Application for review by B&M European Value Retail S.A. (“B&M”) pursuant to section 179(1) of the Enterprise Act 2002 (the “Act”) of a decision dated 1 November 2018 (the “Designation Decision”) by the Competition and Markets Authority (the “CMA”) to designate B&M as a Designated Retailer pursuant to Part 2, Article 4(1)(b) of The Groceries (Supply Chain Practices) Market Investigation Order 2009 (the “Order”). B&M also challenges the CMA’s refusal on 11 December 2018 to de-designate the Appellant (the “Refusal”).
The Competition Commission (now the CMA) made the Order under section 161 of the Act on 4 August 2009, and the Order came into force on 4 February 2010. Central to the operation of the Order is the status of “Designated Retailer”.
In summary, B&M contends that the CMA: (i) misinterpreted the purpose of the Order; (ii) failed to understand and consider the exercise of its discretionary power; and (iii) failed to have regard to relevant considerations and its decisions are disproportionate.
A hearing took place on 6 February 2019 to determine: (i) the correct forum for challenging the Designation Decision and Refusal; and (ii) B&M's application for interim relief (B&M has also issued a claim for judicial review and an application for interim relief in the High Court of Justice, Queen's Bench Division, Administrative Court in relation to the same decisions which are the subject of this application).