In J Sainsbury plc and Asda Group Limited v Competition and Markets Authority [2019] CAT 1, 18 January 2019 the Competition Appeal Tribunal (CAT) granted an application made jointly by Sainsbury's and Asda (the "Applicants") in respect of two decisions by a regulator, the Competition and Markets Authority ("CMA"), regarding the timetable for an investigation into their proposed merger. The CAT held that the deadlines set by the regulator for the Applicants to respond to Working Papers and for the main party hearing to be held were unreasonable and unfair. Although this was a decision of the CAT in the competition context, the principles are equally applicable to all regulators.
Key Points
- Both the deadline set by the regulator for responses to the Working Papers and the date set for the main party hearing were unfair as the Applicants were expected to prepare for and attend the hearing at the same time as they were subject to the unreasonable burden of trying to respond to the Working Papers.
- To reach this conclusion, it was important to consider the purpose of disclosing papers for comment by the Applicants and the purpose of holding the main hearing, and then to assess whether in the context of the case, the timetable set by the regulator would allow such purposes to be met.
- A number of exceptional factors, including the volume and complexity of the Working Papers, the fact that the parties had consistently expressed concerns about timing issues and the regulator's late disclosure of the Working Papers to the Applicants meant that the timetable was found to be unreasonable and unfair.
- The difficulty the regulator faced when trying to balance the need to complete the whole investigation within set statutory deadlines against the need to complete each stage of the investigation fairly was recognised. However, it was not accepted that the regulator was unable to accommodate any extensions within the timetable.
- It was not appropriate for the CAT to impose a revised timetable itself – instead it would be for the regulator to do so.
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