Blue Planet Holdings Ltd v Orkney Islands Council: FOI release

Information requested

The Blue Planet Holdings Ltd v Orkney Islands Council case was a private damages claim brought under section 47A of the Competition Act 1998. Blue Planet Holdings Ltd (BPH), a company involved in waste management, alleged that the Council engaged in anti-competitive behaviour, specifically an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Chapter II of the Competition Act 1998. The claim centred on the Council’s operation of waste management services and its interactions with BPH.

Background and Allegations:

• BPH claimed that the Council, which operated waste management services in a remote Scottish island region, abused its dominant position in the market for waste collection and disposal.
• Specific allegations included:
• Tampering with evidence: BPH argued that the Council manipulated or withheld documents to obscure its anti-competitive practices.
• Predatory pricing or exclusionary tactics: BPH alleged that the Council used its control over waste management infrastructure to squeeze out private competitors like BPH.
• Potential cartel-like behaviour: The judgment (page 68) acknowledged the possibility of coordinated anti-competitive conduct within the Council’s operations, although it did not conclusively establish a cartel.

1. We wish to know whether the Scottish Government was aware of the case going through the Competitions tribunal, in 2021/22 - If so when were they made aware and by whom?

2. In the Competition’ Tribunal’ judgement (page 68), the Tribunal acknowledged the possibility of coordinated anti-competitive conduct within the Council’s operations. Subsequent media reporting, including a report by a legal entity stated there were continued fears of a cartel working out of Orkney Islands Council - Did the Scottish Government do anything to investigate these concerns following the judgement - if so what, and if not, why not?

3. Were any fail safe's or “Lessons Learned’ established following the Competition’ Tribunal’ Judgement? If not, why not and if so, what action was taken?

4. Had the Scottish Government been in contact with the SPSO relating to the above Case or any other case reported to the Scottish Government, if so, please provide all correspondence relating to those interactions.

5. Had any organisations contacted the Scottish Government between 2021 to date, to lodge concerns over the possibility of a cartel working from Orkney Islands Council? If so, please provide the correspondence.

Response

1. We wish to know whether the Scottish Government was aware of the case going through the Competitions tribunal, in 2021/22 - If so when were they made aware and by whom?

Having undertaken a records and mailbox search across those teams most relevant to the question, to the best of our knowledge, the Scottish Government were not aware of this case.

2. In the Competition’ Tribunal’ judgement (page 68), the Tribunal acknowledged the possibility of coordinated anti-competitive conduct within the Council’s operations. Subsequent media reporting, including a report by a legal entity stated there were continued fears of a cartel working out of Orkney Islands Council - Did the Scottish Government do anything to investigate these concerns following the judgement - if so what, and if not, why not?

Councils are independent bodies with their own powers and responsibilities and are entirely separate from the Scottish Government. Council’s powers are set out in statute, and it is up to each local authority to manage its day-to-day business. The Scottish Government would not investigate concerns about councils. There are, however, a number of independent bodies with specific responsibilities in relation to local authorities.

For example, the Accounts Commission is the public spending watchdog for local government, helping to ensure that public money is spent properly, efficiently and effectively, and the Scottish Public Services Ombudsman is the final stage for complaints about councils and other public bodies.

Investigations into councils would be completed by these organisations rather than the Scottish Government.

3. Were any fail safe's or “Lessons Learned’ established following the Competition’ Tribunal’ Judgement? If not, why not and if so, what action was taken?

As above, councils are independent bodies with their own powers and responsibilities separate from the Scottish Government. It would therefore be for the council to consider if any fail safes or lessons learned need to be established.

4. Had the Scottish Government been in contact with the SPSO relating to the above Case or any other case reported to the Scottish Government, if so, please provide all correspondence relating to those interactions.

The Scottish Government does not get involved in or contacted about SPSO investigations. The functions of the SPSO, and the ways in which those functions are to be delivered, are set out in the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”). The SPSO investigates complaints made about public authorities in Scotland, where these fall within the remit set out in the 2002 Act. The Scottish Parliamentary Corporate Body (SPCB) funds the SPSO and the SPSO’s budget forms part of the SPCB’s overall budget. However, as an independent officeholder, the SPSO is not subject to the direction or control of the SPCB or any member of the Scottish Government (SG) or Scottish Parliament concerning its functions.

5. Had any organisations contacted the Scottish Government between 2021 to date, to lodge concerns over the possibility of a cartel working from Orkney Islands Council? If so, please provide the correspondence.

To the best of our knowledge, the Scottish Government has not received any other concerns regarding cartel working from Orkney Island Council.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.