CAT dismisses Ping internet sales ban

The Competition Appeal Tribunal (CAT) has rejected an appeal against a decision of the Competition and Markets Authority (CMA) fining Ping GBP 1.45 million for infringing Article 101 of the TFEU and the Chapter I prohibition of the Competition Act 1998.

The CMA found that Ping operated an online sales ban without objective justification. This prevented UK retailers selling Ping golf clubs online. The CMA found that Ping could have promoted its instore fitting through less restrictive means than an internet sales ban.

The CAT rejected Ping’s claims that the CMA’s decision violated its human rights and was disproportionate and that the CMA erred in finding that the restriction was not objectively justified and did not qualify for individual exemption.

The CAT did find that the CMA erred in law by not conducting a full proportionality test as part of its Article 101(1) assessment but did not consider that this made any difference to the CMA’s overall finding.  The CAT said that a proportionality test is part of the Article 101(3) assessment and is necessary only if it is established that the measure infringes Article 101(1) (whether being a restriction of competition by object or effect).

As to the penalty, the CAT found that the CMA made an error in treating director involvement as an aggravating factor. The CAT said that although director level staff were negligent, this did not constitute an aggravating factor.  The CAT therefore reduced the penalty by GBP 200,000 to GBP 1.25 million.

Ping Europe Limited v Competition and Markets Authority [2018] CAT 13