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U.K. Competition Appeals Court Finds Reform Plan Less Than Appealing

Posted  August 30, 2013

The United Kingdom’s Competition Appeal Tribunal is expressing serious doubts that the British government’s plan to streamline competition appeals will actually reform the process for the better.

The Tribunal expressed its doubts and criticisms in a detailed response to the government’s plan for “Streamlining Regulatory and Competition Appeals,” which was published by the Department of Business Innovation and Skills (“BIS”) in June.  In making this response, the Tribunal cited its central role in the private enforcement of competition law in the U.K.

The BIS proposal has the announced goal of simplifying and accelerating the appellate process for both government competition authorities and regulators.  The Tribunal, however, expressed doubts that the reforms would achieve these goals, and concerns that they would be inconsistent with the approaches taken by EU courts and competition policy.

According to the Tribunal, the BIS proposal “contains little, if any, analysis of the competition system; it appears not to appreciate the significance of current expectations and developments at the European level in relation to appeals in competition cases; and it threatens to undermine a key element of the government’s current reform of the competition system.”

Although the Tribunal agreed with the goal of speeding up competition appeals, it disagreed with the government’s suggestion that its current appellate rules encouraged meritless appeals or allowed the introduction of too much new evidence on appeal.  The Tribunal stated that “We do not believe that placing specific restrictions upon the admission of such ‘new’ evidence, or upon CAT timetables or other procedures is either necessary or sensible.”

The Tribunal also criticized the proposal to lower the standard of review in competition cases.  The Tribunal disagreed with the proposal’s view that a lower standard of review was justified by the EU’s General Court standard of review for antitrust decision of the European Commission.  According to the Tribunal, the proposal “fails to take account of the way in which the EU courts are developing their own appeal procedures to comply with the fundamental requirement of compliance with the [European Convention on Human Rights], in the light of widespread and growing concern about the more limited scope which has at times been attributed to the review carried out by the General Court in that context.”  The Tribunal stated that “at a time when pressure for more intense judicial scrutiny within the EU competition regime is increasing, the government appears to be contemplating the restriction of such scrutiny in the U.K. system.”

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