Last week, the Competition Appeal Tribunal heard appeals by British Sky Broadcasting Group (“Sky”) and Virgin Media against decisions taken by the Competition Commission and the Secretary of State for Business, Enterprise and Regulatory Reform in relation to Sky’s acquisition of a 17.9% shareholding in ITV. In a report published last December, the Competition Commission concluded that Sky’s shareholding in ITV may be expected to give rise to a substantial lessening of competition, and recommended that Sky’s holding should be reduced to a level below 7.5%. The Secretary of State was responsible for the eventual decision on remedial action, but agreed with the Commission’s recommendation. Sky has challenged the Commission’s conclusions on jurisdiction, competition and remedial action, and also challenges the Secretary of State’s decision on remedies.
Virgin Media has mounted a separate challenge to aspects of the decision in relation to the media public interest consideration that there be a sufficient plurality of persons with control of media enterprises serving certain UK audiences. Both the Commission and the Secretary of State found that the merger is not expected to operate against the public interest on this latter basis. Virgin Media has also complained that the remedy imposed was inadequate. The Tribunal has reserved its judgment on both appeals.
Rupert Anderson QC and Elisa Holmes acted for The Secretary of State.
John Swift QC, Daniel Beard and Rob Williams were counsel for The Competition Commission.