Allergan PLC & Ors v The Competition and Markets Authority
[2024] EWCA Civ 1023
Competition and Markets Authority v Apple Inc & Ors
30 November 2023
[2023] EWCA Civ 1445
Court of Appeal
The CMA investigated companies, then decided to wait for a new law before taking further action. The law didn't come, so they tried to investigate again. A lower court said they couldn't. The higher court said they could, clarifying that the first decision didn't block future investigations. They can investigate more than once, if needed, to protect consumers.
Key Facts
- •The CMA initially decided not to conduct a market investigation reference (MIR) due to anticipated new legislation.
- •After the new legislation failed to materialize, the CMA sought to initiate a new MIR under a different section of the Enterprise Act 2002.
- •Apple challenged the CMA's second decision as ultra vires (beyond its powers).
- •The Competition Appeal Tribunal (CAT) agreed with Apple, ruling the CMA's second decision unlawful.
- •The CMA appealed the CAT's decision to the Court of Appeal.
Legal Principles
Interpretation of the Enterprise Act 2002 (EA 2002) regarding the CMA's jurisdiction to conduct a fresh market investigation after a prior decision not to investigate.
Enterprise Act 2002
The CMA has a statutory function of obtaining, compiling and keeping under review information (Section 5 EA 2002).
Section 5 EA 2002
The CMA has a standalone power to make a MIR if it has reasonable grounds to suspect competition concerns (Section 131(1) EA 2002).
Section 131(1) EA 2002
The CMA has a power to publish a market study notice (MSN) to gather more information before making a decision about a MIR (Sections 130A, 131A and 131B EA 2002).
Sections 130A, 131A and 131B EA 2002
Exercise of statutory powers is subject to public law constraints, including acting rationally and for the proper purpose.
Common law principles of statutory interpretation
Purposive construction of statutes, considering the overall statutory purpose of promoting competition and protecting consumers.
Common law principles of statutory interpretation
Outcomes
The Court of Appeal allowed the CMA's appeal.
The Court held that the CMA's second decision to initiate a MIR was intra vires (within its powers). The phrase “in relation to” in Section 131A(1)(a) does not create an additional, wide-ranging restriction on the standalone power in Section 131(1). The time limits in Section 131B only apply to the MSN procedure and do not prevent the CMA from using its standalone power under Section 131(1) at a later date.
The CAT's judgment was set aside.
The CAT incorrectly interpreted Section 131A(1)(a) as imposing an enduring limitation on the CMA's ability to exercise its standalone power under Section 131(1).