Outcomes in successful competition appeals: remittal, finality and certainty

Abstract

This article examines ultimate outcomes in successful appeals in competition cases in the UK, including when a case must or may be remitted by the Competition Appeal Tribunal to the competition authority taking the original decision and the role of the Tribunal in giving directions about future conduct of the investigation. The article contrasts the Tribunal’s approach in appeals concerning mergers and market investigations under the Enterprise Act 2002 with its approach in appeals under the Competition Act 1998 where it has greater discretion to effectively replace the decision of the authority with its own decision rather than remit. It then considers the Tribunal’s powers to influence the conduct of a case once remitted with respect to: (i) timing and process; (ii) remittal to the same decision makers or a reconstituted panel; and (iii) the substance of the remittal. It also considers how often a remittal results in a different decision by the authority. Finally, it examines considerations relevant to remittal or substitution by the Tribunal of its own findings for those of the competition authority in merits appeals and a number of practical ways that the Competition and Markets Authority and the Tribunal could make the appeals process more final and promote resolution from a business perspective. This issue is topical in light of two recent remittals of merger prohibition decisions in JD Sports/Footasylum and FNZ/GBST and the second appeals brought by Pfizer and Flynn Pharma against the CMA’s readopted antitrust decision in Phenytoin, following remittal after a successful first appeal.