Judgment on relief in Tesco’s application for review pursuant to section 179 of the Enterprise Act 2002. The judgment addressed two main sets of issues.
The first set of issues concerned whether it is possible or appropriate for the Tribunal to refer relevant matters back to the Commission for reconsideration and a new decision pursuant to subsection 179(5)(b) of the Act once the time limit in subsection 137(1) has expired.
The Tribunal concluded that where the original decision has been quashed by the Tribunal under subsection 179(5)(a), the time limit in subsection 137(1) does not limit the power in subsection 179(5)(b) to refer a matter back to the Commission for reconsideration and a new decision. It has no application to a new decision. Were it otherwise, as a practical matter, the Commission would be deprived in very many (probably virtually all) of such cases of an opportunity to reconsider the quashed aspects of its report. If Parliament had intended to impose such a drastic limitation on the important power to refer a matter back for reconsideration it is inconceivable that the Act would not have expressly provided for it.
As to whether it was appropriate in this case for the Tribunal to refer the matter in question back to the Commission for reconsideration, the Tribunal concluded that it was. The grounds on which the competition test was quashed did not preclude the possibility that, the matters in question having been assessed and taken into consideration in accordance with the Tribunal’s ruling, the test could lawfully be recommended by the Commission. In those circumstances it cannot be said that it would be otiose or futile for this matter to be referred back to the Commission for reconsideration under subsection 179(5)(b). The Commission offered an undertaking to reconsider and reach a new decision within six months which, in the Tribunal’s view, would be a reasonable period of time in all the circumstances.
The second set of issues concerned the extent to which Report should be quashed in the light of the Tribunal’s conclusions, and whether the order referring the matter back should limit the ability of the Commission to consider alternative remedies to address the adverse effects on competition, should the Commission on reconsidering the matter conclude that the competition test originally recommended was nor a permissible or appropriate remedy. On this the Tribunal decided that it was sufficient for the Tribunal simply to indicate that the Commission’s decision to make the recommendation in question would be quashed. The effects of that quashing upon the reasoning, findings and other aspects of the Report were, at least in the first instance, for the Commission to determine in the light of the grounds on which the decision had been quashed, as set out in the main judgment of 4 March 2009. As for the form of the order, the Tribunal decided that it was not appropriate to limit the ability of the Commission to consider alternative remedies if necessary.
