Competition Commission v BAA Ltd & Anor
2010
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MAURICE KAY
Areas of Law
- Administrative Law
- Civil Procedure
- Evidence Law
2010
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case concerns an appeal by the Competition Commission, supported by Ryanair, from a CAT decision that quashed the Commission’s market investigation findings about BAA’s common ownership of airports due to apparent bias by Panel member Professor Peter Moizer. The OFT had referred UK airport services under section 131 of the Enterprise Act 2002, and the Commission’s March 2009 Report required divestiture of Gatwick, Stansted, and one of Glasgow or Edinburgh. BAA alleged apparent bias because Moizer was a long‑standing external adviser to the Greater Manchester Pension Fund, whose sponsoring local authorities own Manchester Airport Group, an active participant and potential bidder. The Court of Appeal held there was no apparent bias before 2 December 2008; accepted apparent bias thereafter but found no contamination of the Panel’s final decision; rejected the ‘no operative effect’ argument; found no waiver by BAA; and allowed the appeals, restoring the Commission’s decision.
Judgment
Lord Justice Maurice Kay :
On 29 March 2007 the Office of Fair Trading (OFT) made a reference to the Competition Commission (the Commission) for a market investigation into the supply of airport services in the United Kingdom pursuant to section 131 of the Enterprise Act 2002 (the 2002 Act). The OFT expressed the view that if the Commission were to find that an adverse effect on competition (AEC) existed, there was a reasonable prospect of appropriate remedies being available, including divestiture of some of the airports operated by BAA Ltd (BAA). In April 2007 the Commission appointed a six member panel (the Panel) to carry out the investigation. One of the six members was Professor Peter Moizer. On 19 March 2009, the Commission published its Report. It found that BAA’s common ownership of airports in south-east England and Lowland Scotland gives rise to AECs. It adopted a package of remedies including divestiture by BAA of Gatwick and Stansted airports and also one of Glasgow and Edinburgh airports. BAA appealed to the Competition Appeal Tribunal (CAT) pursuant to section 179 of the 2002 Act. It alleged apparent bias on the part of Professor Moizer.
The allegation of apparent bias was based on the following circumstances. Professor Moizer has acted since 1987 as one of three external advisers to the Greater Manchester Pension Fund (the Fund). The Fund is administered by Tameside MBC. That council’s functions in maintaining the Fund are delegated to the Pension Fund Management Panel (PFMP) which comprises local councillors from the ten local authorities within Greater Manchester. The same ten local authorities own the issued share capital of Manchester Airport Group plc (MAG), which in turn owns and operates Manchester airport as well as other airports in the United Kingdom. MAG played an active role in the Commission’s investigation in the course of which it made both written and oral submissions which related to the future business of BAA. On 17 April 2007 the Commission made a disclosure (the 2007 Disclosure) in relation to the interests of panel members. It referred to Professor Moizer’s advisory role with the Fund. On 20 August 2008 the Commission published its provisional findings and a notice of possible remedies, including the divestiture of Gatwick and Stansted. On 17 September 2008 BAA announced its intention to sell Gatwick. On 26 November 2008 the Fund and MAG met to discuss the Fund’s possible involvement with MAG in a purchase o