Judgment of the Tribunal on an application by the Applicants for a review under section 179 of the Enterprise Act 2002 (“EA2002”) of the decision of the Office of Fair Trading (“OFT”), taken on 1 March 2012, not to conduct a short update review to see whether to make a reference to the Competition Commission (“CC”) of the market for newspaper and magazine distribution in the UK (“the 2012 Decision”). The short update review being debated in the 2012 Decision followed on from a decision of the OFT taken in September 2009 (“the 2009 Decision”) in which it decided not to refer the market to the CC pursuant to section 131 EA2002, but indicated that it would consider, after a period of two years from the publication of the 2009 Decision, whether to undertake a short update review of the sector. The OFT stated in the 2009 Decision that such a review would only take place where it would be justified following an assessment under the OFT’s prioritisation principles undertaken at that point in time.
Having considered both the 2009 Decision and the 2012 Decision, the Tribunal concluded that its task was to consider whether, looking at the 2012 Decision against the background of the 2009 Decision, the OFT could reasonably have concluded on the basis of the evidence before it that it was not appropriate to carry out a short update review to see if the market should be referred to the CC. The Tribunal rejected the Applicants’ challenge to the OFT’s finding, in the 2012 Decision, that the likely consumer benefit did not justify it undertaking the short update review envisaged at the end of the 2009 Decision. The Tribunal also rejected the Applicants’ submission that the OFT’s assessment of its priorities as regards the strategic significance of any update review was flawed. Accordingly, the Tribunal dismissed the Applicants’ application for review.
