The Court of Appeal has upheld the CMA’s decision to launch a market investigation into mobile browsers and cloud gaming, overturning a previous ruling quashing the investigation
Today’s unanimous judgment overturns the Competition Appeal Tribunal’s (CAT) previous decision in March 2023 which upheld an appeal by Apple and suspended the Competition and Markets Authority’s (CMA) investigation pending the Court of Appeal’s judgment.
However, the CMA’s market investigation remains on hold pending the determination of any application for permission to appeal to the Supreme Court.
Sarah Cardell, Chief Executive of the CMA, said:
Background to the Case
On 22 November 2022, the CMA exercised its power under the Enterprise Act 2002 to make a market investigation reference in relation to the market for mobile browsers and cloud gaming.
The lawfulness of that decision was challenged by Apple by way of an appeal to the CAT, which was heard on 10 March 2023.
In a judgment handed down on 31 March 2023, the CAT found the CMA did not have the power to make a market investigation reference if it had previously decided not to do so during a market study into the same matter. As a result of this finding, the CAT ruled that the CMA’s market investigation reference should be quashed.
The Court of Appeal’s Judgment
The CMA appealed the CAT’s judgment and in a unanimous judgment by Lord Justice Green, Lord Justice Arnold, and the Chancellor of the High Court, it was found that the CAT had erred in its interpretation of the Enterprise Act 2002 and that such an interpretation, if uncorrected, would have “serious consequences” on the CMA’s ability to promote competition and protect consumers.
The Court of Appeal ruled that the CMA’s standalone power carries with it sufficient and important public law safeguards and that “there is no overarching principle that an undertaking is entitled to be investigated once and only once”.
On the Enterprise Act in general, the Court held that whilst the statute contained protections against undue investigatory burdens, “the principal purpose of the Act is to promote competition and protect consumers” and, in its view, the Tribunal “lost sight of this consideration”.
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