Competition Appeal Tribunal | About the Tribunal



				16 May 2008

Introduction

How does the CAT deal with cases?

Appeals under the Competition Act 1998 (“the Competition Act”) as amended by the Competition Act 1998 and other enactments (Amendment) Regulations 2004
- What does the Competition Act do?
- What decisions may be appealed under the Competition Act?
- Who may appeal to the CAT under the Competition Act?
- Who may bring actions for damages or other monetary claims?

Proceedings under the Enterprise Act 2002 ("the Enterprise Act")
- What does the Enterprise Act do?
- What decisions may be reviewed by the CAT, and who may ask for a review?
- How does the CAT deal with reviews?

Appeals under the Communications Act 2003
- Price control matters
- The Tribunal`s decision

Appeals under The Mobile Roaming (European Communities) Regulations 2007 (S.I. 2007 No. 1933) (“the 2007 Regulations”)

Appeals from the CAT’s decisions

Introduction

The Competition Appeal Tribunal (“CAT”) was created by Section 12 and Schedule 2 to the Enterprise Act 2002 (“the Enterprise Act”) which came into force on 1 April 2003.

The current functions of the CAT are:

To hear appeals on the merits in respect of decisions made under the Competition Act 1998 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 the Secretary of State relating to the exercise by OFCOM of its functions under 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 (“the 2003 Act”).
To hear appeals in respect of decisions made by OFCOM under The Mobile Roaming (European Communities) Regulations 2007 (S.I. 2007 No. 1933)

How does the CAT deal with cases?

Cases are heard before a panel 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 and/or related fields.

The CAT’s jurisdiction extends to the whole of the United Kingdom.

Appeals under the Competition Act 1998 (“the Competition Act”) as amended by the Competition Act 1998 and other enactments (Amendment) Regulations 2004

What does the Competition Act do?

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 (‘the Chapter I prohibition’)
The abuse of a dominant position in a market if it may affect trade within the United Kingdom (‘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 concerned. 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 81 and 82 of the Treaty establishing the European Community ("the EC Treaty"):

Article 81 prohibits agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition within the Common Market and which may affect trade between Member States

Article 82 prohibits the abuse by one or more undertakings of a dominant position in the Common 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 81 and 82.

What decisions may be appealed under the Competition Act?

Under Sections 46 and 47 of the Competition Act, certain decisions taken by the OFT (or sectoral regulator) may be appealed to the CAT. The CAT 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 other sectoral regulator) which may be subject to an appeal to the CAT. These include any decision:

as to whether the Chapter I prohibition has been infringed,

as to whether the prohibition in Article 81(1) has been infringed,

as to whether the Chapter II prohibition has been infringed,

as to whether the prohibition in Article 82 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 to grant interim measures.

The Secretary of State has power to add to the list of decisions that may be appealed.

Who may appeal to the CAT under the Competition Act?

Under sections 46 and 47 of the Competition Act an appeal to the CAT may be made by:

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 CAT considers has a sufficient interest (or is representative of persons having such an interest) in a decision (except in relation to the imposition of a penalty) made by the OFT (or sectoral regulator)

The CAT 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 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 CAT 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 CAT does not suspend the effect of the decision to which the appeal relates, unless the CAT orders otherwise.

Who may bring actions for damages or other monetary claims?

Under section 47A of the Competition Act (inserted by section 18 of the Enterprise Act) any person who has suffered loss or damage as a result of an infringement of either UK or European Community competition law may bring a claim for damages or for a sum of money before the CAT 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 81(1) and 82 of the EC Treaty;
Articles 65(1) and 66(7) of the ECSC Treaty.

In general claims may only be brought before the CAT 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.

Proceedings under the Enterprise Act 2002 ("the Enterprise Act")

What does the Enterprise Act do?

The Enterprise Act sets out, amongst other things, 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 decides 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.

What decisions may be reviewed by the CAT, and who may ask for a review?

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 CAT 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 CAT.

How does the CAT deal with reviews?

In relation to these reviews, the CAT 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 CAT’s Rules of Procedure and in the CAT’s Guide to Proceedings.

In reviewing the relevant decisions, the CAT 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 CAT.

Appeals under the Communications Act 2003

In February 2002 the European Parliament and Council of Ministers enacted four Directives designed to create a common regulatory framework for electronic communications networks and services.

Those Directives are: 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; and Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services.

A significant number of the obligations imposed by those Directives on the United Kingdom are implemented by the provisions of the 2003 Act.

Part 2 of the 2003 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 2003 Act also confers power on OFCOM relating to the use of the radio spectrum.

Decisions under Part 2 of the 2003 Act that may be appealed (by a person affected)to the CAT in accordance with the CAT’s Rules of Procedure are set out in section 192:

decisions in relation to a condition of entitlement made by OFCOM under Part 2 of the 2003 Act.
decisions under the 2003 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 made under the following provisions of the 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 CAT are specified in Schedule 8 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 2003 Act in relation to appeals, references to decisions under an enactment for the purposes of an appeal under the 2003 Act 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 CAT 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 CAT’s Rules of Procedure.

Price control matters

If an appeal raises a price control matter as specified in the CAT’s Rules of Procedure (as amended by the Competition Appeal Tribunal (Amendment and Communications Act Appeals Rules 2004)), the CAT must before reaching its decision refer the matter to the Competition Commission for determination in accordance with the CAT’s Rules and any direction of the CAT (section 193). In its decision the CAT 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)).

The Tribunal`s decision

The CAT’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 CAT 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, the CAT must take only such steps as it considers are not detrimental to good administration (section 195(7).

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 CAT. Regulation 15 of the 2007 Regulations provides that the CAT shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.

Appeals from the CAT’s decisions

A further appeal lies from decisions of the CAT 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 CAT proceedings in England and Wales; in relation to CAT proceedings in Scotland, to the Court of Session; and in relation to CAT 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 CAT or the relevant appellate court.

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