Competition Appeal Tribunal
Bayerische Motoren Werke AG v Competition and Markets Authority
Rex (Volkswagen Aktiengesellschaft) v Competition and Markets Authority
[2023] CAT 7
2023 Jan 26, 27; Feb 8
Marcus Smith J (President), Michael Cutting, Tim Frazer
CompetitionInvestigatory powersDocuments and informationCompetition and Markets Authority issuing notices requiring provision of informationNotices addressed to undertaking comprising legal persons in multiple jurisdictionsWhether component entities with no United Kingdom territorial connection required to respond to notices Competition Act 1998 (c 41), s 26

The Competition and Markets Authority issued two notices pursuant to section 26 of the Competition Act 1998 requiring the provision of specified information. Each notice was addressed to an English registered company, its ultimate parent company and any other legal entities within the same undertaking. The parent companies were both incorporated and domiciled in Germany, with no presence in the United Kingdom. One of the parent companies appealed from the imposition of a penalty against it by the Competition and Markets Authority for failure to comply with the section 26 notice. The other sought judicial review of the decision to issue the section 26 notice. Both the appeal and the judicial review claim were brought on the ground that the Competition and Markets Authority’s power under section 26 to require “any person” to produce specified information did not mean it could require a response from a foreign company. The Competition and Markets Authority contended that since the definition of “any person” in the 1998 Act expressly extended to “any undertaking”, a single section 26 notice addressed to an undertaking, triggered an obligation to respond in every legal or natural person within that undertaking, provided only that one such person had a UK territorial connection.

On the appeal and the claim for judicial review—

Held, appeal and claim for judicial review allowed. The extended definition of “person” in section 26 of the Competition Act 1998 meant that a section 26 notice could be “served” on an undertaking, although since an undertaking was an economic entity without the attributes of legal persons like companies which enabled service, in order to be effective the notice had to be brought to the attention of a natural or legal person. Where a notice clearly addressed to an undertaking as a whole was served on a component entity with a UK territorial connection, that entity was obliged to provide the Competition and Markets Authority the documents and information responsive to the notice in its own control, including those documents held abroad and via controlled subsidiaries. Additionally, because the notice was addressed to the undertaking, the entity had to notify other entities within the undertaking who, providing they had a a UK territorial connection, were required to respond as if the notice were directed to them specifically. However, the imposition of an obligation on an entity operating solely in a foreign jurisdiction to provide an administrative authority in another jurisdiction (under threat of sanction) with documents and information was plainly extraterritorial and very likely to undermine comity between nations. Construing section 26 in accordance with the presumption against extraterritorial effect, the Competition and Markets Authority could not compel a constituent element of an undertaking, that was not subject to the territorial jurisdiction of the United Kingdom, to respond to a section 26 notice. Accordingly, no notice, whether sent directly or indirectly to the German parent companies, was effective (paras 71–77, 73, 78–80).

Sarah Abram KC and Andrew McIntyre (instructed by Norton Rose Fulbright LLP) appeared for the company in the appeal.

Brian Kennelly KC and Jason Pobjoy (instructed by Freshfields Bruckhaus Deringer LLP) appeared for the company in the judicial review.

Tristan Jones and Richard Howell (instructed by the Competition and Markets Authority) appeared for the Competition and Markets Authority.

Sarah Addenbrooke, Barrister

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