British Sky Broadcasting Group Plc v The Competition Commission & Anor [2010] EWCA Civ 2 (21 January 2010)

British Sky Broadcasting Group Plc v The Competition Commission & Anor [2010] EWCA Civ 2 (21 January 2010)

The Court held that the Competition Appeal Tribunal correctly applied standard judicial review principles and was not required to apply a higher intensity of review due to its specialist expertise. The Commission's approach to standard of proof and counterfactual analysis was lawful, and its findings on material influence and substantial lessening of competition were adequately supported by evidence. The rejection of Sky's proposed alternative remedies was lawful and proportionate. The Tribunal erred in setting aside the Commission's finding on media plurality; the Commission's approach was correct in law.

Citation
[2010] EWCA Civ 2
Parties
Appellant (3066) Respondent (3053): British Sky Broadcasting Group plc; Appellant (3053) Respondent (3066): Virgin Media Inc; Respondent: The Competition Commission; Respondent: The Secretary of State for Business Enterprise and Regulatory Reform
Jurisdiction
England and Wales
Judgment Date
21 January 2010
Procedural Posture
Appeal From Competition Appeal Tribunal / Court of Appeal Judgment
Outcome
Appeals dismissed; Tribunal's decision largely upheld except on media plurality, where Commission's approach reinstated.
Legal Topics
Merger Control, Judicial Review, Material Influence, Remedies in Competition Law, Media Plurality
Competition Law Administrative Law Media Law Merger Control Judicial Review Material Influence Remedies in Competition Law Media Plurality

Case Brief

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Parties

British Sky Broadcasting Group plc

Appellant (3066) Respondent (3053)

Virgin Media Inc

Appellant (3053) Respondent (3066)

The Competition Commission

Respondent

The Secretary of State for Business Enterprise and Regulatory Reform

Respondent

Procedural Posture

Appeal From Competition Appeal Tribunal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the Competition Appeal Tribunal applied the correct intensity of judicial review 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 and Secretary of State lawfully rejected alternative remedies proposed by Sky

Ratio Decidendi

The Court held that the Competition Appeal Tribunal correctly applied standard judicial review principles and was not required to apply a higher intensity of review due to its specialist expertise. The Commission's approach to standard of proof and counterfactual analysis was lawful, and its findings on material influence and substantial lessening of competition were adequately supported by evidence. The rejection of Sky's proposed alternative remedies was lawful and proportionate. The Tribunal erred in setting aside the Commission's finding on media plurality; the Commission's approach was correct in law.

Court Disposition

Appeals dismissed; Tribunal's decision largely upheld except on media plurality, where Commission's approach reinstated.

Orders

  • Sky's appeal dismissed on all grounds except media plurality, where Tribunal's decision set aside and Commission's finding reinstated.
  • Virgin's contingent appeal on remedy did not arise and was dismissed.