A single Judgment of the Tribunal and the High Court in respect of two proceedings that engage a common issue of law concerning the territorial scope of section 26 of the Competition Act 1998 (“CA 98”).
The application before the Tribunal involved an appeal by Bayerishe Motoren Werke AG (“BMW AG”) pursuant to section 40(A)(9) of the CA 988 and section 114 of the Enterprise Act 2002 against the decision of the Competition Market Authority (“CMA”) dated 6 December 2022 to impose a penalty on BMW AG for failure to comply with a notice under section 26 of the CA 98. The amount of the penalty is the maximum permitted by statute, which is a fixed sum of £30,000 plus a continuing daily fine of £15,000 since the date of the decision. The Respondent challenged the lawfulness of the imposition of a penalty on a foreign-domiciled company with no presence in the United Kingdom for failure to comply with a notice under section 26 requiring the production of specified documents and information held by it outside the jurisdiction for the purpose of an investigation commenced by the CMA.
The application before the High Court involved a claim for judicial review by Volkswagen AG against the decision of the CMA dated 29 April 2022 to issue Volkswagen AG with a section 26 notice. The Claimant challenged the lawfulness of the issuance of a notice under section 26 requiring a foreign-domiciled company with no presence in the United Kingdom to produce specified documents and information held by it outside the jurisdiction for the purpose of an investigation commenced by the CMA. Given the common issue of law for determination in the two proceedings, the claim for judicial review was allocated to the President of the Tribunal to determine in his capacity as a Justice of the High Court.
A single Judgment determining both proceedings followed, with the appeal being a matter for the three person panel constituted in the Tribunal and the claim for judicial review being a matter for the President of the Tribunal (sitting as a Justice of the High Court of England and Wales) alone. The Judgment of the Tribunal is unanimous and the Judgment of the President in the claim for judicial review is that same as that of the Tribunal.
In summary, the Tribunal unanimously allowed the appeal in respect of BMW AG and the President granted VW AG permission to bring a claim for judicial review and that claim for judicial review succeeded. Specifically, the decision to issue a notice and the decision to impose a penalty in respect of foreign-domiciled companies with no presence in the United Kingdom in relation to the production of specified documents and information held by those companies outside the jurisdiction was ultra vires section 26 of the CA 98.
