The Goals of Chapter I of the UK's Competition Act 1998

Abstract

This paper is about UK competition law's goals. It focuses on Chapter I of the Competition Act 1998 (CA98), 1 the UK equivalent of Article 101 TFEU. The Office of Fair Trading (OFT) appears to pursue consumer welfare as Chapter I's sole goal. The Office of Communications (Ofcom) and the OFT have concurrent powers to apply Chapter I to �communications matters�. The High Court can also hear private Chapter I actions. It would be problematic if these actors decided the same case differently, as this could create contradictions in legal duties, making �knowing the law� impossible. 2 It certainly undermines legal certainty for firms and their customers, thus increasing legal risk. This paper focuses on one potential area of divergence, which goes to the heart of almost every decision: Chapter I's objectives. I will argue that if the OFT pursues consumer welfare as Chapter I's sole goal, then this is wrong in law. 3 Furthermore, I believe that Ofcom is unlikely to follow the OFT's lead on this issue. 4 My focus is on the OFT and Ofcom; but, the High Court could diverge too. 5 Let me start by presenting a factual scenario where a disagreement as to Chapter I's goals might have an impact. I could have used the joint venture for an internet TV platform, Project Canvas. 6 Instead, I will focus on public service broadcasting (PSB) in regional news. Such programmes are made by the market, but not in any quantity. Furthermore, outside the BBC, the UK's PSB system is under great pressure. Ofcom believes that it is unsustainable; some firms might not renew their PSB licences in 2014. 7 Given this, how can Ofcom ensure that innovative and original programmes, fulfilling public purposes, are delivered? The BBC has offered to set up partnerships with others �