Court of Appeal reinstates CMA’s market investigation into Google and Apple’s mobile ecosystems

 

Court of Appeal reinstates CMA’s market investigation into Google and Apple’s mobile ecosystems

The Court of Appeal has upheld an appeal by the Competition and Markets Authority against a Competition Appeal Tribunal (CAT) ruling which quashed the decision of the CMA to make a market investigation reference into the supply of mobile browsers and the distribution of cloud gaming services in the UK.

The case has its origins in the CMA’s final report on a market study in June 2022, where the CMA consulted on making the market investigation reference. The market investigation reference was made on 22 November 2022.

The Court of Appeal held that the CAT had erred in its interpretation of the Enterprise Act in quashing the decision to make a market reference. The section 131B time limits apply to the consultation process within a market study and do not limit the CMA's standalone power to make a market investigation reference under section 131 of the Enterprise Act.

The Court of Appeal rejected the CAT’s interpretation of the CMA’s jurisdiction to make a reference, stating that this could have “serious consequences”, entailing that the CMA does not have jurisdiction to investigate Apple or Google for similar conduct in later years following a market study. The Court of Appeal said that there is “no overarching principle that an undertaking is entitled to be investigated once, and once only”.

Competition and Markets Authority v Apple Inc and others [2023] EWCA Civ 144