Judgment of the Tribunal in connection with the issue of whether the appeals against the OFT’s decision of 15 April 2010 (“the Decision”) should be brought to an end, following the adjournment of the main hearing on 3 November 2011.
The OFT provided a written statement on 9 November 2011, in which it stated that it intended to contest the appeals in relation to each of the 15 infringing agreements identified in the Decision that are the subject of these appeals (“the Infringing Agreements”) on the basis of a refined case. The OFT’s primary case was that the restraints set out in its refined case “reflected part but not the whole of the Decision” and the appeals could and should proceed on that basis. If the Tribunal disagreed with that submission, the appeals could nonetheless proceed by reference to the Tribunal’s powers under paragraph 3 of Schedule 8 to the 1998 Act. The OFT did not consider that any additional factual evidence was required in order to decide the case but accepted that the refined case would need to be put to the expert economists.
A hearing was held on 17 and 18 November 2011 at which the Tribunal heard submissions on whether the appeals should be allowed to continue.
For the reasons set out in the Judgment, the Tribunal concluded that:
• The restraints that the OFT now wishes to prove are not part of, or within the Infringing Agreements condemned in the Decision;
• The Tribunal does not, therefore, have jurisdiction to continue to hear these appeals for the purpose of exercising its powers under paragraph 3(2) of Schedule 8 to the 1998 Act on setting aside the Decision;
• If the Tribunal did have such jurisdiction, it would exercise its discretion against continuing these appeals.
The Tribunal therefore allowed the appeals and quashed the Decision in relation to the appellants.
