Virgin Media Inc. v The Competition Commission & Anor [2008] CAT 25 (29 September 2008)

Virgin Media Inc. v The Competition Commission & Anor [2008] CAT 25 (29 September 2008)

The Tribunal held that the Competition Commission and Secretary of State applied the correct legal standards in finding a relevant merger situation and substantial lessening of competition from Sky's acquisition of ITV shares. The Tribunal rejected Sky's argument for a heightened standard of proof or more granular analysis of future events, finding the Commission's approach to prospective analysis and use of plausible examples appropriate. The Tribunal also found the remedy of partial divestiture to below 7.5% was proportionate and rational. Virgin's arguments regarding misapplication of the media plurality public interest consideration and inadequacy of the remedy were also rejected. The...

Citation
[2008] CAT 25
Parties
Applicant: British Sky Broadcasting Group plc; Applicant: Virgin Media, Inc.; Respondent: The Competition Commission; Respondent: The Secretary of State for Business, Enterprise and Regulatory Reform
Jurisdiction
United Kingdom
Judgment Date
29 September 2008
Procedural Posture
Judicial Review of Competition/merger Decision / Judgment on Applications for Review Under Section 120 of the Enterprise Act 2002
Outcome
Applications dismissed
Legal Topics
Merger Control, Judicial Review, Substantial Lessening of Competition, Public Interest Considerations, Remedies in Merger Cases, Plurality in Media Ownership
Competition Law Administrative Law Media Law Merger Control Judicial Review Substantial Lessening of Competition Public Interest Considerations Remedies in Merger Cases +1 more

Case Brief

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Parties

British Sky Broadcasting Group plc

Applicant

Virgin Media, Inc.

Applicant

The Competition Commission

Respondent

The Secretary of State for Business, Enterprise and Regulatory Reform

Respondent

Procedural Posture

Judicial Review of Competition/merger Decision / Judgment on Applications for Review Under Section 120 of the Enterprise Act 2002

Legal Issues

  1. 1 Whether the Competition Commission and Secretary of State erred in finding a relevant merger situation and substantial lessening of competition (SLC) from Sky's acquisition of ITV shares
  2. 2 Whether the remedy imposed (partial divestiture) was proportionate and rational
  3. 3 Whether the public interest consideration regarding media plurality was correctly applied

Ratio Decidendi

The Tribunal held that the Competition Commission and Secretary of State applied the correct legal standards in finding a relevant merger situation and substantial lessening of competition from Sky's acquisition of ITV shares. The Tribunal rejected Sky's argument for a heightened standard of proof or more granular analysis of future events, finding the Commission's approach to prospective analysis and use of plausible examples appropriate. The Tribunal also found the remedy of partial divestiture to below 7.5% was proportionate and rational. Virgin's arguments regarding misapplication of the media plurality public interest consideration and inadequacy of the remedy were also rejected. The...

Court Disposition

Applications dismissed

Orders

  • Applications for review by Sky and Virgin dismissed
  • No quashing of the Commission's Report or Secretary of State's Decision