Our first In-House Counsel or Regulator of the Month segment for 2016 focuses on the work of Natasha Franklin a Competition Lawyer at British Airways.
Q. Natasha, you were previously working as a private practice lawyer with a wider remit. What motivated you to take up the role of an in-house lawyer within the aviation sector?
A. I have worked as a private practice lawyer, where the possibility of experiencing a wide variety of industries and landmark cases certainly has its attractions, and within a regulator as a Stagiaire in DG Competition, where the opportunity to be involved in real policy or competition law change is also compelling. For me however it was during a secondment to AstraZeneca a couple of years after qualification that I realised I thrived in the fast-paced commercial workplace and wanted ultimately to take my career in that direction. In terms of aviation specifically, for a competition lawyer it’s a fascinating and varied industry with its fair share of legal questions such that I have never regretted my decision to move. I certainly had a steep learning curve though and am still learning because before starting at BA I had had little experience of the airline industry – it’s definitely never boring.
Q. How do you think competition policy has changed since you have been working within the field?
A. There has been a steady and continuous growth in international cooperation between regulators with an increasing number of countries bringing in competition laws. Commissioner Vestager has commented that continued cooperation among enforcement agencies worldwide will lead to convergence and that around 60% of the competition cases in the EU are global and require coordination. When considering cartel and other competition law risks therefore it is no longer possible to confine oneself to a handful of key countries – competition law is of global relevance and that is something all competition lawyers acting for companies with international presence now need to keep in mind.
Q. Have there been any recent changes to competition law specific to the aviation sector?
A. Following the liberalisation of the air travel sector the airline industry is now regulated from a competition law perspective like any other industry. Thus there have not been any recent EU competition law changes specific to aviation only. There has been some change in the UK in recent years in terms of enforcement, with the UK Civil Aviation Authority (CAA) now having concurrent powers with the Competition and Markets Authority (CMA) to enforce competition law in relation to airport operation services and the supply of air traffic services. That’s a positive thing I think as it’s helpful to have competition enforcers who are also industry specialists.
Q. What notable changes have you noticed in regards to distribution in the aviation sector and how do these affect your work and competition law in general?
A. As for many industries the online world is becoming increasingly relevant to the distribution of airline services. Our main concern is to ensure that our customers have full disclosure of the services, price and terms being offered to them however they choose to buy our fares, be it using ba.com, a comparison site or a travel agent. Use of the internet by suppliers, distributors and retailers is clearly a hot topic for the regulators currently, with the Commission currently reviewing online practices. I certainly welcome this focus as I do not consider the current vertical guidelines on this topic fit for purpose given how fast the internet and ways of shopping have and are evolving. Hopefully we will see more clarity and consistency across Europe on the application of competition law to internet distribution once this review process is complete.
Q. What current topics in regards to competition law are of interest to you and why?
A. Well as I’ve touched upon the Commission’s Digital Single Market (DSM) agenda and its review of online practices is something I am watching with interest as the development of the internet and its use by businesses and consumers is such an innovative and fast changing area – we need to ensure that the way competition law principles are applied is kept up-to-date and fit for purpose to encourage and not stifle that innovation. Another growing area that I am interested in is the interplay between data protection and privacy with competition laws. Again with the growth of the internet, businesses and online platforms hold increasing amounts of consumer data and are coming up with imaginative ways of harnessing it to improve their product offerings. However, in holding and using such data for themselves, are data rich companies and platforms running the risk, not only of infringing privacy laws, but also of abuse of dominance? One to watch. Finally, I’m always interested in new developments and innovation (which are often related to the use of the internet and technology tools such as apps and Ipads) in competition law compliance programmes, because for in-house lawyers prevention is always better than cure.