With competition law facing a major overhaul, EU lawyers fear that entrusting more powers to national authorities may lead to clashes with the european commission.

Lucy Hickman reports on how lawyers are preparing

With a radically new competition regime scheduled to be introduced on 1 May, ground-breaking cases hitting the courts of late, and a raft of regulatory measures that have only recently begun to kick in, it is hardly surprising that specialist lawyers are struggling to keep up at the moment.

Nigel Parr, a partner at City firm Ashurst, says: 'The best bit about being a competition lawyer is that every case is very different, which makes things very interesting.

The downside of being a competition lawyer is that every case is very different - you always have to work hard to keep up and can never get into the groove of standard document forms.

'Every submission we write, for example, to the Competition Appeals Tribunal (CAT), is basically a blank-page submission.

It's a bit like writing a doctoral thesis every few months.'

Stephen Wisking, a partner at London firm Herbert Smith, says that although his department is busy, the nature of the work has changed recently.

'There has been a fall in work associated with transactions but this - and merger clearances with UK or EU competition authorities - has been replaced with work relating to investigations by the UK and EU competition authorities or advisory work for clients,' he says.

And, it seems, the way compe-tition lawyers are operating has had to change recently too.

Malcolm Nicholson, a partner at City firm Slaughter and May, says: 'There has been a swing towards too much data justification on the part of the regulators of late - they are just asking for too much.

'We're doing a merger case at the moment in Brussels and the regulators have asked us to provide 25 million price points (the price of a particular item at a particular point in time in a particular market).

Computers can generate a fair amount of these - but it's still time-consuming, and I have quite serious concerns about this being the right way to be going.'

He says it is likely that the regulators are demanding more data after three decisions on mergers made by the European competition directorate - involving Tetra Laval's purchase of Sidel, Airtours' merger with First Choice and the Schneider/Legrand merger - were all recently quashed by the European Court of First Instance.

All the lawyers predict that the new regime - expected under an EU regulation (1/2003), as part of a drive to modernise competition law - could lead to more work.

Mr Wisking says: 'Modernisation will potentially at first give rise to difficulties in terms of the processes which will need to be worked through.

This might result in more work for lawyers.'

Mr Parr agrees.

'Modernisation will lead to more work, but whether it will be good for business or not is another thing.'

The new system devolves some powers currently held by the Brussels-based competition directorate - including the application of articles 81 and 82 of the Treaty of Rome, where there is an effect on inter-state trade within the EU - to domestic authorities.

Article 81 bars agreements that hamper competition unless they meet certain exemption criteria; article 82 prohibits the abuse of a dominant market position.

National law may be applied in parallel, but member states must not make decisions under national law, the outcome of which differs from that which would be reached under Community law.

Mr Parr says different national authorities may come to different decisions based on a similar set of facts, which could lead to forum shopping by people complaining of competition law breaches.

'It is difficult.

One worries about the extent to which there will be inconsistent approaches between the different national regulators.

Reasonable regulators can reach different decisions based on not dissimilar facts.'

Other reforms include replacing the notification system - under which businesses must notify their restrictive vertical agreements to the European Commission to get an exemption - with a 'legal exception' regime, whereby agreements that fall within the prohibition but meet the exemption criteria are automatically exempt.

To get an exemption currently, it must be shown the agreement contributes to the improvement of production or distribution, or the promotion of technical or economic progress, while giving consumers a fair share of the resulting benefits.

Restrictions in the agreement must be indispensable to the attainment of these goals and the agreement must not let parties eliminate competition altogether in respect of a substantial part of the products concerned.

Mr Nicholson says that businesses will have to do their own assessment of whether their vertical agreements breach the Competition Act and will no longer have to notify the Office of Fair Trading (OFT) to get an exemption.

Other measures include requiring member states to work together to enforce competition law by exchanging data and investigating on each other's behalf, and the creation of a European Competition Network to help facilitate this.

The commission's powers of investigation are strengthened and the range of available remedies widened.

Tougher sanctions for procedural infringements are also being introduced.

Mr Nicholson warns that national authorities will struggle to be ready for the start of the new regime.

He says: 'From talking to people in other European countries, the general view seems to be that the authorities are not on top of the job.

They are not as well prepared as they should be.

The OFT was supposed to release guidelines months ago, but has failed to do so.'

Mr Parr says: 'There has to be a query over how the new member states who are just joining are going to cope given that they have no real history of competition law.

One hopes that they will be given guidance by the European Commission.'

A significant case that went to the Court of Appeal in February this year concerns the test that the OFT has to apply when deciding whether to refer transactions to the UK Competition Commission.

The court dismissed an appeal by the OFT to overturn the CAT's judgment in IBA Health v OFT.

The CAT decided that the OFT had failed to apply the correct test and conduct a proper investigation when clearing the merger of iSOFT Group and Torex.

The court found that the CAT had erred in its assessment of the test to be applied in relation to the OFT's duty to make references to the commission under the Enterprise Act 2002.

Under the legislation, the OFT must refer a case if it contends that it may be the case that, as a result of a merger, competition will be substantially lessened.

The CAT had wrongly ruled that it must also refer a merger where there is a 'credible alternative view' that the commission would find a lessening of competition.

However, the court found the CAT's conclusion that the OFT had either applied the wrong test or failed adequately to explain or justify its conclusion in accordance with the right test was correct and should be upheld.

The OFT is currently reconsidering its decision.

Mr Parr says: 'On substance, this was a victory for the OFT.

The tribunal's interpretation of the test was wrong - the real test is what the OFT believed to be the state of affairs, not what the commission might think.'

He says that if the CAT's version of the test had been upheld by the appeal court, the OFT would have to refer many more mergers to the Competition Commission.

Mr Wisking says the other significant case currently going through the system is the first application for civil damages to the CAT.

The case was brought by consumers affected by a vitamin cartel, and if successful could lead to several new damages cases brought before the CAT, says Mr Parr.

Appropriately, it seems that in the competition sector, some of the hardest-fought legal battles are in full swing, and some of the fiercest fights are between the EU and national authorities struggling to ascertain competence.

Lucy Hickman is a freelance journalist