The Competition Appeal Tribunal has handed down judgment in Sabre Corporation v. CMA, a significant case concerning the CMA’s jurisdiction over mergers under the Enterprise Act 2002.

The case concerned an intended merger between Sabre Corporation and Farelogix Inc, companies which provide technology and software to airlines. The CMA found that it had jurisdiction over the merger on the basis of the share of supply test and concluded that the proposed merger may be expected to give rise to a substantial lessening of competition in two markets: the supply of merchandising solutions to airlines and the supply of distribution solutions to airlines, both of which are worldwide markets. The CMA prohibited the merger.

Sabre challenged the description of services used by the CMA to assess the share of supply test, the application of the share of supply test to Farelogix’ contractual arrangements with BA in the UK and the determination of whether the merger gave rise to an increment over Sabre’s existing share of supply. The CAT upheld the CMA’s findings on each of these issues. The judgment contains detailed consideration of a number of sub-sections of section 23 of the Enterprise Act which have not been in focus in previous cases, as well as a detailed consideration of the standard and intensity of review which ought to be adopted by the CAT in relation to findings of jurisdiction.

Rob Williams QC and Conor McCarthy, were instructed by the CMA.

Tim Ward QC, Nik Grubeck and Alison Berridge and were instructed by Skadden, Arps, Slate, Meagher & Flom on behalf of Sabre Corp.

Daniel Beard Q.C., Brendan McGurk and Jack Williams acted for Heathrow, Global Blue and WDFG in the first post-Brexit case considering WTO law in domestic proceedings, Heathrow Airport v HMT [2021] EWCA Civ 783.

The Claim concerned HMRC’s and the Treasury’s decision to abolish two long-standing VAT schemes, namely HMRC’s extra-statutory concession (“the ESC”), which allowed VAT-free airside sales of goods to passengers travelling outside the EU; and the VAT Retail Export Scheme (the “VAT RES”), which allowed refunds of VAT on landside sales of goods to non-EU travellers subject to certain conditions being met (together, “the Schemes”).

In deciding to abolish the Schemes, HMRC and the Treasury relied upon their understanding of the UK’s WTO law obligations, in particular the Most Favoured Nation (“MFN”) principle. The decision was partly based on a justification that it was necessary either to abolish the VAT RES or to extend it globally, else it would not be compliant with non-discrimination obligations in WTO law.

Lord Justice Green and Mrs Justice Whipple (sitting as both the Court of Appeal and Divisional Court) dismissed Heathrow’s appeal and application for judicial review. However, in doing so, they rejected the Defendants’ contention that the matter was non-justiciable, and made findings as to the appropriate test and standard of review when considering questions of public international law in domestic judicial review proceedings. The judgment’s findings and reasoning will be of great interest to all public law practitioners, but are especially important in a post-Brexit world where public authorities choose to take into account WTO law and other public international law instruments into account in their decision-making. See, in particular, [135] – [183] of the Judgment.

The Judgment also provides a detailed exploration of the interaction between UK-EU Trade and Co-operation Agreement (“the TCA”) and the EU (Future Relationship) Act 2020, which will be of broader application and interest: see, for example, [224] – [239].

Royal Mail and BT v DAF Trucks Limited [2021] CAT 10

The Competition Appeal Tribunal has delivered an important judgment on the implications of the Supreme Court’s decision in the interchange fee litigation for other competition damages claims (Sainsbury’s v Visa Europe [2020] UKSC 24).

Royal Mail and BT are seeking damages from DAF arising from the European Commission’s 2016 infringement decision relating to Trucks. Their claims are the first of several to be set down for trial, with the trial due to commence in April 2022. Following the Supreme Court’s decision in Sainsbury’s, which considered issues of pass-on and mitigation, DAF applied to introduce a mitigation defence, arguing that the Claimants would have mitigated any overcharge arising from the infringement by negotiating costs reductions with their other suppliers. The Claimants opposed the application and, following a two day hearing in March, the Tribunal rejected it in a judgment issued this week.

The Tribunal held, in summary, that the Supreme Court’s decision does not permit a defendant to plead a defence of mitigation on the basis of broad economic theory alone (e.g. that a business faced with increased supply costs in one area will seek to compensate for that increase by reducing other costs). Rather, there must be some plausible factual basis for alleging that the claimant would have taken action to reduce its losses as a result of the overcharge. The Tribunal noted the evidential burden which would otherwise be imposed on claimants to demonstrate how they conducted their businesses, not only in in competition claims but in many commercial damages claims. The Tribunal acknowledged that a defendant is unlikely to have sufficient evidence available at the pleading stage to prove what the claimant did in response to the overcharge, but explained that it must nevertheless have some plausible factual foundation for the application of the economic theory relied on in order for the pleading to be permitted. Examples of the sort of points which could support a prima facie inference that other supply costs may well have been mitigated were given in paragraph 42 of the judgment. As a practical matter, the Tribunal noted that DAF could reapply for permission to introduce a mitigation plea once it had reviewed the Claimants’ disclosure.

The Tribunal’s judgment provides important guidance on the requirements for a pleading of mitigation. It will be of keen interest to competition practitioners and commercial practitioners more generally.

Royal Mail and BT were represented by Ben Lask and Anneliese Blackwood. DAF was represented by Daniel Beard QC, Rob Williams QC and Daisy Mackersie.

A copy of the judgment in here.

Facebook v Competition and Markets Authority [2021] EWCA Civ 701

The Court of Appeal has dismissed an appeal by Facebook concerning the CMA’s use of interim measures in merger investigations.

The CMA is investigating Facebook’s acquisition of GIPHY, a provider of short soundless videos (GIFs) and stickers, which are used on apps such as WhatsApp, Instagram, TikTok and Snapchat. As is standard practice in merger investigations, the CMA imposed an Interim Enforcement Order (IEO) on the parties at the outset of its investigation, prohibiting any further integration of their businesses and imposing various obligations for the purpose of preventing pre-emptive action (i.e. action which might prejudice the investigation or impede the imposition of any remedies at the end of the investigation). Given the need to act quickly to “hold the ring” with completed mergers, the CMA uses a broad template IEO from which it then grants appropriate derogations in response to reasoned requests.

Facebook applied to the Competition Appeal Tribunal for judicial review of the CMA’s refusal to grant a number of derogations that it had sought from the IEO. It complained that the effect of the IEO was to “freeze” hundreds of Facebook’s businesses and more than 50,000 employees worldwide. The Tribunal dismissed the claim, holding that, since Facebook had refused to provide the information requested by the CMA in order to consider its derogation requests, the CMA had been entitled not to grant the derogations sought. Facebook appealed to the Court of Appeal but, in a judgment handed down on 13 May 2021, its appeal was dismissed. The Court held, in summary, that:

1. Facebook’s case was based on the misapprehension that the CMA’s final remedial were limited to requiring the divestiture of GIPHY, whereas in fact they were wider than that.
2. The problem of which Facebook complained had been entirely of Facebook’s own making. Rather than engaging properly with the CMA, it had made its derogation requests and then “sat on its hands”, refusing to answer the CMA’s questions.
3. A consequence of the UK’s prospective merger regime was that the CMA had to act quickly in appropriate cases. Accordingly, it had developed a broad template for IEOs, which were intended to hold the ring whilst it obtained further information, and which Facebook had not specifically challenged. However, the process broke down if addressees of the IEOs refused to cooperate as Facebook had.

The CMA’s investigation of the Facebook / GIPHY merger is ongoing, with a final decision due in September 2021.

Ben Lask represented the CMA in the Court of Appeal. A copy of the judgment is here.

Ronit Kreisberger is joint lead counsel for the legal team representing Dr Rachael Kent, an expert in the digital economy and lecturer at King’s College, University of London, in this representative opt-out collective action against Apple.

A claim in the Competition Appeal Tribunal on behalf of around 19.6 million eligible UK iPhone and iPad users, alleges that Apple’s conduct violates section 18 of the UK Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union.

Ronit, who has been instructed by Hausfeld, says she is “delighted to be involved in this significant case, at a time when opt out collective actions – especially those seeking compensation for consumers – are dominating the competition litigation landscape in the UK, in the wake of the Supreme Court’s judgment in Merricks.”

For further information see Hausfeld press release here.

The case is being reported widely in the media:
BBC News
Bloomberg
City A.M.
The Times
Yahoo!

The Court of Appeal has handed down its judgment dismissing Royal Mail’s appeal against a decision of the Competition Appeal Tribunal which confirmed Ofcom’s earlier finding that Royal Mail abused its dominant position to exclude its competitor Whistl from the wholesale market for bulk mail delivery services. Ofcom imposed a fine of £50 million for that conduct (the highest fine ever imposed by Ofcom), which was upheld on appeal.

The Court of Appeal concluded that “Ofcom was not required as a matter of law to treat the AEC test [the as-efficient-competitor test relied upon by Royal Mail] as either determinative or highly relevant. In those circumstances Ofcom gave adequate consideration to the AEC test, and the Tribunal did not err in law in so concluding.”

All parties to the proceedings – Royal Mail, Ofcom and Whistl – were represented by leading and junior counsel from Monckton Chambers.

The Court of Appeal’s judgment is available here.

Daniel Beard QC and Ciar McAndrew appeared for Royal Mail.

Josh Holmes QC, Julianne Kerr Morrison and Nikolaus Grubeck appeared for Ofcom.

Jon Turner QC, Alan Bates and Daisy Mackersie appeared for Whistl.

Civil engineering company Northstone was one of a number of operators in competition for a total of eight road resurfacing contracts in Northern Ireland. The eight separate contracts, with a total estimated annual value of up to £52 million, were dealt with under a single procurement competition tendering process, carried out in 2015 by the Department for Infrastructure, (formerly known as the Department for Regional Development – DRD). The challenge by Northstone focused on the Department’s handling and determination of the competitive tender process and in particular the process which was conducted with one bidder, John McQuillan (Contracts) Limited (McQuillans).

The tender criteria meant that price was weighted at 70% and quality 30% and all bidders were ranked accordingly. Northstone was ranked first in one of the eight contracts it tendered for, coming second or third in all the rest. The Department ranked six of McQuillan’s tenders first before entering into private negotiations with the company which culminated in the firm withdrawing two of its bids and then being awarded four of the eight contracts. Northstone challenged the handling of the tendering competition and in July 2020 a High Court judge held that the Department had wrongly given high marks for contracts for which McQuillans did not have the necessary resources. He also identified a lack of transparency, unequal treatment and breach of the principle of non-discrimination in the circumstances whereby that company was able to select which contracts it would deploy its resources to.

In the Court of Appeal, Lord Justice McCloskey upheld the conclusion that the post-tender evaluation and scoring interaction with the operator ranked first for six contract bids, along with resulting award decisions, breached the relevant procurement legislation and that the Department had “engaged in a secret, bilateral and unrecorded process with one of multiple bidders”, and “in consequence, the level playing field was distorted for other bidders.” He further assessed that “to design and operate this competition in such a way as to rank first six contract bids from an operator who had the resources to perform only four contracts at most defies common sense and commercial reality”.

The appeal by the Department for Infrastructure was dismissed.

The judgment can be found here.

Michael Bowsher QC and Richard Coghlin QC, instructed by Declan Magee of Carson McDowell LLP, acted for Northstone.

The Administrative Court has granted the Campaign Against Arms Trade (CAAT) permission to judicially review the government’s decision to resume issuing licences for the transfer of arms and military equipment to Saudi Arabia for use in the conflict in Yemen. 

The decision to resume exports follows a review by the government of the legality of exports, undertaken following previous litigation brought by CAAT which resulted in the Court of Appeal finding in 2019 that earlier licences had been issued unlawfully. This was because the government’s assessment had failed properly to assess whether KSA and its coalition partners had violated the laws of war in a series of incidents investigated by the UN and NGOs and found likely to constitute war crimes. A number of issues in the first challenge remain pending before the Supreme Court. 

The Administrative Court has now listed CAAT’s second challenge to be heard by the Divisional Court, at a date still to be determined.  

Conor McCarthy is junior counsel for CAAT.

In the first claim brought by CAAT, Nik Grubeck acted as junior counsel for interveners including Human Rights Watch and Amnesty International, while Gerry Facenna QC and Julianne Kerr Morrison acted as counsel for Oxfam, which also intervened in the case.