Facebook, Inc. & Anor v The Competition And Markets Authority

Facebook, Inc. & Anor v The Competition And Markets Authority

The CMA’s powers under section 72 of the Enterprise Act 2002 are not limited to preserving divestiture as a remedy but extend to prohibiting any action by merging parties that might prejudice the reference or impede justified action, including actions affecting the competitive structure of the market during investigation. The Tribunal correctly held that the CMA’s broad IEO and information requests were rational, proportionate, and within its statutory discretion, especially given Facebook’s lack of cooperation.

Parties
Appellant: Facebook, Inc.; Appellant: Facebook UK Limited; Respondent: Competition and Markets Authority
Jurisdiction
England and Wales
Judgment Date
13 May 2021
Procedural Posture
Civil Appeal / Judgment on Appeal From Competition Appeal Tribunal
Outcome
appeal dismissed
Legal Topics
Statutory Interpretation, Scope of Interim Measures, Proportionality of Regulatory Action, Judicial Review Standards
Competition Law Merger Control Administrative Law Statutory Interpretation Scope of Interim Measures Proportionality of Regulatory Action Judicial Review Standards

Case Brief

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Parties

Facebook, Inc.

Appellant

Facebook UK Limited

Appellant

Competition and Markets Authority

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From Competition Appeal Tribunal

Legal Issues

  1. 1 Proper construction of 'pre-emptive action' under section 72(8) of the Enterprise Act 2002
  2. 2 Scope of CMA's powers to impose Initial Enforcement Orders affecting acquirer’s business
  3. 3 Whether CMA’s refusal to grant derogations was irrational or disproportionate

Ratio Decidendi

The CMA’s powers under section 72 of the Enterprise Act 2002 are not limited to preserving divestiture as a remedy but extend to prohibiting any action by merging parties that might prejudice the reference or impede justified action, including actions affecting the competitive structure of the market during investigation. The Tribunal correctly held that the CMA’s broad IEO and information requests were rational, proportionate, and within its statutory discretion, especially given Facebook’s lack of cooperation.

Court Disposition

appeal dismissed

Orders

  • Facebook’s appeal is dismissed in its entirety.
  • The Tribunal’s judgment is upheld.