In its ruling1 of
The Court of Appeal decided that the CMA's ability to conduct competition investigations would be compromised if it is not able to obtain information from overseas, which would create "a perverse incentive for conspirators to organise cartels directed at harming the
The CMA has welcomed the ruling which, in light of the increasingly cross-border nature of its work involving multi-national businesses, strengthens its investigatory and enforcement powers.
Background
The case arose in relation to information requests issued by the CMA to
The CAT found that the CMA had acted beyond its powers in issuing section 26 notices to the German-domiciled parent companies of
The CAT drew on the fact that both
The Court of Appeal's ruling
The CMA appealed the joint judgment by the CAT and Administrative Court on two grounds:
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The extraterritorial application of the substantive prohibitions of the CA98 in section 2 and section 18 and the CMA's powers to carry out an investigation under section 25 would be frustrated if section 26 did also not have extraterritorial effect.
- The reference to "any person" in section 26(1) captures all documents held by all members of an undertaking where any member of that undertaking is present in the
UK . - Section 25 provides the CMA with the power to conduct an investigation where there are reasonable grounds for suspecting that there is an agreement that may affect trade within the
UK and has as its object or effect the prevention, restriction or distortion of competition within theUK . The language of sections 2 and 25 indicates that both the prohibitions and the investigation and enforcement regimes are extraterritorial. - Section 26 is one of the CMA's investigatory and enforcement powers and enables it to request information and disclosure of documents for the purpose of an investigation. It is related to and implements two provisions which are extraterritorial and there is nothing in the wording of section 26 that indicates
Parliament's intention to limit its territorial effect. The CAT did not consider the role of section 26 in the context of the combined effect of section 2 and 25 CA98. For section 26 not to be extraterritorial there would need to be some clear indication that it was intended to have a different territorial ambit to sections 2 and 25. That is not the case and theCourt of Appeal therefore concludes that it follows thatParliament intended section 26 to have the same territorial effect as section 2 and 25. - Similarly when considering the scheme of enforcement, context and purpose of the legislation the
Court of Appeal concluded that it is not possible to infer thatParliament intended to avoid extraterritorial effect. Cartels are typically covert and are often international in scope and competition authorities around the world may have to target their powers on actors located abroad when exercising their duty to protect their domestic markets and consumers. This is achieved by competition authorities around the world through broad extraterritorial regulatory and investigatory powers which can be exercised with the necessary caution and pragmatism when dealing with undertakings located outside their jurisdiction. - Taking into account the effectiveness and practicality of the regime, the Court concluded that if the CMA is denied the power to exercise section 26 extraterritorially this would create "a gaping lacuna" in the effectiveness of the CMA to exercise its statutory powers. The absence of such power would create a perverse incentive for conspirators to move offshore in order to organise cartels directed at harming the
UK market, who would be more or less immune from investigation. This would particularly be easy to achieve in the digital era. - There is also nothing in the legislative history that points to
Parliament's intent to create a competition law enforcement regime with no need for extraterritorial investigatory and enforcement powers. - The Court of Appeal also refused to accept the argument that the fact that the CA98, as initially enacted, contained criminal sanctions for failing to comply with information requests, supports the view that this power is not extraterritorial. The current version of the CA98 no longer imposes criminal sanctions and for the purpose of
Parliament's intent it is necessary to look at the version of the legislation as it stood as of the date of the decision being challenged, when sanctions for failure to comply with section 26 notices were civil sanctions. - There is nothing in logic, policy, case law or legislative history to support a contention that
Parliament intended to reject the concept of joint and several liability and responsibility, as established under the EU law concept of joint and several liability of entities within the same undertaking (as evidenced in recent EU cases such as Sumal). It was "jurisprudentially inconsistent" to argue that serving a notice on a subsidiary was legally insufficient to gain access to the documents of an entity within the same undertaking over which the subsidiary had no control. The principle of separate legal personality does not apply as an undertaking is an "indivisible entity". - The CMA's obligation to act in accordance with fundamental rights when exercising its section 26 powers does not mean that it can only ever exercise its power against a discrete legal entity within a wider undertaking. The Court of Appeal considered that, on the facts of the case, there was no suggestion that procedural rights had been violated. Notices were served to the
UK subsidiaries and brought to the attention of the German parent companies, who had "exercised their right of access to a court and to a fair and objective adjudication of their challenges". - Looking at the legislative purpose of section 26 CA98, the
Court of Appeal considered that the CMA would become "largely toothless when confronting international cartels" if it was unable to exercise its section 26 powers over an undertaking and was restricted to requesting information and evidence over which entities operating within theUK held physical or legal control. - The Court of Appeal rejected the position alluded to by the CAT that notices served on an undertaking as a whole, could risk notices being brought to the attention of entities who do not know the full extent of the undertaking to which they belong, meaning that notices are not properly brought to the attention of the entities comprising the relevant undertaking. The Court of Appeal considered this possibility to be "theoretical" and an "improbable scenario" and noted its lack of awareness of the CMA ever having exercised its powers in this way.
Ground I: Extraterritoriality
The Court of Appeal noted that in determining whether legislation has extraterritorial effect a court must, so long as its language allows, apply an interpretative presumption against extraterritoriality. This was confirmed by the Supreme Court in KBR, which held the principle to be a starting point for consideration of the scope of a legislative measure.
But an extraterritorial intent can also be implied, taking into account a range of considerations such as the purpose, scheme and context of the legislation, the practicality of enforcement, the legislative history and the impact on comity. Based on a careful analysis of the following factors the
- Section 2(1) CA98 (the Chapter I prohibition) CA98 does have extraterritorial effect. It includes agreements between undertakings physically located in a third country with no physical presence in the
Ground II: "Undertaking"
The Court of Appeal focussed on whether the meaning of an "undertaking" under the CA98 excluded the legal concept of joint and several liability and responsibility. In considering
The Court of Appeal considered that the CMA had adopted a "sensible course of action" by serving a notice on the
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It is inferred from the statutory language in the CA98 that that where
Changes under the Digital Markets, Competition and Consumers Bill
The Court of Appeal's position is also about to be endorsed further through amendments to the CA98, which would effectively have reversed the joint judgment by the CAT and Administrative Court if the
The Bill also extends the territorial scope of the Chapter I prohibition so that the prohibition applies to agreements implemented outside the
Footnote
1. Judgment made available on Brick Court Chambers website.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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