BSkyB Plc, Virgin Media Inc v Competition Commission, SS for Business Enterprise and Regulatory Reform [2010] EWCA Civ 2

18 Mar 2010 | by Monckton Chambers

On 21 January 2010, the Court of Appeal (Rix LJ, Lloyd LJ and Mackay J) dismissed the appeal of British Sky Broadcasting Group plc (“Sky”) against the decision of the Competition Appeal Tribunal (“CAT”) of 29 September 2008 in which the CAT had dismissed Sky’s appeal against the Competition Commission’s and the Secretary of State’s decisions that Sky’s acquisition of a minority shareholding in ITV resulted in a substantial lessening of competition (“SLC”) and that Sky should divest itself of that shareholding to below 7.5 per cent. The Court of Appeal also held that in respect of a separate public interest consideration, that of media plurality, the CAT had erred in law in its interpretation of a relevant section of the Enterprise Act 2002, and allowed the appeals of Sky, the Competition Commission (“CC”) and the Secretary of State on that issue. The CC had found that, in respect of media plurality, there would be no adverse public interest effects arising from the merger. The Court of Appeal refused Sky’s application for leave to appeal to the Supreme Court. After that refusal, Sky confirmed that it would comply with the Secretary of State’s decision to require the appropriate divestment.