good for businesses if there is too much divergence,” he warned.

To read the full article on GCR website, click here.

An array of clusters and interlacing threads (Deep dive into other technologies)

Legility and Euclid Law teamed up for a series of articles that will guide companies and their legal and compliance teams through the challenges of the Information Age.

In this fourth and last article in the series, “An array of clusters and interlacing threads (Deep dive into other technologies)”, written by Rebecca Cronin, Director at Legility (EMEA) and Marie Leppard, Partner at Euclid Law, we explore the use of culling and unsupervised learning technologies, like near-duplication, email threading and conceptual clustering. This fourth article will help you navigate through this array of powerful technologies and provides practical advice on how and when to use them.

To read the full article, click here.

Euclid Law continues to strengthen its practice in London and Brussels with hire of Becket McGrath as partner.

Euclid Law is delighted to announce Becket McGrath has joined the London office as Partner.

Prior to joining the team, Becket one of the founding partners of US firm Cooley’s London office in 2015 and established its Brussels office in 2019. Becket advises clients on all aspects of EU and UK competition law, with an emphasis on defending companies against investigations, distribution issues and merger control. 

He advises clients in a broad range of sectors, in particular media, technology and life sciences sectors. He is a leading expert on distribution issues raised by e-commerce, including in the context of selective distribution, and has advised a number of major online retailers and marketplaces on a wide range of strategic competition issues.

He has experience of enforcing UK and EU competition law at a senior level in the UK’s Office of Fair Trading (now the Competition and Markets Authority) and retains good links with enforcement agencies and regulators in the UK and across the EU.

Becket is listed as a ‘thought leader’ in the latest Who’s Who Legal/Global Competition Review directory of leading competition lawyers.

Full press release can be found here.

Is it CAR, TAR, RAR….? (Deep dive into Predictive Coding)

Inventus (EMEA) and Euclid Law teamed up for a series of articles that will guide companies and their legal and compliance teams through the challenges of the Information Age.

The third article in the series, “Is it CAR, TAR, RAR…? (Deep dive into Predictive Coding)”, written by Alex Woodrow, Director at Inventus (EMEA) and Marie Leppard, Partner at Euclid Law, explores the use of Predictive Coding in the world of compliance. This third article will help you navigate through the various models of predictive coding available and provides practical advice on how and when to use them.

To read the full article, click here.