By Marcus Leach
The Office of Fair Trading (OFT) is disappointed by today's (Tuesday's) Competition Appeal Tribunal (CAT) judgment in the tobacco appeals that saw a group of retailers overturn a ruling against them.
The CAT allowed the appeals against the OFT's Decision with regard to the six appellants. The judgment makes clear that it does not address any of the substantive issues raised in these appeals, stating: 'We have not come to any view as to whether the agreements described in the Decision or the restraints that the OFT now alleges were entered into would, if proven, amount to infringements of the Chapter 1 provision [of the Competition Act 1998].'
The OFT considered it important to investigate fully concerns around the pricing practices of the parties in this case and to make a decision about them. Despite the disappointing outcome in the particular facts and circumstances of this case, the OFT will continue to pursue high impact enforcement cases, including taking difficult or highly complex cases of this type that test the law.
The right to appeal against the OFT's decisions in Competition Act cases is an integral part of the competition regime, and it provides an important safeguard for parties. The CAT has a full merits review which enables it to take a fresh look at decisions, and to hear witness evidence, including new evidence not presented to the OFT, as in these appeals. The OFT has a good track record on appeals. Of the 52 competition decisions that the OFT has made against 504 parties, only nine of those decisions, six of which were infringement and three non-infringement decisions, have been overturned on liability. Twenty-three parties, or under five per cent, have been successful in overturning OFT decisions on liability.
The OFT will consider today's judgment in detail, including any broader implications for the way in which it conducts investigations and possible appeals.
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