Appeal by Bayerische Motoren Werke AG (“BMW AG”) pursuant to section 114 of the Enterprise Act 2002 against the imposition by the Competition and Markets Authority (“CMA”) of a penalty pursuant to s. 40A of the Competition Act 1998 (“CA 1998”).
The penalty has been imposed for non-compliance with a notice issued by the CMA under s. 26 of the CA 1998 requiring the production of specified documents and information. (“the Section 26 Notice”).
The amount of the penalty is the maximum permitted by statute, i.e. a fixed sum of £30,000 plus a continuing daily fine of £15,000. BMW AG was notified of the imposition of the penalty by a notice dated 6 December 2022. BMW AG brings its appeal on the following three grounds:
Ground 1: neither s. 26 nor s. 40A of the CA 1998 apply extraterritorially. Accordingly: (i) as a foreign-domiciled company, BMW AG had no obligation to comply with the Section 26 Notice; and (ii) in any event, the CMA did not have the power under s. 40A to impose a penalty for non-compliance on BMW AG.
Ground 2: in any event, given the doubt as to whether ss. 26 and/or 40A of the CA 1998 apply extraterritorially, and in light of its obligations under German and EU data protection law, BMW AG had a “reasonable excuse” within the meaning of s. 40A(1) for its non-compliance with the Section 26 Notice, and the CMA was not entitled to impose a penalty.
Ground 3: even if the CMA was entitled to impose a penalty on BMW AG, the amount of the penalty imposed (which was the absolute statutory maximum) was excessive and disproportionate in all the circumstances.
The issue of law that arises in relation to Ground 1, i.e. the territorial scope of the CA 1998, is also a central issue in a claim for judicial review brought in the High Court by Volkswagen AG against the CMA (claim no. CO/2721/2022). That claim will be heard together with the BMW AG appeal at the Competition Appeal Tribunal, 8 Salisbury Square, London EC4Y 8AP on 26 (pm only) and 27 January 2023.
A hearing took place on 26 and 27 January 2023, in relation to which the Tribunal made two Orders concerning the Amended Notice of Appeal and forum, and a stay on the accrual of the Penalty Notice pending judgment and confidentiality respectively.
The Tribunal issued a single Judgment determining both the application before the Tribunal by BMW AG and the application before the High Court by Volkswagen AG on 8 February 2023. The President also made an Order adjourning directions until a further hearing on consequential matters and extending the stay on the penalty ordered on 31 January 2023 until such further other Order of the President.
On 8 March 2023, a Reasoned Order of the Tribunal set out consequentials and granted permission to appeal in respect of the section 114 appeal (1574/10/12/22) by BMW AG.