About the Tribunal
- How does the Tribunal deal with cases?
- Cases are heard before a Tribunal consisting of three members: either the President or a member of the panel of chairmen and two ordinary members. The members of the panel of chairmen are judges of the Chancery Division of the High Court and other senior lawyers. The ordinary members have expertise in law, business, accountancy, economics and other related fields.
The Tribunal's jurisdiction extends to the whole of the United Kingdom.
The current functions of the Tribunal are:
- To hear appeals on the merits in respect of decisions made under the Competition Act 1998 (as amended by the Competition Act 1998 and other enactments (Amendment) Regulations 2004) by the Office of Fair Trading ("OFT") and the regulators in the telecommunications, electricity, gas, water, railways and air traffic services sectors;
- To hear actions for damages and other monetary claims under the Competition Act 1998;
- To review decisions made by the Secretary of State, OFT and the Competition Commission in respect of merger and market references or possible references under the Enterprise Act 2002;
- To hear appeals against certain decisions made by OFCOM and/or the Secretary of State under:
1. Part 2 (networks, services and the radio spectrum) and sections 290 to 294 and
Schedule 11 (networking arrangements for Channel 3) of the Communications Act 2003;
2. The Mobile Roaming (European Communities) Regulations 2007 (S.I. 2007 No. 1933).
The purpose of the Competition Act
The Competition Act prohibits:
- Certain agreements or concerted practices which may affect trade within the United Kingdom and have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom (Section 2 of the Competition Act, often referred to as ‘the Chapter I prohibition’);
- The abuse of a dominant position in a market if it may affect trade within the United Kingdom (Section 18 of the Competition Act often referred to as ‘the Chapter II prohibition’).
These provisions may be enforced by the OFT who may give directions for bringing the infringement to an end and impose penalties of up to 10 per cent of the turnover of the undertaking involved. Similar powers are exercisable by the regulators in the telecommunications, electricity, gas, water, railways and air traffic services sectors.
The Chapter I and Chapter II prohibitions are the United Kingdom domestic law equivalent of Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU") (formerly Articles 81 and 82 of the Treaty establishing the European Community):
- Article 101 prohibits agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition within the Internal Market and which may affect trade between Member States;
- Article 102 prohibits the abuse by one or more undertakings of a dominant position in the Internal Market or in a substantial part of it insofar as it may affect trade between Member States.
Following the entry into force of Council Regulation 1/2003/EC and the amendment of the Competition Act (by the Competition Act and other enactments (Amendment) Regulations 2004), the OFT and the regulators that have concurrent jurisdiction to apply the Competition Act may use their powers of investigation and enforcement under the Competition Act in relation to Articles 101 and 102.
The right of appeal under the Competition Act
- Who may appeal to the Tribunal under the Competition Act?
- Any party to an agreement in respect of which the OFT (or sectoral regulator) has made a decision
- Any person in respect of whose conduct the OFT (or sectoral regulator) has made a decision
- Any third party (or the representative of third parties) who the Tribunal considers has a sufficient interest (or is representative of persons having such an interest) in a decision made by the OFT (or sectoral regulator).
Under sections 46 and 47 of the Competition Act an appeal to the Tribunal may be made by:
Under Sections 46 and 47 of the Competition Act, certain decisions taken by the OFT (or sectoral regulator) may be appealed to the Tribunal. The Tribunal may confirm, set aside, or vary the OFT’s decision, or remit the matter to the OFT, or make any other decision that the OFT could have made.
Sections 46(3) and 47(1) of the Competition Act contain lists of decisions taken by the OFT (or sectoral regulator) which may be subject to an appeal to the Tribunal. These include any decision:
- As to whether the Chapter I prohibition has been infringed;
- As to whether the prohibition in Article 101 of the TFEU has been infringed;
- As to whether the Chapter II prohibition has been infringed;
- As to whether the prohibition in Article 102 of the TFEU has been infringed;
- Cancelling a block or parallel exemption;
- Withdrawing the benefit of a block exemption regulation of the EC Commission pursuant to Article 29(2) of Council Regulation 1/2003/EC;
- As to the acceptance, release, non-release or variation of commitments under section 31A of the Competition Act;
- As to the imposition of any penalty under section 36 of the Competition Act or as to the amount of any such penalty.
Appeals may also be made:
- In respect of directions given by the OFT (or sectoral regulator) under sections 32 and 33 of the Competition Act in order to bring an infringement of the Chapter I or Chapter II prohibitions to an end;
- In respect of interim measures ordered by the OFT (or sectoral regulator) under section 35 of the Competition Act or a refusal by the OFT (or sectoral regulator) to grant interim measures.
The Secretary of State has power to add to the list of decisions that may be appealed.
The Tribunal's powers under the Competition Act 1998
The Tribunal has wide powers to determine most appeals under the Competition Act on their merits and may:
- Confirm or set aside all or part of the decision;
- Remit the matter to the OFT (or the sectoral regulator);
- Impose, revoke or vary the amount of any penalty;
- Give such directions, or take such other steps as the OFT (or sectoral regulator) could have given or taken, or
- Make any other decision which the OFT (or sectoral regulator) could have made.
If the Tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based.
In respect of appeals concerning the acceptance, release, non-release or variation of commitments, the Tribunal has power to determine such appeals in accordance with judicial review principles and may:
- Dismiss the appeal or quash the whole or part of the decision to which it relates; and
- Where it quashes the whole or part of that decision, remit the matter back to the OFT (or the sectoral regulator) with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
Except in the case of an appeal against the imposition or the amount, of a penalty, the making of an appeal to the Tribunal does not suspend the effect of the decision to which the appeal relates, unless the Tribunal orders otherwise.
Claims for damages or other monetary claims under the Competition Act 1998
Under section 47A of the Competition Act (inserted by section 18 of the Enterprise Act 2002) any person who has suffered loss or damage as a result of an infringement of either UK or European Union competition law may bring a claim for damages or for a sum of money before the Tribunal in respect of that loss or damage.
Such claims may only be brought in relation to loss or damage suffered as a result of infringement of the following prohibitions:
- The Chapter I and Chapter II prohibitions;
- Articles 101 and 102 of the TFEU.
In general claims may only be brought before the Tribunal when the relevant competition authority (namely the OFT or sectoral regulator or the European Commission) has made a decision establishing that one of the relevant prohibitions has been infringed, and any appeal from such decision has been finally determined.
Under section 47B of the Competition Act (inserted by section 19 of the Enterprise Act), claims under section 47A may be brought by certain specified bodies on behalf of consumers.
The purpose of the Enterprise Act: mergers and market investigations
Amongst other things the Enterprise Act sets out the rules relating to the review of the competition aspects of mergers and the rules relating to investigations into markets in the United Kingdom. These rules are principally enforced by the OFT and the Competition Commission.
Initial investigations into mergers are carried out by the OFT. If the OFT believes that a merger has resulted or may be expected to result in a substantial lessening of competition within any market in the United Kingdom or a part of it, it must make a reference to the Competition Commission. The Competition Commission then investigates the matter further and produces a report on the merger. If the Competition Commission determines that the merger has resulted or may be expected to result in a substantial lessening of competition its report must set out what action, if any, the Competition Commission proposes to take with a view to preventing the substantial lessening of competition or to remedy or mitigate the situation. In certain circumstances, the Secretary of State may intervene and take decisions on public interest grounds.
In relation to market investigations, the OFT, any of the sectoral regulators (including for this purpose, the Civil Aviation Authority), and in some circumstances a Minister, may make a reference to the Competition Commission to investigate a specific market in the United Kingdom. The grounds for making a reference arise where there is a suspicion that one or more features of a market prevents, restricts or distorts competition in relation to the supply or acquisition of goods or services in the United Kingdom.
The right to apply to the Tribunal for a review of merger and market investigation decisions
Under sections 120 (mergers) and 179 (market investigations) of the Enterprise Act, any person aggrieved by a decision of the OFT, the Secretary of State or the Competition Commission in connection with a reference or possible reference, may apply to the Tribunal for a review of that decision.
In addition, under section 114, the imposition of a penalty by the Competition Commission for a person’s failure to comply with a notice to provide evidence may be appealed to the Tribunal.
- In reviewing the relevant decision, the Tribunal may:
- Dismiss the application, or quash the whole or part of the relevant decision; and
- Where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
How does the Tribunal deal with reviews?
In relation to its review of a merger or market investigation decision the Tribunal applies the same principles as would be applied by a court on an application for judicial review. The procedure to be followed in making an application for a review of a relevant decision are set out in the Tribunal Rules of Procedure and in the Tribunal Guide to Proceedings.
The European Common Framework
- Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities;
- Directive 2002/20/EC on the authorisation of electronic communications networks and services;
- Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services;
- Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services.
In February 2002 the European Parliament and Council of Ministers enacted four Directives designed to create a common regulatory framework for electronic communications networks services.
Those Directives are:
A significant number of the obligations imposed by the European common electronic communications regulatory framework on the United Kingdom are implemented by the provisions of the Communications Act.
Part 2 of the Communications Act confers power on the Office of Communications ("OFCOM") to regulate electronic communications networks and services by the setting, modification or revocation of general or specific conditions of entitlement to provide such networks or services in accordance with section 45 of that Act. Part 2 of the Communications Act also confers power on OFCOM relating to the use of the radio spectrum.
Decisions under Part 2 of the Communications Act that may be appealed (by a person affected) to the Tribunal in accordance with the Tribunal’s Rules of Procedure are set out in section 192 and include:
- Decisions in relation to a condition of entitlement made by OFCOM under Part 2 of the Communications Act;
- Decisions under the Communications Act and the Wireless Telegraphy Acts 1949 and 1998 governing the use of the radio spectrum.
Section 192 also applies to certain decisions made by the Secretary of State under the following provisions of the Communications Act:
- Section 5 (directions in respect of networks and services functions);
- Section 156 (directions to OFCOM with respect to the radio spectrum);
- Section 109 (restrictions and conditions subject to which the electronic communications code applies);
- Section 132 (suspension or restriction of a communication provider’s entitlement).
Appeals may also be brought by a Channel 3 licence holder against a decision made by OFCOM pursuant to sections 290 to 294 and Schedule 11 concerning the competition aspects of networking arrangements. Networking arrangements apply to all holders of regional Channel 3 licences and allow programmes made, commissioned or acquired by a Channel 3 licensees to be made available to all other regional Channel 3 licensees. They are intended to enable regional Channel 3 services (taken as a whole) to compete effectively with other television programme services provided in the United Kingdom.
Decisions that may not be appealed to the Tribunal are specified in Schedule 8 to the Communications Act and are principally either decisions that do not have an immediate effect on a person, but are of a legislative or quasi legislative nature that require a further act or decision to be given effect, or decisions on matters which fall outside the scope of the EC Communications Directives. They include decisions to institute bring or carry on any criminal or civil proceedings, or to carry out any preliminary steps towards instituting such proceedings.
For the purposes of Section 192 and Schedule 8 of the Communications Act in relation to appeals, references to a decision under an enactment include references to a failure to make a decision and to a failure to exercise a power or to perform a duty - although this is the case only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty (section 192(7)).
The Tribunal's powers under the Communications Act
The Tribunal must decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal (section 195(2)) and in accordance with the Tribunal’s Rules of Procedure.
The Tribunal’s decision must include a decision as to what (if any) is the appropriate action for the decision maker to take in relation to the subject-matter of the decision under appeal and shall remit the decision under appeal to the decision maker with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision (section 195(3) and (4)).
In the case of an appeal against a decision given effect to by a restriction or condition set by regulations under section 109 of the Communications Act, the Tribunal must take only such steps as it considers are not detrimental to good administration (section 195(7).
Price control matters under the Communications Act
If an appeal raises a price control matter as specified in the Tribunal’s Rules of Procedure (as amended by the Competition Appeal Tribunal (Amendment and Communications Act Appeals Rules 2004)), the Tribunal must, before reaching its decision, refer the matter to the Competition Commission for determination in accordance with the Tribunal’s Rules and any direction of the Tribunal (section 193). In its decision on the appeal the Tribunal must follow the Competition Commission’s determination concerning the price control matter unless that determination would fall to be set aside applying the principles applicable on a claim for judicial review (section 193(7)).
Broadcasting Act Licences: Conditions relating to competition matters
OFCOM has power by virtue of section 316 of the Communications Act and the Broadcasting Acts (of 1990 and 1996) to impose or vary the conditions of a Broadcasting Act licence to ensure fair and effective competition.
Section 317(6) of the Communications Act provides that any person affected by a decision by OFCOM to exercise any of its Broadcasting Act powers for a competition purpose may appeal to the Tribunal against so much of that decision as relates to the exercise of that power for that purpose.
Appeals under The Mobile Roaming (European Communities) Regulations 2007 (S.I. 2007 No. 1933) (“the 2007 Regulations”)
The 2007 Regulations implement Articles 8 and 9 of Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile telephone networks within the Community and amending Directive 2002/21/EC (“the EU Mobile Roaming Regulation”) (OJ No. L171, 29.6.2007, p32) and designate OFCOM as the national regulatory authority for the purposes of the EU Mobile Roaming Regulation.
Regulation 14 of the 2007 Regulations provides that a person affected by a decision of OFCOM under the EU Mobile Roaming Regulation or the 2007 Regulations may appeal that decision to the Tribunal.
Regulation 15 of the 2007 Regulations provides that the Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.
Appeals under The Authorisation of Frequency Use for the Provision of Mobile Satellite Services (European Union) Regulations 2010 ("the 2010 Regulations")
The 2010 Regulations implement in the United Kingdom the European Parliament and Council Decision 626/2008/EC of 30 June 2008 (OJ No.L172, 2.7.2008, p.15-24) on the selection and authorisation of systems providing mobile satellite services and the Commission Decision 2009/449/EC of 13 May 2009 (OJ No.L149, 12.6.2009, p.65-68) on the selection of operators of pan-European systems providing mobile satellite services.
Regulations 10 to 12 of the 2010 Regulations provide that a person affected by a decision of OFCOM under these regulations, other than decisions taken by OFCOM under regulation 13, may appeal that decision to the Tribunal. Decisions of the Tribunal may be appealed to the Court of Appeal or the Court of Session in Scotland.
Proceedings under The Payment Services Regulations 2009 (SI No. 209) ("the 2009 Regulations")
The 2009 Regulations implement Directive 2007/64/EC of the European Parliament and of the Council on payment systems in the internal market (OJ No.L319, 5.12.2007, p.1).
Part 8 of the 2009 Regulations makes provision in relation to access to payment systems. Regulation 96 sets out the scope of the application of the Part and regulation 97 prohibits restrictive rules on access to payment systems. Regulations 98 to 109 confer functions on the OFT in relation to the supervision and enforcement of the prohibition in regulation 97.
Regulation 106 of the 2009 Regulations provides that a person affected by a decision of the OFT under regulation 104(1) or 105 may appeal to the Tribunal. In determining the appeal the Tribunal will apply the same principles as would be applied by a court on an application for judicial review.
Section 44 and Schedule 2 of the Energy Act 2008 relate to offshore electricity transmission and property schemes, and confer on the Gas and Electricity Markets Authority ("the Authority"):
- Power to recover costs related to competitive tenders for determining to whom offshore electricity transmission licences will be granted; and
- Power to make property schemes to transfer property, rights and liabilities from the existing owner to the successful bidder for an offshore transmission licence.
Paragraph 23 of Schedule 2 provides that any person affected by a determination of the Authority may apply to the Tribunal for a review of the determination. Decisions of the Tribunal may be appealed on a point of law to the Court of Appeal or the Court of Session in Scotland.
By virtue of sections 20 and 21 of the Energy Act 2010 (which came into force on 16 July 2012 courtesy of the Energy Act 2010 (Commencement) Order 2012) the Tribunal is able to hear appeals in relation to decisions taken by the Gas and Electricity Markets Authority ("the Authority") in respect of (i) the application of a market power licence condition to particular types of exploitative behaviour in electricity markets; and (ii) the imposition and amount of any penalty imposed by the Authority.
Further appeal from decisions of the Tribunal
A further appeal lies from decisions of the Tribunal either on a point of law or in penalty cases as to the amount of any penalty.
Any such appeal lies to the Court of Appeal in relation to Tribunal proceedings in England and Wales; in relation to Tribunal proceedings in Scotland, to the Court of Session; and in relation to Tribunal proceedings in Northern Ireland to the Court of Appeal in Northern Ireland.
Such a further appeal may only be made with the permission of the Tribunal or the relevant appellate court.