The Supreme Court’s decision in R (on the application of PACCAR Inc and others) (Appellants) v Competition Appeal Tribunal and others (Respondents) [2023] UKSC 28 has caused a stir in the legal industry, leaving a number of question marks over the future direction of litigation funding. In this insight, we consider how the Supreme Court’s ruling might specifically impact class actions in both the Competition Appeal Tribunal (CAT) and the High Court.

The ECJ’s recent preliminary ruling in C-211/22 - Super Bock Bebidas (“Super Bock”) is significant for businesses and competition authorities. It is well-established that categorisation of conduct as a ‘by object’ infringement of Article 101(1) TFEU must be considered by reference to whether, on a case-by-case basis, the agreement presents a sufficient degree of harm to competition. Super Bock is the first occasion on which the ECJ has applied this principle to vertical agreements fixing minimum resale prices (aka resale price maintenance, or “RPM”). In applying established principles to the vertical RPM setting, the ECJ’s analysis in Super Bock is unsurprising. However, it does formally reverse the Court’s earlier judgment in C-243/83 - SA Binon, and in doing so continues the ECJ’s retreat from assessing ‘by object’ infringements as according to their form, rather than their substance, under Article 101 TFEU. In this article we assess the impact of Super Bock, with analysis of its impact for businesses and competition authorities.