Judgment of the Tribunal on an application by Apple Inc and Others (together, the “Applicants”) for a review under section 179 of the Enterprise Act 2002 (“EA 2002”) of the decision of the Competition and Markets Authority (the “CMA”) to make a market investigation reference under section 131 EA 2002 into the supply of mobile browsers and mobile browser engines and the distribution of cloud gaming services through app stores on mobile devices in the UK (the “Decision”).
On 15 June 2021, the CMA published a market study notice entitled Market Ecosystems under section 130A EA 2002. On 14 December 2021, the CMA issued a decision entitled Mobile Ecosystems: Notice of decision not to make a market reference under section 131 of the Enterprise Act 2002. On the same date, the CMA issued an interim report in relation to the market study. On 10 June 2022 the CMA published a final report, explaining the CMA’s decision to consult on a market investigation reference into the supply of mobile browsers and mobile browser engines and the distribution of cloud gaming services through app stores on mobile devices. The Decision was then taken on 22 November 2022.
In summary, the Applicant contented that the decision was ultra vires because it was outside the statutory time-limits stipulated in sections 131B(4), 131B(5) and 131B(6) of the EA 2002. For the reasons given in the judgment, the Tribunal unanimously allowed the Applicants’ challenge.
The Tribunal found that section 131A EA 2002 did apply to the Decision, as the CMA had published a market study notice, and was proposing to make a reference under section 131 EA 2002 in relation to the matter specified in the market study notice. The time limits in section 131B EA 2002 therefore applied. The CMA failed to comply with these deadlines. The deadline for a notice of a proposed market investigation reference was 15 December 2021, whereas the CMA published its proposal on 10 June 2022, and the deadline for the period of consultation to begin was 15 December 2021, whereas the CMA commenced its consultation on 10 June 2022. This means the Decision lacks the statutory pre-requisites for a valid decision, was ultra vires, and must be quashed.
