The Competition Appeal Tribunal or, as it is sometimes known, the “CAT”, is an independent judicial body established by the Enterprise Act 2002. The principal functions of the Tribunal are as follows.
- First, the Tribunal may hear appeals in respect of decisions applying the competition rules found in Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 102 TFEU and Chapters I and II of the Competition Act 1998, decisions imposing penalties pursuant to sections 114 or 176(1) of the Enterprise Act 2002, and decisions applying the relevant provisions of the Communications Act 2003.
Secondly, the Tribunal may entertain applications for review of merger and market investigation decisions under the 2002 Act, decisions to accept or release binding commitments under section 31A of the 1998 Act and determinations concerning a price control matter under section 193(7) of the 2003 Act.
Thirdly, the Tribunal may determine claims for damages or other sums of money brought by claimants who have suffered loss or damage as a result of an infringement of one of the relevant prohibitions contained in the TFEU or the 1998 Act; these are also referred to as “private actions”. In England and Wales and Northern Ireland the Tribunal may also grant preliminary and final injunctions to prevent loss or damage arising as a result of an infringement.
Private actions may be by way of follow-on action (in which case the claim is based on an infringement decision of the Competition and Markets Authority (“CMA”) or European Commission and the claimant does not have to prove that the infringement has occurred) or stand-alone action (in which case the claimant also has to establish that there has been an infringement of the relevant competition law provisions). Furthermore, a claim may be made by an individual claimant under section 47A of the 1998 Act or be brought by way of a collective action under section 47B of the 1998 Act. Collective actions may be opt-in or opt-out.
Whether or not you can challenge a particular decision of a competition authority or make a claim for damages or an injunction in respect of an infringement of competition law can often be a difficult question of law upon which you may need to take specialist legal advice.
More details on the Tribunal, its functions and proceedings can be found on the Tribunal’s website and on the Rules and Guidance page.
What can I do if I consider that the implementation of the competition authority’s decision will significantly damage my business before my appeal can be heard?
The Tribunal can in some circumstances make interim orders or take other interim measures to prevent significant damage occurring before the appeal has been finally determined. More details of how to make a request for interim measures can be found on the Rules and Guidance page.
Proceedings before the Tribunal are governed by its Rules of Procedure. The rules of procedure are explained in the Tribunal’s Guide to Proceedings. Details can be found on the Rules and Guidance page.
Under the Rules of Procedure there are strict time limits within which a case must be commenced. These differ depending on the type of proceedings you intend to bring. You should refer to the Rules for the particular time limit which applies to the type of proceedings you wish to commence.
Yes, if you decide that you do not want to be represented by a lawyer. However, bear in mind that the areas covered by the Tribunal often involve complex issues of fact and law and it may therefore be prudent to seek specialist legal advice.
Generally, once the Tribunal receives an appeal or judicial review application, the Registrar will check the documents submitted to ensure that they comply with the Rules of Procedure. Once checked the documents will be sent to the competition or regulatory authority whose decision is being challenged (or served on the person against whom the claim is made). After receiving the appeal or application the Tribunal will typically summon the parties to a case management conference. At the case management conference the Tribunal will consider what directions are appropriate in light of the parties’ observations for the further progress of the case. This will include matters such as the filing of the defence and any other documents and when the main oral hearing should take place. These matters are explained in more detail in the Guide to Proceedings.
In relation to claims for damages, once the claim has been checked by the Registrar and registered, the claimant will be authorised to serve the claim on the defendant. The Tribunal will usually hold the first case management conference after the defence has been filed. Please consult the Guide to Proceedings for further details of the procedures concerning claims for damages.
Typically, a tribunal of three persons will be constituted by the President to hear a particular case. Those three persons must consist of a chairman (either the President or a person drawn from the Tribunal’s panel of chairmen who are either judges or senior legal practitioners) and two other members (“Ordinary Members”) drawn from a panel of persons with relevant specialist knowledge in such areas as law, economics, accountancy and business.
However, the President/Chairman may be appointed first and may deal with preparatory and procedural matters before being joined by the other two members to concentrate on the substantive issues in the case.
The biographical details of the President, Chairman and individual members of the Tribunal can be found on the Personnel page.
The Tribunal’s jurisdiction extends to the whole of the UK. The Tribunal may hold any meeting or hearing in such place and in such manner as it thinks fit having regard to the just expeditious and economical conduct of the proceedings. If a case has a particular connection with a part of the UK, then the Tribunal will hear the case there. To date, Tribunal hearings have been held in Edinburgh, Belfast and Cardiff as well as London. More details about this aspect can be found on the Rules and Guidance page. The Tribunal’s administrative office, the Registry, is situated in London. See the Contact Us page for more information.
Hearings and case management conferences are usually held in public and any judgment or ruling made by the Tribunal during or following those events are published on the Tribunal website. Transcripts of hearings and case management conferences are also published on the website. On occasion, the Tribunal may decide to sit in private for part of a hearing if it considers that this is appropriate in order to preserve the confidentiality of information.
In general, proceedings before the Tribunal are conducted on a basis that is as fully open and as public as possible. Nevertheless the Tribunal will, where appropriate, take measures to protect confidential information from disclosure during the proceedings. In broad terms confidential information is commercial information the disclosure of which could significantly harm the legitimate business interest of the business to which it relates, or information relating to the private affairs of an individual the disclosure of which could significantly harm his or her interests. Whether information is information of that description is a matter for the Tribunal to decide.
In the context of appeal or judicial review proceedings against a competition or regulatory authority, confidential treatment cannot be accorded in favour of an appellant as against the respondent authority since the Tribunal cannot rely in its judgment on any matters which have not been the subject of disclosure between the principal parties. The Tribunal may however decide that it is appropriate to maintain the confidentiality of information as regards third party interveners and the general public. The Guide to Proceedings explains the position in more detail.
Cases before the Tribunal often raise complicated issues and may involve a significant number of parties so it may be difficult to know at the outset how long a particular case will last. However the Tribunal does seek to manage the cases tightly and, in general aims, to complete “straightforward” cases in less than nine months.
A claim for damages brought pursuant to Section 47A of the 1998 Act may be subject to the fast-track procedure (“FTP”). The FTP is a particular procedure intended to enable less complex claims to be brought, in particular by individuals and small businesses, and decided quickly with limited risk as to costs. In any case subject to the FTP, the final hearing will be fixed to take place as soon as practicable and in any event within six months.
A further appeal lies from the Tribunal to the “appropriate court” only on a point of law or the amount of any penalty. This depends on which part of the United Kingdom the case concerns. The “appropriate court” will be:
- in the case of Tribunal proceedings in England and Wales, the Court of Appeal;
- in the case of Tribunal proceedings in Scotland, the Inner House of the Court of Session; or
- in the case of Tribunal proceedings in Northern Ireland, the Court of Appeal of Northern Ireland.
A further appeal requires the permission of the Tribunal or the appropriate appellate court.
Information about ongoing cases, past cases and judgments and rulings may be found on the Tribunal website or by contacting the Tribunal’s Registry. Very soon after an appeal or application for judicial review has been received, a summary of the appeal or application will be published on the Tribunal website to notify those who may have a sufficient interest in the proceedings and who may wish to seek permission to intervene. In the case of claims for damages a summary of the claim will be published on the Tribunal website usually after service of the claim on the defendant. The Tribunal website contains details of the current status of cases.
If you have a sufficient interest in the outcome of the proceedings, you may be entitled to request permission to intervene in the case in order to support the position being taken by one of the parties. In this instance the Tribunal’s Registry should be contacted as soon as practicable. Further details can be found on the Rules and Guidance page. Even if you do not wish or are not permitted to intervene in a case, the Tribunal’s main oral hearings take place in public. Transcripts of the hearings and any consequent judgments are also published on the Tribunal website.