• Another Successful Appeal against a Regulator's Decision in the UK
  • March 17, 2010 | Author: Robert Rakison
  • Law Firm: McGuireWoods LLP - London Office
  • On Feb. 11, 2010, the UK Competition Appeal Tribunal (CAT), by agreement with the UK Competition Commission (CC) and third-party appellant CTS Eventim, quashed the CC's report into the Ticketmaster/Live Nation merger. This followed an appeal lodged by CTS Eventim on grounds of procedural fairness.

    The CC cleared the merger in its report but CTS Eventim, which had, prior to the merger announcement, reached an agreement with Live Nation to provide ticketing services for the latter's live music events and venues in the UK, brought an appeal to the CC on various grounds. One of the grounds was that it had been denied a fair hearing. The CC, having considered the grounds, took the view that the challenge based on lack of a fair hearing was arguable in the circumstances of the case, and that it would not be efficient to argue this issue before the CAT. It therefore asked the CAT to quash the report, so that the CC would immediately be able to reconsider the case and report again.

    This CAT proceeding is just one of a number of recent appeals to the CAT against decisions of UK regulators in relation to mergers and market investigations. Another high-profile example concerned the CC's report on the British Airports Authority (BAA) airports market investigation. The CAT upheld an appeal by BAA that the investigation was tainted by apparent bias on the part of one of the members of the investigating team, and partially quashed the report. The CC is seeking to appeal to the UK Court of Appeal.

    In addition to victories in the CTS Eventim and BAA cases, third parties have had recent successes in several other cases on appeal. It is therefore clear that the authorities in the UK can successfully be challenged in relation to merger and market investigation (as well as general competition law) decisions and that possible grounds of appeal are wide. There is no doubt this will only encourage others to try their hand.