Decision set aside and remitted to DGFT on the issue of the relevant market. This appeal concerns a decision, dated 16 July 2001, in which the Director found that Aberdeen Journals Limited (Aberdeen Journals), publisher of the paid-for daily Evening Express and the free weekly Herald & Post, had abused a dominant position in the market for the supply of advertising space in local newspapers (paid-for and free) in the Aberdeen area in the period from 1 to 29 March 2000. In the decision, the Director found, following an investigation of a complaint submitted by Aberdeen Independent Limited, publisher of the free weekly Aberdeen & District Independent (the Independent), that Aberdeen Journals had incurred losses on the Herald & Post by supplying advertising space in it at below average variable cost in an attempt to expel the Independent, its only rival, from that market, thus raising a presumption of predation that Aberdeen Journals failed to rebut. Accordingly the Director found there to be an infringement of the Chapter II prohibition. Aberdeen Journals was fined £1.328 million.
By a notice dated 14 September 2001, Aberdeen Journals appealed the decision to the Tribunal. In the light of the arguments of the parties, the Tribunal has considered first the issue whether the Director had correctly defined the relevant market, and in particular whether the Director was entitled to find in the decision that the relevant market in the Aberdeen area comprised the advertising space offered by the three local newspapers, Evening Express, Herald & Post, and Independent for the purposes of assessing dominance.
In the judgment delivered today the Tribunal finds that the treatment in the decision of the relevant product market is inadequate. Since this constitutes the foundation upon which the rest of the decision is based, the Tribunal has set aside the decision. The Tribunal has also decided not to admit in this appeal further material which in the Tribunal’s view should have been put to Aberdeen Journals by the Director in the course of the administrative procedure.
However, the Tribunal considers that, since this case raises a number of serious public interest issues, it should exercise its power to remit the market definition issue, and in particular which newspapers constitute the relevant product market, to the Director for further consideration. In order to prevent any undue delay in its judgment the Tribunal directs that any further decision by the Director be issued at most within two months from the completion of the relevant administrative procedure, such procedure to be commenced within two months of this judgment.
In the event that any further decision is appealed, the Tribunal would endeavour to allow the existing record to stand, or be consolidated with, any new appeal, so as to minimise duplication in any future proceedings.
The Tribunal emphasises that this judgment does not imply any finding by the Tribunal as to whether Aberdeen Journals has, or has not, a dominant position in any relevant market, and still less whether any such dominant position has been abused.
