Appeals

The Act established the Competition Appeal Tribunal which replaced the appeal tribunal of the Competition Commission, known as the Competition Commission Appeal Tribunals. The Competition Appeal Tribunal is entirely independent of the CC and is funded and supported in its administration through a new body called the Competition Service.

The Competition Appeal Tribunal’s functions which relate to the CC are:

• reviewing decisions made by the Secretary of State, the OFT and the CC in respect of merger and market investigation references or possible references under the Enterprise Act 2002; and

• hearing 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).

Application for review of merger and market decisions

The Competition Appeal Tribunal will review, on application from main and third parties with sufficient interest, the decisions of the CC, the Secretary of State, or the OFT in merger and market investigations. The Act requires that the Competition Appeal Tribunal should follow the same principles as a court would follow on an application for judicial review. This means that the Tribunal cannot substitute its own decision on the merits of the case but will consider such matters as whether the competition authority considered the case fully, followed its own procedures, observed the relevant law, acted fairly and proportionately and without bias, and came to a reasonable decision on the basis of the evidence. If necessary, it can require the decision to be reconsidered by the relevant authority.

Appeal of penalty decisions

During merger and market investigations, the CC will have the power to impose penalties for failure to provide evidence (either as a witness or in the form of documents). Penalties imposed by the CC can be appealed to the Competition Appeal Tribunal which may quash the penalty or substitute a different amount or different dates for payment.

Reference of price control matters to the CC

As stated above, one of the functions of the Competition Appeal Tribunal is 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) of the Communications Act 2003. Section 193 of the Communications Act requires the Competition Appeal Tribunal to refer to the CC for determination certain price control matters arising in such an appeal.

The Competition Appeal Tribunal Rules

The procedures that the Competition Appeal Tribunal will follow are set out in the Competition Appeal Tribunal Rules 2003 and include matters such as time limits for bringing proceedings, conduct of hearings, ability to reject proceedings and interim orders and fees. The procedures allow, in merger cases, four weeks for a party to apply to have a decision reviewed, and four weeks for the CC’s response; and in market investigations, two months for the parties to apply for review and six weeks for the CC’s response.