The Competition Appeal Tribunal (CAT) has found in favour of the OFT in an appeal relating to the closure by the OFT of two investigations on the basis that they no longer constituted an administrative priority for the OFT.
In June 2006 the OFT took the administrative decisions to close two linked investigations. One concerned an alleged collective boycott of Cityhook Limited by the United Kingdom Cable Protection Committee (UKCPC) and certain individual committee members in breach of the Chapter I prohibition of the Competition Act 1998. The other concerned an alleged collective setting of wayleave fees by the UKCPC and certain individual committee members also in breach of the Chapter I prohibition of the Competition Act 1998.
These decisions were appealed to the CAT by Cityhook Limited, which claimed that the OFT had reached non-infringement decisions in connection with both case closures which the Tribunal should review. The CAT ruled that the OFT did not take a decision capable of being appealed to the CAT in connection with either case closure and therefore Cityhook's appeal was inadmissible.
It is of note that several features of the OFT’s decision gave the CAT concern, including the use of the term ‘hard-core’ infringement in the final case closure letter and the lack of clarity as to why the object-based infringement was not expressly addressed in that letter. The CAT considered that the OFT’s approach to these matters was unclear and remained so even at the hearing.
The Tribunal considers that the lack of clarity in the final case closure letter justified Cityhook’s decision to bring an appeal. Nevertheless, after a detailed review of the evidence before them, the Tribunal has unanimously decided that the appeal is inadmissible.
The CAT noted that it is a somewhat incongruous result that a sufficiently interested person has a right of appeal on the merits to the Tribunal against a non-infringement decision, whereas in cases where the evidence supports a finding of a potential infringement, but the authority chooses to close the case file without reaching a final decision, such a person has no right of appeal on the merits.