Judgment on an appeal brought by JJ Burgess & Sons (“Burgess”), a funeral director, against a decision by the OFT dated 29 June 2004 in which the OFT found that W Austin and Sons (Stevenage) Limited (“Austins”) had not abused a dominant position contrary to section 18 of the Competition Act 1998 in refusing Burgess access to the Harwood Park Crematorium. Austins owned and controlled Harwood Park Crematorium and also competed with Burgess in the downstream market for funeral-directing services.
The Tribunal set aside the OFT’s decision on the grounds that the OFT’s analysis of the relevant geographic market for crematoria services and the issue of abuse was inadequately supported by the evidence and contained errors of fact and law and that the decision should, in any event, be set aside for procedural reasons.
The Tribunal replaced the OFT’s decision with its own decision, pursuant to Schedule 8, paragraph 3(2)(d) and (e) of the Competition Act 1998. The Tribunal found that Austins had a dominant position within at least the Stevenage/Knebworth area in respect of both the supply of crematoria services and the supply of funeral-directing services. The Tribunal also found that both the terms on which Burgess was allowed access to Harwood Park in the period leading up to 22 March 2004 and the refusal of access to Harwood Park after that date constituted an abuse within the meaning of the Chapter II prohibition of either or both of these dominant positions and that the abuse directly affected Burgess’s branch in Stevenage/ Knebworth. The Tribunal further found that the Chapter II prohibition extended to cover the actions of Austins/Harwood Park having material effects on competition in the Welwyn/Welwyn Garden City area, even assuming that Austins/Harwood Park had merely a leading, but not a dominant, position in that area.
