“ATR also collects data income from offshore bookmakers on behalf of BHB. This amounts to 50% of total income after agreed costs. We do not propose any change to this arrangement.”
“If ATR is not prepared to do this, and to make these payments to BHB, or arrange for such payments to be made to BHB, we reserve the right to be exercised on 3 days written notice from us, to require you not to use our data in your services, and will take all necessary legal steps we consider appropriate to enforce our rights in this regard.”
“...in respect of your failure to offer a data licence agreement on reasonable terms or at all to our clients to use race and runner data (“the Data”) in relation to British horse racing. Please note, for the purposes of this letter, we do not raise any issue in relation to whether any rights in fact subsist within the Data. However pending final determination by the European Court of Justice in C-203/02 British Horse Racing Board Ltd and others v William Hill Organisation Ltd our client reserves its rights in this regard.”
“Your client has been informed that it will receive a data licence to be able to broadcast live racing to domestic customers via satellite and cable. The issue of this licence is not dependent on the payment of monies already owed by ATR. The licence is in draft form and will be issued to your clients shortly. In the meantime until that licence is concluded, we confirm that ATR may use BHB’s data solely for the purpose of the broadcasting of racing for which it has picture rights to domestic customers in Great Britain via satellite or cable television and for static displays of information on its web-site.”
“Your letter does not provide any details of how copyright subsists in BHB’s database and, if it does subsist, how ATR may have infringed that copyright, which allegation, if made, is denied. I believe it would be helpful if you set out the BHB’s position in writing before any meeting between us. In the meantime, I will have to reserve ATR’s position with regard to any such claim in copyright.”
“Unless it is agreed that£900 per fixture is paid on behalf of end users outside the UK and Ireland, for pre-race data provided with pictures relating to racecourses covered by [ATR] BHB has taken the decision that it will instruct SIS that it may no longer broadcast pre race data to bookmakers which do not have a BHB data licence, which for all practical purposes is SIS’ customer base. BHB is prepared, if SIS so wish it, to enter into an agreement with ATR in place of SIS. This would be a short term contract with a six month notice period, which will then allow more time to enter into negotiations for a longer term agreement. The agreement would extend to land based bookmakers only and would therefore not cover internet bookmakers who would continue to be required by BHB to enter into direct data licences. The agreement will be retroactive and cover all 2004 races for which payment has not already been made by SIS. I will send you a note of the liability under separate cover, for which BHB will also require payment by ATR under this proposal.”
“...that you have written to me in the terms of your letter, most particularly in the context of my letter of3rd December 2004 remaining unanswered. You have not been able to explain what protectable rights the BHB is entitled to enforce.”
“Finally, I am sure that you do not need to be reminded that a contract is in place between ATR and SIS which would be adversely affected by any attempts by the BHB to persuade, induce or procure SIS not to broadcast pre-race data which affects ATR’s business in any way (or indeed succeeds in doing so). Nevertheless, if the BHB does take such steps, then ATR will take such action as is available to it (including legal proceedings) to protect its position.”
“...I have no real concern over the contract in place between you and SIS, and how that might be affected by BHB’s position. The position is very straightforward. SIS, under its existing contractual arrangements with BHB, is only permitted to make use of the data taken from BHB’s database and deliver it to third parties, if those third parties have concluded a data licence with BHB. In the absence of the conclusion of such data licences, BHB has the contractual right, as you are aware, and which has been in place from well before your contract with SIS, to require SIS to cease supplying those unauthorised end users. Whilst BHB receives the relevant payments for use of its data within the services provided by SIS, it can be prepared to consider forgoing the need for there to be a data licence in place with the relevant end users. However in the absence of such payment, or other contractual arrangements protecting BHB’s rights, BHB has no alternative but to enforce its rights, and require SIS not to supply data to third parties who do not have such a concluded data licence in place. BHB has similar agreements in place, most notably with PA. PA is not permitted to supply unauthorised users with BHB’s data. If no licence(s) are in place with ATR, BHB is entitled to require its authorised suppliers not to supply data to ATR.... In the light of this I invite you to revisit the proposal in my 10 February letter.”
“BHB’s requirement is either that ATR only supplies data to bookmakers who have a direct agreement with BHBE [the Second Claimant] or itself agrees with BHBE to collect from each bookmaker and pay to BHBE a fee amounting to 1.5% of turnover or 10% of gross profit derived from that bookmaker’s British horse race betting business or, alternatively, to pay to BHBE a collective sum of£1,800.00 for each fixture in respect of which data is supplied. In addition, it would be required to pay 10% of the profit it receives from the bookmaker for that service.”
“(i) market definition: defining the relevant product market and the relevant geographic market (which must comprise at least a substantial part of the common market) in which the market power of the allegedly dominant undertaking is to be assessed; (ii) market share analysis: establishing the market share of the undertaking in question on the relevant market so defined; (iii) analysis of competitive constraints: assessing the significance attributable to the market share of the undertaking in question and in particular whether it is likely to be eroded by actual or potential competitors.”
“2.5 The process of defining a market typically begins by establishing the closest substitutes to the product (or group of products) that is the focus of the investigation. These substitute products are the most immediate competitive constraints on the behaviour of the undertaking supplying the product in question. In order to establish which products are 'close enough' substitutes to be in the relevant market, a conceptual framework known as the hypothetical monopolist test (the test) is usually employed. … 2.7 In essence the test seeks to establish the smallest product group (and geographical area) such that a hypothetical monopolist controlling that product group (in that area) could profitably sustain 'supra competitive' prices, i.e. prices that are at least a small but significant amount above competitive levels. That product group (and area) is usually the relevant market. 2.8 If, for example, a hypothetical monopolist over a candidate product group could not profitably sustain supra competitive prices, then the candidate product group would be too narrow to be a relevant market. If, on the other hand, a hypothetical monopolist over a subset of a candidate product group could profitably sustain supra competitive prices, then the relevant market would usually be narrower than the candidate product group. 2.9 The steps in applying this approach are as follows. We start by considering a hypothetical monopolist of the focal product (i.e. the product under investigation) which operates in a focal area (i.e. an area under investigation in which the focal product is sold). 2.10 We then ask whether it would be profitable for the hypothetical monopolist to sustain the price of the focal product a small but significant amount (e.g. 5 to 10 per cent) above competitive levels. If the answer to this question is 'yes', the test is complete. The product and area under the hypothetical monopolist's control is (usually) the relevant market. 2.11 If the answer to this question is 'no', this is typically because a sufficiently large number of customers would switch some of their purchases to other substitute products (or areas). In this case, we assume further that the hypothetical monopolist controls both the focal product and its closest substitute. We then repeat the process, but this time in relation to the larger set of products (or areas) under the hypothetical monopolist's control. 2.12 As before, we ask whether it would be profitable to sustain prices 5 to 10 per cent above competitive levels. If so, the test is complete. The relevant market is (usually) the focal product and its closest substitute. If not, we assume that the hypothetical monopolist also controls the second closest substitute to the focal product and repeat the process once more. We continue expanding the product group in this way (i.e. by adding the next best substitute) until we have found a group of products (or areas) for which it is profitable for the hypothetical monopolist to sustain prices 5 to 10 per cent above competitive levels (by adding the next best substitute).”
“9.10 …what is being purchased is the ability to create value from British racing…” “10.1 … the relevant product that ATR consumes in this case is the ability to create value from the whole show of British racing, separate and distinct from the mechanism by which that can be obtained, or more correctly, legitimately withheld. That mechanism is the pre-race data sourced from the BHB Database, whether by direct access to the BHB Database or delivery via PA in this case.” “10.6…Thus, in providing a high value whole show, BHB (and to an extent the Jockey Club) have to perform a governance role that ensures integrity, meritocracy, competitive balance, and solidarity and fixture co-ordination between courses, whilst ensuring that the conflicting needs of the different consumers and users (TV, bookmakers, owners, racegoers etc) are met and balanced.” “10.7… It is the whole show that generates value for users and it is access to this whole show that users are buying and selling to others. It is the aggregate activities of the BHB and Jockey Club that generate the (value of) the whole show.” “12.2…The first step, the definition of the relevant product (what the OFT call the focal product), seeks to identify what customers actually consume. The Claimants see the relevant product as Pre Race Data. However what they are actually consuming is a relevant product defined more widely, since the data allows them the opportunity to create value from British racing (whole show). For convenience the relevant product is hereafter called British racing.” “14.16…Thus the relevant product should more correctly be seen as the opportunity to create value from the British racing whole show.”
“BHB’s primary case is that it is a crucial first step in the analysis to realise that the product being consumed is not just any old data (“low-grade” data as ATR put it in opening…) but is British racing data, with all the costs, value, quality and attributes associated with that product. That product includes both British racing data and British racing pictures. It is that product as a whole that allows bookmakers (UK and overseas) to accept bets on British racing. Accordingly, it is that product which creates the positive externality for which payment must be made via BHB’s data charge.”
“The economist witnesses called on behalf of the respondents took a different view. Although each of them expressed himself in his own way we think it is fair to say that, on what may be called the cartel argument, they all took a line which accords with the following passage in the first report of Professor Yamey, who was called on behalf of the Premier League: 2.2 …In several important respects the collective licensing arrangements, viewed as a set of economic/commercial arrangements, are quite different from the ordinary business cartel. 2.3 In a widgets cartel, the cartel itself produces no output that is distinct from and additional to the outputs of the cartel members. Competition between widget manufacturers is desirable because it benefits the public as consumers by generating better and cheaper products. By contrast the FAPL [Football Association Premier League Ltd] produces a product, the PL [Premier League] competition, i.e. the PL championship, which no single PL club can produce, nor even any sub-set of PL clubs. It is a product that is jointly, i.e. collectively, produced by the PL clubs. Even the least successful of the least popular clubs contribute to the PL collective product. Each club has an interest in the PL competition no greater nor less than any other. The bottom clubs can and do spring surprises playing against the top ones. Each club plays an integral part in all aspects of the competition no greater nor less than any other. The bottom clubs can and do spring surprises playing against the top ones. Each club plays an integral part in all aspects of the competition, in determining the championship, those who qualify for European competition and those to be relegated. 2.4 Moreover the derived products stemming from the PL competition, the individual PL matches, are such that no single PL club can produce a unit of output: it takes two clubs to produce a match. It takes only one widget manufacturing firm to produce a widget. 2.5 The PL competition consists of a series of inter-connected matches extending over a season. In a given season the public’s interest in a particular PL match depends in part on the outcomes of all the preceding PL matches and on the state of the PL league table. 2.6 More generally, the value of the television rights in any particular match is affected by the value of the PL product itself, i.e. the PL competition, and the public’s interest and enthusiasm it succeeds in generating. Other things being equal, the less interest the PL competition is generating, the less valuable are the television rights in any one PL match. This consideration applies to the broadcasting of live matches and also of highlight programmes. ”
“The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.”
“According to settled case-law, for the purposes of applying Article [82] of the Treaty, the relevant product or service market includes products or services which are substitutable or sufficiently interchangeable with the product or service in question, not only in terms of their objective characteristics, by virtue of which they are particularly suitable for satisfying the constant needs of consumers, but also in terms of the conditions of competition and/or the structure of supply and demand on the market in question (Case 31/80 L’Oreal [1980] ECR 3775, paragraph 25; Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 37;Case C-62/86 AKZO Chemie v Commission[1991] ECR I-3359 , paragraph 51;Case T-30/89 Hilti v Commission[1991] ECR II-1439 , paragraph 64, andCase T-83/91 Tetra Pak v Commission[1994] ECR II-755 , paragraph 63).”
“96. The foregoing cases indicate that the relevant product market is to be defined by reference to the facts in any given case, taking into account the whole economic context, which may include notably (i) the objective characteristics of the products; (ii) the degree of substitutability or interchangeability between the products, having regard to their relative prices and intended use; (iii) the competitive conditions; (iv) the structure of the supply and demand; and (v) the attitudes of consumers and users. 97. However, this check list is neither fixed, nor exhaustive, nor is every element mentioned in the case law necessarily mandatory in every case. Each case will depend on its own facts, and it is necessary to examine the particular circumstances in order to answer what, at the end of the day, are relatively straightforward questions: do the products concerned sufficiently compete with each other to be sensibly regarded as being in the same market? Are there other products which should be regarded as competing in the same market? The key idea is that of a competitive constraint: do the other products alleged to form part of the same market act as a competitive constraint on the conduct of the allegedly dominant firm?”
“A reasonable price to ATR for the use of the BHB database would raise only as much revenue as is required to fund ATR’s appropriate share of the total revenue requirement that is needed to keep the database operating. I approach this problem below by sharing the estimated BHB revenue requirement proportionally to the turnover of various users on services that depend on BHB database. Consistently with this approach, the costs of upkeep of the database and the associated investments can be shared as follow…. Table 2 179. Turnover generated on British horse races and database cost split by user, year 2005 (£’000) Turnover % of Total Turnover Contribution to database Database cost (Weatherbys) 5,248 Contribution from: UK bookmakers 6,533,333 89.81% 4,713.3 Irish bookmakers 593,393 8.16% 428.1 South African bookmakers 43,103 0.59% 57.5 Italian bookmakers 19,909 0.27% 31.1 ATR International 2,279 0.03% 1.6 SIS Facts 2,767 0.04% 2.0 According to the estimates provided in Table 2, the price that ATR should pay for using BHB’s database “utility” is approximately£1,600 per year, plus an appropriate share of the£119,700 due from bookmakers in Italy, South Africa, and other countries. (This can be compared to the£52,000 per annum paid by ATR to PA for the supply of the data). The great majority of the database revenue should come from the UK bookmakers whose betting turnover on British horse racing naturally greatly exceeds that from overseas bookmakers.”
“5.1 …Economic relationships have… effects that go beyond trading or other relationships and affect third parties or “bystanders”
“9.2 The benefit that is provided to bookmakers by high quality racing is significant… Absent the Levy, this would be a free positive externality for bookmakers and punters, obtained as a by-product of British Racing. Absent a market and correspondingly a price being placed on the value of British racing to bookmakers and other users, it is not possible for racing to supply or users to demand what they want. In economic terms, the Levy is an attempt to create such a market by administrative means. 9.3 Accordingly, the purpose of the Levy and of any subsequent commercial mechanism is broadly a payment by bookmakers for the ability to create value from British racing. The funds, so raised, are required to improve the quality and integrity of racing and the breed… 9.4 The aims of the BHB and the Horserace Betting Levy Board (HBLB) are very broadly similar. 9.5 The Levy, created as it was in the early 1960’s, applied to LBO bookmakers and did not foresee subsequent technological developments in media and betting opportunities for creating value from British racing. Nevertheless, the principle underlying the Levy (a payment for the externality) applies equally to all the additional ways that users now create value from British racing. 9.6 The commercial mechanism which has been developed at the instigation of the Government to replace the Levy has a wider scope than the Levy. It is designed to ensure payment for the positive benefits (externalities) provided by racing to third parties generally, for example the media, and not just for the benefits provided by racing to LBO bookmakers. The commercial mechanism has a further advantage over the Levy. As it is a freely negotiated market price it will (providing that the externalities can be priced as a consequence of the ability to exclude those who seek to create value from British racing) give rise to a preferable outcome for all users compared to the administratively set price of the Levy. 9.7 The commercial mechanism is in effect the means by which the positive externalities conferred upon third parties are priced efficiently. It is irrelevant whether those third parties were or were not covered by the Levy or whether they are defined as a bookmaker or not. Those who benefit from British racing should pay for that ability to create value from British racing. 9.8 It is important to recognise that what is being provided to ATR and others is the ability to create value from British racing. Control of access to the BHB Database is the mechanism by which BHB is able to withhold the ability to create value. The essence of any efficient transaction on price is that the seller can refuse to sell and the buyer can refuse to buy. As explained earlier, BHB’s coordinating role and its broad representative structure enables that transaction to take place efficiently.”
“6. As a matter of welfare economics it is generally desirable that an externality is priced. Externalities can be priced (i.e. internalised) by regulation/tax or by voluntary negotiation between the parties affected.” “9. All things being equal, the greater is the size of the externality, the greater are the economic benefits for society of pricing or otherwise internalising the externality.” “1 0. A financial contribution to the racing industry by bookmakers and other “users” of racing can provide a mechanism by which beneficiaries can influence the quantity and quality of racing.”
“ … prices and profits may be high in markets where there is innovation. Successful innovation may allow a firm to earn profits significantly higher than those of its competitors. However, a high return in one period could provide a fair return on the investment in an earlier period required to bring about the innovation. These costs include investment in research and development and should take into account the risk at the time of the investment that the innovation might have failed.”
“2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.”
“Neither the Chapter I prohibition nor the Chapter II prohibition applies to an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly in so far as the prohibition would obstruct the performance, in law or in fact, of the particular tasks assigned to that undertaking.”
“When considering the substitutes of a wholesale product, it may be necessary to consider substitution possibilities at the downstream level. For example, suppose a supplier produces a wholesale product A which is a necessary input for supply of a retail product B. Suppose also that a vertically integrated supplier that does not supply a substitute wholesale product supplies a product C which is a substitute for B at the retail level. The ability of customers to substitute to product C from product B at the retail level may constrain the ability to raise the price of the wholesale product A.”
“Horse racing is, at the very least, substitutable with a wide range of other sports... This indicates that many other sports rights should be considered within the same relevant market as that in which the sale and purchase of the Rights takes place. In terms of the ‘hypothetical monopolist test’, the price that the Courses may charge for the Rights is constrained to the competitive level, in the first instance, by the availability of rights to broadcast a wide range of other sports. Moreover, the ultimate objective of the purchasers of such rights is to produce programming that interests and entertains viewers…. From a demand side perspective, these types of rights are clearly substitutable…. The Applicants also consider that the amount that the Courses may charge for the Rights is constrained by the ability of potential purchasers of the Rights to purchase rights to a wide variety of other types of video programming rights, including, for example, movies, game shows, and other light / general entertainment programming… The geographic scope of the market for the supply of rights to video programming is national, or at most the UK and Ireland. Programming rights are, in general, defined on a territory-by-territory basis by rights owners as a result of linguistic, regulatory and economic factors”
“The geographic scope of the relevant market is best considered to be world-wide, although the commercial behaviour of the BHB has effectively segmented the market in three regions: the UK, the Republic of Ireland, and overseas countries.”
“It is well established that such a special responsibility may deprive a dominant undertaking of the right to adopt a course of conduct that would be unobjectionable if adopted by a non-dominant undertaking (Case T-111/96 ITT Promedia v Commission[1998] ECR II-2937 , paragraph 139), but the actual scope of that special responsibility must be considered in the light of the specific circumstances of each case: Compagnie Maritime Belge[2000] ECR I-1365 at paragraph 114. We for our part accept and follow the opinion of Mr Advocate General Fennelly in Compagnie Maritime Belge, cited above, that the special responsibility of a dominant undertaking is particularly onerous where it is a case of quasi-monopolist enjoying “dominance approaching monopoly”, “superdominance” or “overwhelming dominance verging on monopoly”[2000] ECR I-1365 at paras 132 and 137”
“Undertakings that are not dominant are generally free to choose for themselves the parties with whom they wish to enter into contractual relations. In the case of dominant undertakings, however, that freedom may be curtailed and a refusal to deal may constitute an abuse of dominance. An offer to supply only on terms that the supplier knows to be unacceptable will be a constructive refusal to supply. The precise boundaries of the circumstances in which a dominant undertaking’s refusal to deal may constitute an abuse remain to be determined. However, it is clear that, in the absence of objective justification, a refusal to supply an existing customer will be an abuse, as will a refusal to grant access to essential facilities;”
“..a competitor is unable practically or reasonably to duplicate the essential facility. It is not sufficient that duplication would be difficult or expensive, but absolute impossibility is not required.”
“…intervention of that kind, whether understood as an application of the essential facilities doctrine or, more traditionally, as a response to a refusal to supply goods or services, can be justified in terms of competition policy only in cases in which the dominant undertaking has a genuine stranglehold on the related market. That might be the case for example where duplication of the facility is impossible or extremely difficult owing to physical, geographic or legal constraints or is highly undesirable for reasons of public policy.”…( my emphasis)”
“Currently, British racecourses cannot independently exploit the basic, but commercially most important, information relating to their activities, namely race and runners data. This is the essential data concerning an individual race and the horses running in it that a bookmaker needs to take bets on a race. This is a key asset, as all bookmakers need this data. This data is currently only available from the BHB. While a bookmaker may buy live coverage rights direct from racecourses, it must go to the BHB for the corresponding data. Racecourses are therefore dependent on the BHB for the largest part of their income. There is an effective monopoly in the supply of this data, a position that the OFT considers is created and maintained by the operation of the Orders and Rules.” vi) BHB said in its response to the OFT that it was the only source of the data relating to horses taking part in horse races and that “there are no other sources of the data, which belongs to the BHB”. vii) BHB in its board meeting in January 1999 considered that it would not be appropriate to undertake a “quantum leap” in income from pre-race information as this might be considered to be an abuse by BHB of its “monopoly”
“2.1 The charging of excessive selling prices…by a dominant undertaking may be an infringement of the Chapter II prohibition. … 2.3 An important area where excessive prices might be viewed as an abuse is where a dominant undertaking is exploiting its ownership of an essential facility, an important network facility which is unlikely to face competition in the foreseeable future. In addition to having no relation to the economic value of the product supplied, such excessive prices might make it more difficult for undertakings (that require the product as an input) to enter and compete in related markets. … 2.6 An undertaking’s prices in a particular market can be regarded as excessive if they allow the undertaking to sustain profits higher than it could expect to earn in a competitive market (in this guideline called supra-normal profits). … … 2.14 As explained above, supra-normal profits are profits earned in a particular market which are sustained at a level in excess of the risk-adjusted cost of capital for investment in the business serving that market.”
“390. In paragraph 203 of the Decision, the Director states that, as a matter of principle a price is excessive for the purposes of the Chapter II prohibition: “if it is above that which would exist in a competitive market and where it is clear that high profits will not stimulate successful new entry within a reasonable period. Therefore, to show that prices are excessive, it must be demonstrated that (i) prices are higher than would be expected in a competitive market, and (ii) there is no effective competitive pressure to bring them down to competitive levels, nor is there likely to be” 391. While there may well be other ways of approaching the issue of unfair prices under section 18(2)(A) of the Act, the Director’s starting point, as stated in paragraph 203 of the Decision, seems to us to be soundly based in the circumstances of the present case. 392. Measuring whether a price is above the level that would exist in a competitive market is rarely an easy task. The fact that the exercise may be difficult is not, however, a reason for not attempting it. In the present case, the methods used by the Director are various comparisons of (i) Napp’s prices with Napp’s costs, (ii) Napp’s prices with the costs of its next most profitable competitor, (iii) Napp’s prices with those of its competitors and (iv) Napp’s prices with prices charged by Napp in other markets. Those methods seem to us to be among the approaches that may reasonably be used to establish excessive prices, although there are, no doubt, other methods. … 400. It is therefore established, on the facts of this case, that during the period of infringement Napp charged significantly higher prices in the community segment than in other markets or segments where it faced competition, and has significantly higher margins in the community segment than its most profitable competitor. In addition, Napp faced no competitive pressure on its prices in the community segment, had no patent protection, and enjoyed a market share of 96 percent throughout. 401. The fact that the Director has not chosen to rely on other comparators such as international price comparisons or returns on capital does not in our view lessen the force of the comparators upon which he does rely. Napp itself has not, in the notice of appeal, put forward any other comparators. 402. On those facts we are satisfied that Napp “has made use of the opportunities arising out of its dominant position in such a way as to reap trading benefits which it would not have reaped if there had been normal and sufficiently effective competition”, so as to satisfy the test of abuse as laid down by he Court of Justice in United Brands at para 249 of its judgment. 403. To put the matter in terms of the principle set out at paragraph 203 of the Decision, in our view the above facts demonstrate (i) that, during the period of the infringement, Napp’s prices in the community segment were significantly higher than would be expected in a competitive market; and (ii) that, during the period of the infringement, there was no significant competitive pressure to bring them down to competitive levels, nor was there likely to be over any reasonable time scale.” “if it is above that which would exist in a competitive market and where it is clear that high profits will not stimulate successful new entry within a reasonable period. Therefore, to show that prices are excessive, it must be demonstrated that (i) prices are higher than would be expected in a competitive market, and (ii) there is no effective competitive pressure to bring them down to competitive levels, nor is there likely to be”
“applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage”
“Discriminatory pricing can be described as the supply or purchase of units of goods or services at different prices which do not correspond with differentials in supply costs”
“BHB regarded broadcasters and information providers as being in an entirely separate category from bookmakers or distributors. Information providers … generate interest in British racing, as do broadcasters. Further, such users derive less value from British racing by having access to data, in contrast to, for example, bookmakers. Thus the fee charged to them is only a nominal sum, which is intended merely to give rise to the need for a written licence to be entered into containing the basic terms which BHB insists on being included.”
“As regards the problems relating to the safety of consumers and therefore the reputation of the model, the solution can only be legislative. If there is a gap in the British system of type approval - the apparent lack of a right on the part of a manufacturer or any authority appointed to that effect to check that a conversion has been properly carried out after the issue of the certificate of conformity - the solution must be found in the adoption of appropriate laws or regulations, and not in a measure which by distorting the normal competition represented by prices of re-imported vehicles…amounts to depriving dealers and therefore private individuals of the possibility of purchasing vehicles at a lower price.”