Judgment of the Tribunal on an application by Tesco plc (“Tesco”) for a review under section 179 of the Enterprise Act 2002 of part of the decision of the Competition Commission (“the Commission”) contained in a Report entitled “The supply of groceries in the UK: market investigation” dated 30 April 2008 (“the Report”).
Tesco’s application challenged the lawfulness of the Commission’s decision to recommend the introduction of a new test (“the competition test”) into the consideration of planning applications in respect of large grocery stores. The aim of the competition test was to ensure that local planning authorities withheld planning permission for the construction or expansion of a large grocery store if there was already a high level of concentration in the local market for large grocery stores, and the retailer applying for permission had (or would have had) a substantial part of the market. Tesco submitted that the Commission’s decision in this regard failed properly to take account of relevant considerations which ought to have formed part of its assessment.
The Tribunal unanimously concluded that the Commission, in the Report, had failed properly to consider certain matters which were relevant to its recommendation that the competition test be imposed as part of a package of remedies to address the adverse effect on competition identified by the Commission. None of the matters in question could be dismissed as incapable of affecting the Commission’s recommendation in that regard.
