British Sky Broadcasting Group Plc v The Competition Commission & Anor

British Sky Broadcasting Group Plc v The Competition Commission & Anor

The Tribunal was correct to apply standard judicial review principles and not a higher intensity of review. The Commission lawfully applied the standard of proof and counterfactual analysis, and its rejection of Sky's alternative remedies was not irrational. On media plurality, the Commission was correct to consider the actual extent of control in its qualitative assessment, and section 58A(5) does not require the Commission to ignore the reality of limited control when assessing sufficiency of plurality.

Parties
Appellant: British Sky Broadcasting Group plc; Appellant/respondent: Virgin Media Inc; Respondent: Competition Commission; Respondent: Secretary of State for Business Enterprise and Regulatory Reform (now for Business Innovation and Skills)
Jurisdiction
England and Wales
Judgment Date
21 January 2010
Procedural Posture
Civil Appeal / Appeal From Competition Appeal Tribunal
Outcome
Sky's appeal on competition points dismissed; appeal on media plurality allowed; Respondent's Notices of the Commission and Secretary of State allowed; Virgin's contingent appeal does not arise.
Legal Topics
Merger Control, Judicial Review, Media Plurality, Remedies in Competition Law
Competition Law Media Law Administrative Law Merger Control Judicial Review Media Plurality Remedies in Competition Law

Case Brief

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Parties

British Sky Broadcasting Group plc

Appellant

Virgin Media Inc

Appellant/respondent

Competition Commission

Respondent

Secretary of State for Business Enterprise and Regulatory Reform (now for Business Innovation and Skills)

Respondent

Procedural Posture

Civil Appeal / Appeal From Competition Appeal Tribunal

Legal Issues

  1. 1 Whether the Tribunal erred in law regarding the intensity of judicial review to be applied under section 120 of the Enterprise Act 2002
  2. 2 Whether the Competition Commission applied the correct standard of proof and counterfactual analysis in finding a relevant merger situation and substantial lessening of competition
  3. 3 Whether the Commission's rejection of alternative remedies proposed by Sky was lawful

Ratio Decidendi

The Tribunal was correct to apply standard judicial review principles and not a higher intensity of review. The Commission lawfully applied the standard of proof and counterfactual analysis, and its rejection of Sky's alternative remedies was not irrational. On media plurality, the Commission was correct to consider the actual extent of control in its qualitative assessment, and section 58A(5) does not require the Commission to ignore the reality of limited control when assessing sufficiency of plurality.

Court Disposition

Sky's appeal on competition points dismissed; appeal on media plurality allowed; Respondent's Notices of the Commission and Secretary of State allowed; Virgin's contingent appeal does not arise.

Orders

  • The findings and remedy as to relevant merger situation and substantial lessening of competition are upheld.
  • The Tribunal's decision on media plurality is set aside and the Commission's interpretation is restored.