Competition Law in UK Law

It is, to my mind, self-evident that concurrent investigations in the UK and in Europe would be both oppressive and mutually destructive. I accept, therefore, that the duty of sincere cooperation does go beyond avoiding inconsistent decisions and extends to overlapping jurisdictions.

Counsel for OFT and Aer Lingus also rely on the provisions of the Enterprise Act to which I have referred. They point out that they lay down a strict timetable from initial reference to final conclusion without any power comparable to that of a court to stay proceedings at any stage if it thinks fit. There is no point short of a decision by the Competition Commission at which the process could be halted in the manner suggested by Ryanair.

If the appeals of either or both Ryanair or Aer Lingus had succeeded there would have been an immediate clash of jurisdictions. The duty of sincere cooperation, which had existed at all material times, necessarily required OFT to desist from making any reference during that period.

The 1998 Act recognised that competition law was an area which justified a specialist court to deal, not just with appeals in cases concerning public enforcement of the competition rules, but also with some private law claims for damages. One obvious feature of competition litigation is the almost ubiquitous presence of expert economic evidence, often of a complex and technical nature.

The Tribunal cannot know what are the competing demands on the resources of the particular regulator at the given time. It may well be that it cannot properly be told of this by the regulator because of issues of confidentiality as to current investigations. It cannot, therefore, form any proper view as to the relative priority of one case as compared with others.

In summary, procedural unfairness is well-established and well-understood. “whether there has been unfairness on the part of the authority having regard to all the circumstances” Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged.