Annual Report and Accounts 2015/2016 – Competition Appeal Tribunal and Competition Service and Competition Tribunal Appeal Report 2015/2016 – Competition Annual and Accounts Annual Report and Accounts 2015/2016 Contents Introduction 4 President’s statement 6 Performance report 12 Membership 17 Cases 2015/2016 24 Accounts 2015/2016 46 Introduction The Enterprise Act 2002 provided Further powers have been given to Following the coming into force of for the establishment of the the Tribunal to hear appeals under the Consumer Rights Act in Competition Appeal Tribunal the Payment Services Regulations October 2015, the Tribunal can now (Tribunal) and the Competition 2009. Under the Financial Services hear any claim for damages in respect Service (CS). Although created as (Banking Reform) Act 2013 and the of an infringement whether or not separate entities under the Payment Card Interchange Fee there is a prior decision of a Enterprise Act 2002 and treated as Regulations 2015, the Tribunal has competition authority establishing such for accounting purposes, in jurisdiction to hear appeals from such an infringement (previously the practical terms the Tribunal and the some types of enforcement and Tribunal’s jurisdiction was limited to CS constitute a single organisation. penalty decisions of the Payment “follow-on” claims, i.e. claims that Through the CS, the Tribunal Systems Regulator. Under the Energy follow on from a decision by a effectively administers itself and a Act 2010, the Tribunal is able to hear national competition authority single body of staff deploys the appeals in relation to decisions taken finding an infringement of UK same set of resources in multi- by the Gas and Electricity Markets competition law or by the European tasking the casework of the Tribunal Authority (GEMA) in respect of the Commission in respect of an and necessary support functions. application of a market power infringement of Articles 101 or 102 of licence condition to particular types the TFEU). Furthermore, the Tribunal PRINCIPAL FUNCTIONS OF of exploitative behaviour in electricity can hear collective actions for THE TRIBUNAL markets. The Tribunal may also hear damages on both an “opt-in” and appeals in respect of decisions taken “opt-out” basis and also (except in The Tribunal hears appeals against: by Ofcom pursuant to the Mobile Scottish cases) has power to grant decisions taken under the Roaming (European Communities) injunctive relief in order to prevent or Competition Act 1998 and Articles Regulations 2007 and the curtail infringements of 101 and 102 of the Treaty on the Authorisation of Frequency Use for competition law. Functioning of the European Union the Provision of Mobile Satellite (TFEU) by the Competition and Services (European Union) Each of the cases within the Markets Authority (CMA) and by Regulations 2010. The Postal Services Tribunal’s various areas of statutory designated sector regulators with Act 2011 provides for an appeal to jurisdiction is heard and decided by 1 concurrent powers; certain decisions the Tribunal in respect of certain a panel consisting of the President of the Office of Communications decisions taken by Ofcom in relation or a Chairman and two Ordinary (Ofcom) regarding the to the regulation of postal services. Members. The decisions of the communications and broadcasting Tribunal may be appealed on a sectors under the Communications The Civil Aviation Act 2012 affords a point of law or as to the amount of Act 2003; and other legislation right of appeal to the Tribunal in any penalty to the Court of Appeal related to those sectors and respect of various decisions and in relation to cases in England and decisions of the CMA or the Secretary determinations of the Civil Aviation Wales, the Court of Session in of State for Business Innovation and Authority including market power respect of Scottish cases or, with Skills (BIS) on merger cases and determinations, the imposition, regard to Northern Irish cases, the market investigations under the modification and revocation of Court of Appeal in Northern Ireland. Enterprise Act 2002. certain enforcement orders, the revocation of licences and the imposition of penalties. 1 The sector regulators with concurrent powers are set out in section 54(1) of the Competition Act 1998 (as amended) and include: (1) the Office of Communications; (2) the Gas and Electricity Markets Authority; (3) the Water Services Regulation Authority; (4) the Office of Rail and Road ; (5) the Northern Ireland Authority for Utility Regulation; (6) the Civil Aviation Authority; (7) Monitor (now operating under the umbrella of NHS Improvement); (8) the Payment Systems Regulator; and (9) the Financial Conduct Authority. 4 Annual Report and Accounts 2015/2016 IntroDuction MEMBERSHIP OF THE Professor Gavin Reid The membership of the CS TRIBUNAL Dr Joanne Stuart OBE comprises: the President, the Professor Stephen Wilks Registrar and a non-executive The Tribunal’s membership member, Susan Scholefield CMG, comprises: *Until 30 May 2016 who is also chair of the CS Audit and Risk Committee. Ilia Bowles is the President Registrar Tribunal/CS Director, Operations. The Hon. Mr Justice Roth Charles Dhanowa OBE, QC (Hon) REGISTER OF INTERESTS Chairmen RECRUITMENT The Hon. Mr Justice Mann The CS holds a Register of Interests The Hon. Mr Justice Henderson The President and Chairmen are detailing any directorships or other The Hon. Mrs Justice Proudman appointed by the Lord Chancellor significant interests held by the The Hon. Mr Justice Arnold for a fixed term upon the members of the CS. The Hon. Mr Justice Newey recommendation of the Judicial The Hon. Mr Justice Hildyard Appointments Commission and by PREMISES open competition as appropriate. The Hon. Mrs Justice Asplin The Tribunal and the CS operate The Hon. Mr Justice Birss Ordinary Members are recruited in open competition according to the from premises in Victoria House, The Hon. Mrs Justice Rose Bloomsbury Place, London, WC1A The Hon. Mr Justice Nugee guidelines of the Office of the Commissioner for Public 2EB. Where cases involve matters The Hon. Mr Justice Barling pertaining to a particular part or The Hon. Lord Doherty Appointments and are appointed by the Secretary of State for BIS. The region of the UK, the Tribunal may The Hon. Mr Justice Green hear those cases at premises outside The Hon. Mr Justice Snowden Registrar is also appointed by the Secretary of State. London. Past cases concerning The Hon. Mr Justice Carr Scottish, Welsh and Northern Irish Heriot Currie QC THE COMPETITION SERVICE undertakings have been heard in Peter Freeman CBE, QC (Hon) Edinburgh, Cardiff and Belfast (CS) Andrew Lenon QC respectively. Hodge Malek QC The CS is an executive non- Marcus Smith QC departmental public body FINANCE AND WORKLOAD established by the Enterprise Act Ordinary Members 2002 to provide the administrative The work of the Tribunal is financed William Allan staff, finance and accommodation entirely through grant-in-aid from Professor John Beath OBE required by the Tribunal to carry out BIS and administered by the CS. The Timothy Cowen its functions. Although the Tribunal Registrar is the Accounting Officer Margot Daly and the CS are, in formal terms, and is responsible for the proper use Dr Clive Elphick separate bodies, in practice they are of these funds. Dermot Glynn different aspects of one integrated Stephen Harrison organisation; a single body of staff Brian Landers multi-tasks across case-handling Jonathan May* and administrative roles using a Professor Colin Mayer common pool of resources. Clare Potter Annual Report and Accounts 2015/2016 5 President’s statement INTRODUCTION took place. On 1 October 2015, the At the same time, a new and Enterprise Act 2002 Regulations extensive guide to proceedings was This is my third statement as 2015 amended the Enterprise Act published. The guide has the status President of the Competition Appeal 2002 so that the High Court in of a practice direction and reflects Tribunal. It is made at the end of a England and Wales, the Court of the new rules. It is intended to year which has seen the most Session in Scotland and the High provide detailed practical guidance significant changes to the Tribunal’s Court in Northern Ireland can now to parties on the conduct of jurisdiction since its creation over transfer any “competition issue” proceedings before the Tribunal. 13 years ago. arising in private litigation to the Tribunal for determination. I am confident that the new rules REFORM OF PRIVATE provide a robust but flexible ENFORCEMENT The Tribunal obviously expects a framework within which the On 1 October 2015, the Consumer considerable growth in the volume Tribunal can case-manage, hear and Rights Act 2015 came into force. The of cases it receives and is preparing determine the complex and legislation establishes the Tribunal for this increase as well as for the challenging cases that are now as a major venue for private very different types of issues that being brought before it, as well as competition actions in the UK and collective proceedings and enhancing access to remedies for resolves the jurisdictional difficulties collective settlements will bring. consumers and SMEs that have which have blighted the Tribunal’s suffered from infringements of private actions jurisdiction in the NEW PROCEDURAL RULES competition law. past. It expands the Tribunal’s AND GUIDE jurisdiction to hear standalone IMPLEMENTATION OF THE EU On 1 October 2015, the Tribunal’s private actions, grant injunctive new procedural rules came into DAMAGES DIRECTIVE relief (except in Scottish cases) and force. As I mentioned in my previous Yet further reform of the UK operate a fast-track regime offering statement, the new rules were the competition system will take place expedited procedures and remedies. subject of a long and detailed when the Government implements The Tribunal is now the exclusive process involving an independent the European Union (EU) Damages forum for the new opt-out collective review led by a retired Lord Justice Directive (directive 2014/104/EU).