Companies under investigation for competition infringement are not owed a distinct duty of equal treatment, the Supreme Court has held in a case about alleged price-fixing in the tobacco market.
In 2010, the Office of Fair Trading (OFT), which has since been replaced by the Competition and Markets Authority (CMA), made a finding of infringement by several companies.
Six of the companies appealed to the Competition Appeal Tribunal. Gallaher Group and Somerfield, and some others, did not appeal, instead entering into early resolution agreements (ERs) and receiving substantial penalty reductions in return for cooperation.
However, one of the other companies who entered into an ER, TM Retail, was assured that, if it did not appeal, it would still get the benefit of any successful appeal made by the other companies.
The other companies won their appeal at the Competition Appeal Tribunal. TM Retail then, citing the assurance it was given in 2008, asked the OFT to withdraw the decision against it.
The OFT agreed, repaying the penalty with interest.
Gallaher and Somerfield argued that they should receive the same treatment as TM Retail. The OFT refused. The companies contended that the OFT has a public law duty to treat all those under investigation equally.
The Supreme Court ruled unanimously this week in favour of the OFT (which had by then been replaced by the CMA). Giving the lead judgment in Gallaher Group v CMA [2018] UKSC 25, Lord Carnwath said: ‘The domestic law of this country does not recognise equal treatment as a distinct principle of administrative law.
‘Consistency… is a “generally desirable” objective, but not an absolute rule.’
