Judicial Review v Full Merits Scrutiny in the DMCCb: Peter Freeman, Catherine Batchelor & Tom Fish

Peter Freeman – a former Chairman of the UK Competition Appeal Tribunal, current board member of the Competition Service, which supports the Tribunal. Former Chairman of the UK Competition Commission.
Catherine Batchelor – Director, Digital Markets Unit, Competition and Markets Authority
Tom Fish – Head of Public Policy and Research at Gener8 (former member of staff of the Digital Markets Unit, Competition and Markets Authority)

The level of judicial scrutiny which the new UK pro-competition regime for digital markets constitutes one of the central and most contested issues in the current stage of the legislative process on the Digital Markets, Competition and Consumers Bill in UK Parliament. Many stakeholders have offered various political and practical arguments in support of different approaches to this foundational, existential matter of the new regime.

For the advocates of the Judicial Review standard the key question is basically how effective the CMA will be in tailoring competition in digital markets and how much discretion will be left for them to engage "with a posture" in a meaningful regulatory dialogue with designated undertakings (implying that under the Full Merits standard most of their bargaining power would simply get evaporated).

The supporters of the Full Merits test submit that such a categorically new regime granting so much discretion to the CMA/DMU must be subject to more comprehensive judicial control.

To understand the mechanics and the rationale of both approaches (as well as many positions in-between), we have invited three leading figures in the discussion, representing three types of stakeholders in this matter (but of course speaking in their own private capacity) – Peter Freeman from the Competition Appeal Tribunal – the judicial body which will be hearing most of the cases, Catherine Batchelor – a member of the CMA Digital Markets Unit which will be enforcing the new regime on a daily basis, and Tom Fish – representing a start-up, and thereby the whole cluster of Small- and Medium Tech, the companies in which favour this regime is being introduced at first place.

We have obviously discussed during this hour many other problematic and novel aspects of the new regime – including (but not limited to) the mechanism of mandatory efficiency defence, the differences between the procedures in Chapter 3 (conduct requirements) and Chapter 4 (pro-competition interventions), new type of relationship with Government, Parliament and third parties, the role of private enforcement, comparison with the DMA, aspects of the new regime which are likely to be more commonly litigated, advantages and pitfalls of the Bill.

These and many other problems have been scrutinised in-detail during our quite rivalrous (but very amicable) dialogue.

All three participants have concluded with offering really amazing recommendations to students.

P.S from OA: As a moderator my task was limited to asking and facilitating – not arguing. But I have a very categorical view on the Bill (and I am truly honoured that my position was heard by the Parliament). Most of my concerns about and endorsements of the Bill are systematised in a paper in which the DMCCb is being compared with its sister EU regime of the Digital Markets Act – https://papers.ssrn.com/sol3/papers.c...

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The Digital Markets Research Hub is an independent academic initiative aiming at scrutinising the functioning of competition/regulation in digital markets. We host one-to-one interviews with leading policymakers, regulators and practitioners. We also organise online mini-workshops inviting high-profile experts and academics in various fields of digital competition law & policy to discuss the most vibrant issues of the ongoing regulatory reforms in digital markets.

While having our clear normative stand on the matters discussed within the hub, we value different views and invite relevant stakeholders and thinkers representing the whole spectrum of reasonable positions on how to regulate competition in digital markets.

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