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[Ryuu96]

The Appeal Process Against the CMA in UK

Thanks to Pixis | Post 1,939

OK so there's some confusion here about what can and cannot be appealed and how this works with the CMA, and then various linking to CAT and/or court cases involving the CMA. I will try and break this down slightly (bearing in mind this no easy task!).

We are talking about a merger here which, for reference, the CMA are given jurisdiction to review (provided it meets the requirements therein) pursuant to the Enterprise Act in the UK. Under the Enterprise Act, parties aggrieved by a decision can appeal to CAT - however, and this is the crucial component - CAT will only apply a judicial review standard when reviewing a decision. In other words, they will not engage in the substantive merits of the CMA's decision but look only as to whether the way in which that decision was made was illegal or otherwise had some procedural impropriety involved (broadly speaking). As such, CAT will never (and cannot, under the Enterprise Act) review a decision of the CMA solely based on the conclusion the CMA came to.

If CAT determines any of the above has been engaged, it will send the decision back to the CMA again (typically). The CMA must then engage the review process again (but of course fixing the procedural issue that arose) and then it may make another decision. If the CMA makes the same decision - that is essentially the end of the line of appeals.

There is an extremely limited secondary appeal process under the Enterprise Act where if CAT permits, it can allow an appeal to the Court of Appeal by an afflicted party but only on a question of law (there is also a very very difficult appeal procedure directly to the COA if CAT deny the appeal, again on a question of law basis). A question of law can only arise effectively if CAT in its review reached a conclusion either a) on which no reasonable person could have come to or b) where there is no evidence to support a finding of fact on which CAT's decision was based. These are extremely high thresholds and again only, when boiled down, go to CAT's judicial review of CMA's decision. As such, there is again no means of actually appealing the conclusions made by the CAT (and in turn the CMA) in respect of the merits of their decision vis-a-vis a merger.

If you therefore see the CMA engaging in high court decisions, or decisions re fines like the ones above - these are not typically in respect of mergers but in respect of unrelated provisions of the Competition Act (which is another prominent piece of competition legislation in the UK) which deal with fixing agreements, penalties and occasionally abuses of dominant position (as well as some costs cases).

Source - me, M&A lawyer, qualified in the UK (involved in CMA cases, Commission cases and offshore competition cases).

Hope that helps!

Source: Idas

Last edited by Ryuu96 - on 13 May 2023