General Division of the High Court · Decided 30 June 2026

Small firms that swap price-rise plans can still breach competition law

Competition and Consumer Commission of Singapore v CNL Logistic Solutions Pte Ltd and another

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[2026] SGHC 139Case no. Tribunal Appeal No 9 of 2025

The decision, in one line

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Small firms that swap price-rise plans can still breach competition law

Summary by laws.sgParagraphs [279], [280]

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Laws this judgment relies on

Competition Act 2004

Grounds of decision

Official text from eLitigation

Philip Jeyaretnam J:
Introduction
[1] The “by object” restriction in competition law is commonly understood as a restriction on conduct considered so inherently harmful to competition that the competition authority need not consider the effects of the conduct before concluding that the conduct was anti-competitive. In this matter, warehousers operating in the same complex discussed price increases implemented by the largest operator in that complex. It is undisputed that the warehousers who are parties to this case have a relatively small market share and low market power.
[2] Whether this discussion between the warehousers can be, and should be, deemed a “by object” restriction of competition depends on when and how the “by object” restriction applies, and more specifically, the extent to which a competition authority must examine the economic context within which the alleged infringement occurred, before it can conclude that the conduct was, by its very nature, anti-competitive.
[3] This is the first occasion on which the High Court has been called upon to consider an appeal under the Competition Act 2004 (“Competition Act”). The appeal arises from a finding by the Competition Appeal Board (“CAB”) that the Competition and Consumer Commission of Singapore (“CCS”) had not proved that an exchange of pricing information between a group of warehouse operators amounted to a restriction of competition “by object” under s 34 of the Competition Act. The CCS now challenges that finding as wrong in law. For the reasons which I set out below, I agree with the CCS, and allow the appeal.
Roles and jurisdiction
[4] Before turning to the facts and the issues, I set out the structure and respective roles of the three bodies whose decisions are engaged in this appeal: the CCS, the CAB, and this court. Understanding the roles and powers of these bodies and their respective limits within the broader landscape of competition law in Singapore is helpful to appreciate how the questions arising on appeal must be resolved.
[5] The CCS is a statutory body established under the Competition Act to administer and enforce three key prohibitions in competition law: “Agreements, etc., preventing, restricting or distorting competition” under s 34 of the Competition Act; “Abuse of dominant position” under s 47 of the Competition Act; and “Mergers” which have resulted or may be expected to result in a substantially lessening of competition under s 54 of the Competition Act. In particular and relevant to this appeal, the prohibition under s 34 is further understood to fall into two broad categories: where the agreement, decision by associations or concerted practice has as its object the prevention, restriction or distortion of competition within Singapore (ie, “by object” limb), and where the agreement, decision by associations or concerted practice has as its effect the same (ie, “by effect” limb).
[6] Vested with both investigative and adjudicative powers, the CCS may conduct investigations into suspected infringements under s 62 of the Competition Act. Upon completing such investigations, it may, under s 68 of the Competition Act, issue decisions finding infringements, direct infringing parties to cease the offending conduct, and impose financial penalties of up to 10% of the infringing undertaking’s turnover in Singapore for each year of infringement, for a maximum of three years, amongst other powers.
[7] The CCS thus combines the roles of fact-finder, prosecutor, and first-instance decision-maker. As a counterbalance, the Competition Act provides for an independent appellate body in the CAB. The CAB is a specialist tribunal established under Part 4 of the Competition Act and constituted by persons appointed “on the basis of their ability and experience in industry, commerce or administration, or their professional qualifications or their suitability otherwise for appointment”: s 72(1) of the Competition Act. It has the power to conduct a full merits review. Under s 73(8) of the Competition Act, it may confirm or set aside the decision which is the subject of appeal. It also has the powers to find facts as it is endowed with the power to “give such direction, or take such other step, as the [CCS] could itself have given or taken” (s 73(8)(c) of the Competition Act), and “make any other decision which the [CCS] could itself have made” (s 73(8)(d) of the Competition Act). The CAB may therefore re-examine the evidence to reach its own factual conclusions and form its own view as to the economic analysis.
[8] Under s 74 of the Competition Act, a further appeal lies from the CAB to the General Division of the High Court, and thereafter to the Court of Appeal under s 74(4). This appeal is only on points of law or the quantum of a financial penalty: s 74(1) of the Competition Act. This court’s jurisdiction accordingly does not extend to re-examining the CAB’s findings of fact or its economic assessments, but is confined to ensuring that CAB acted lawfully within the correct legal boundaries. Where the CAB has done so, its conclusions are not open to challenge in this court merely because this court might have weighed the evidence differently.
Background facts
[9] I set out the background facts to this appeal, as found by the CCS and to the extent accepted by the CAB. As I noted in the preceding paragraph, this court is limited to deciding on appeals on points of law, and has no power to review the CAB’s findings of fact.
[10] The first respondent, CNL Logistics Solutions Pte Ltd (“CNL”) and second respondent, Gilmon Transportation & Warehousing Pte Ltd (“Gilmon”), provide warehousing services at Keppel Distripark, a multi-tenanted cargo distribution complex in Singapore. As warehouse operators, they provide storage and cargo handling services, including receiving shipments, temporary storage, unpacking of consolidated cargo, and arranging onward delivery to consignees.
[11] Keppel Distripark is a free trade zone. Duties and Goods and Services Tax are not levied on cargo stored within it – they fall due only when goods are brought out for local sale or consumption, or consumed within the zone itself. At the material time, approximately 26 warehouse operators operated at Keppel Distripark.
[12] On 15 June 2017 at approximately 4.41pm, Hup Soon Cheong Pte Ltd (“HSC”), the largest warehouse operator within Keppel Distripark, notified a customer that it would be imposing a new levy on import cargo stored within the free trade zone (“FTZ Surcharge”). It posted the same notice at its warehouse office shortly thereafter. HSC was the first warehouse operator to announce the FTZ Surcharge. HSC’s sister company, Capital Logistics Services Pte Ltd (“CLS”), which was also one of the larger operators at Keppel Distripark, followed suit the same day.
[13] Other warehouse operators followed in short order. Among them were the respondents and two additional operators, Penanshin (PSA KD) Pte Ltd (“Penanshin”) and Mac-Nels (KD) Terminal Pte Ltd (“Mac-Nels”) (collectively, the “Undertakings”). The Undertakings held approximately 16.09% of the warehouse operator market at Keppel Distripark, with the respondents accounting for approximately 5.75% of that market.
Decision below
The CCS’s infringement decision
[14] On 17 November 2022, the CCS issued its Infringement Decision (“ID”) against the Undertakings. The CCS’s case proceeded on two alternative bases.
[15] The CCS’s primary case was that a meeting took place at around 11.30am on 15 June 2017 between representatives of the respondents and Penanshin (“15 June 2017 Meeting”). The CCS found on a balance of probabilities that at that meeting, CNL’s Director and General Manager, Vasu s/o Achutan (“Mr Vasu”) and Gilmon’s Managing Director, Teo Siang Siak (“Mr Teo”), met with Penanshin’s Container Freight Station Manager, Mohamed Yasrin bin Mohamed Yasil (“Mr Yasrin”). The CCS found that Mr Vasu and Mr Teo told Mr Yasrin that certain warehouse operators, including the respondents, intended to adopt the FTZ Surcharge, and invited Penanshin to do likewise. They also asked Mr Yasrin to ask if Mac-Nels would join in on adopting the FTZ Surcharge.
[16] Alternatively, the CCS found that even if the 15 June 2017 Meeting did not take place, there had been an exchange of commercially sensitive pricing information between the Undertakings prior to their implementation of the FTZ Surcharge. The CCS identified the following communications as establishing this (“Communications”):
(a) At 7.47pm on 15 June 2017, Thomas Chua, Gilmon’s Assistant General Manager (“Mr Chua”), told Mr Yasrin that Gilmon intended to impose the FTZ Surcharge. He then forwarded to Mr Yasrin, via WhatsApp, the FTZ Surcharge notices that HSC and CLS had issued.
(b) Mr Vasu called Mr Yasrin and asked him whether Penanshin was going to impose the FTZ Surcharge.
(c) At 9.57pm on 15 June 2017, Mr Yasrin sent a WhatsApp message to Mac-Nels’ director, Matthew Er Yeong Yang, (“Mr Er”), in the following terms:
The following morning, at 7.28am on 16 June 2017, Mr Er replied: “Yes I will follow.”
(d) Between 7.36am and 7.42am on 16 June 2017, Mr Yasrin forwarded to Mr Er, via WhatsApp, copies of the FTZ Surcharge notices issued by HSC and CLS.
(e) At 7.40am and 7.42am on 16 June 2017, Mr Yasrin sent separate but identical WhatsApp messages to Mr Vasu and Mr Chua:
(f) Mr Vasu replied “Thx bro”. Mr Chua replied “Thanks”.
[17] On the basis of the 15 June 2017 Meeting and the Communications, the CCS found that the Undertakings had engaged in “Price Fixing Conduct”: they had contacted competitors directly to disclose their future pricing intentions, solicited confirmation that those competitors would follow suit, and received that confirmation. The CCS found on a balance of probabilities that this amounted to an agreement and/or concerted practice to coordinate the imposition of the FTZ Surcharge, with the object of preventing, restricting or distorting competition in the market for warehousing services at Keppel Distripark, in breach of s 34 of the Competition Act.
[18] The CCS investigated 11 warehouse operators at Keppel Distripark in connection with the FTZ Surcharge. Of these, only the Undertakings were found to have engaged in infringing conduct. The CCS stated in the ID that it did not find evidence of the other operators’ participation in the “Price Fixing Conduct”.
The CAB’s decision
[19] The respondents appealed to the CAB against the Infringement Decision. The CAB allowed the appeal in full. Its decision rested on three findings, the first two of which the CCS does not challenge on this appeal.
[20] First, the CAB found that the CCS had not proven on a balance of probabilities that the 15 June 2017 Meeting took place. The direct evidence amounted to nothing more than a “he said, she said” situation. The CCS’s case rested primarily on Penanshin’s Leniency Statement and Mr Yasrin’s subsequent interviews. The CAB found that these were undermined by three considerations:
(a) Mr Yasrin’s earliest interview on 19 November 2019 – given before Penanshin submitted its leniency application – made no mention of any meeting, and identified Mr Chua rather than Mr Teo as the Gilmon representative who had communicated with him.
(b) The discrepancies in Mr Yasrin’s account were never put to him for clarification in later interviews, and his testimony was never tested by cross-examination.
(c) Penanshin had an economic incentive, as a leniency applicant, to shift responsibility for initiating the conduct onto the respondents, since an initiator of a cartel is ineligible for full immunity.
[21] The CAB further noted that Mr Yasrin’s own admission that he had “called the other parties … to get their notices” was more consistent with him having been the initiator of contact than with him having been approached at a meeting by the respondents. The supporting evidence relied upon by the CCS – Mr Yasrin’s WhatsApp messages to Mr Er, Mr Vasu, and Mr Chua, set out above at [16] – did not resolve this ambiguity in the CCS’s favour. The word “follow” in Mr Yasrin’s message could mean following the general body of Keppel Distripark operators who had announced the surcharge after HSC’s public announcement or following a compact proposed by the respondents at the 15 June 2017 Meeting.
[22] Second, the CAB found that on CCS’s alternative case, the Communications also did not constitute an agreement. The CCS’s alternative case was also predicated on the 15 June 2017 Meeting having taken place. Having found that the meeting was not proven, and there being no other evidence of any offer from the respondents capable of founding a consensus, the case for an “agreement” fell away entirely.
[23] Third, the CAB held that while the Communications constituted a concerted practice, the CCS had not proven that this concerted practice amounts to a “by object” infringement of s 34 of the Competition Act. This is the finding CCS now challenges on this appeal.
[24] On this third point, the CAB first rejected the CCS’s characterisation of the Communications as “Price Fixing Conduct”. The CAB found that the CCS’s definition of price fixing – encompassing any conduct that “facilitate[s] the coordination of future pricing conduct between competitors” – was too broad. Price fixing requires an agreement between competitors to fix prices, which, in the CAB’s view, would be distinct from information sharing. To conflate them would be to import, without justification, the presumption of harm that attaches to price fixing into every case involving the disclosure of price-related information between competitors.
[25] The CAB then determined the legal test for “by object” infringements. Conduct falls within the “by object” limb, only where it is “regarded, by their very nature, as being harmful to the proper functioning of normal competition” or where “such coordination reveals in itself a sufficient degree of harm to competition”. This test must be applied restrictively, otherwise, the competition authority would, in effect, be exempted from the obligation to prove the actual effects on the market. For information-sharing conduct specifically, the CAB held that the surrounding market context – including market structure, the number and size of market participants, the nature of the information exchanged, and the economic conditions prevailing in the relevant market – must be adequately examined before a conclusion can be reached that the conduct is so obviously injurious to competition as to warrant treatment as a “by object” infringement.
[26] The CAB found that the CCS had failed to conduct that examination. The CCS had dismissed the respondents’ small market shares as irrelevant on the basis that price fixing always has an appreciable adverse effect on competition regardless of market share. But, in the CAB’s view, that reasoning was available only once the conduct had been properly characterised as price fixing – which it was not. The respondents’ conduct was an exchange of pricing information, hence the CCS was required to engage with the market context. The CAB noted that such observations about market structure as appeared in the ID were scattered across sections dealing with other issues and did not constitute a coherent analysis capable of grounding a finding of a “by object” restriction of competition. Against the backdrop of a market with approximately 26 operators dominated by HSC and CLS, in which the respondents together held only 5.75%, the CCS had offered no adequate explanation of why the Communications were, by their nature, so likely to harm competition as to dispense with any examination of effects. The CAB accordingly allowed the appeal and set aside the ID.
Parties’ cases on appeal
[27] The CCS now appeals to this court. I briefly outline the parties’ arguments here. Where necessary, I will examine them in greater detail in the course of my analysis below.
The CCS’s case
[28] The CCS’s position is that the Communications constituted a concerted practice with the object of restricting competition, in violation of s 34 of the Competition Act. The CCS argues that the CAB erred in setting the legal threshold for “by object” infringements too high, and that the CAB imposed a requirement for a more searching examination of the economic context than the law demands. In doing so, the CAB had, in the CCS’s view, effectively imported an effects-based analysis into what should have been a straightforward “by object” inquiry.
[29] In brief, the CCS makes four submissions:
(a) The CAB was wrong to treat the “by object” category as confined to conduct that is “well-established, egregious and obviously harmful” – the test asks only whether the conduct reveals a sufficient degree of harm to competition, and the lack of precedent for finding the exchange of pricing information as a “by object” infringement should not be a bar.
(b) The CAB drew an impermissible distinction between information sharing and price fixing that has no basis in law – the overarching legal test applies uniformly to all forms of coordination.
(c) The examination of economic context is no more than a “basic reality check”, and where the anti-competitive object is easy to perceive, this examination should be limited to “what is strictly necessary to confirm or cast doubt on the harmful nature and anti-competitive object revealed by the analysis of the content and objectives of the practice in question”.
(d) On the facts, the CCS conducted precisely that examination in the ID – identifying the price-sensitivity of the market, the risk of customer switching, and the way the Communications reduced each Undertaking’s uncertainty – and the economic context disclosed nothing that precluded a “by object” finding.
The respondents’ case
[30] The respondents’ case is that the CAB identified the correct legal test, applied it correctly, and reached a conclusion well within the range available to a properly instructed specialist tribunal. The respondents argue that the CCS has not identified any error of law. In the respondents’ view, the CCS is disagreeing with the CAB’s factual and evaluative conclusions – conclusions this court has no jurisdiction to re-examine.
[31] The respondents make three submissions:
(a) There is no genuine legal controversy – both parties and the CAB accept that the same seminal case applies, and a disagreement about how an agreed test was applied to the facts is not a point of law.
(b) The CCS has misconstrued the CAB’s decision in order to manufacture apparent points of law – the CAB did not treat the “by object” category as closed, did not apply a different legal test to information sharing, and did not require a full effects analysis. What it required was an adequate examination of economic context, which the agreed-upon precedent mandates, and which the CCS failed to conduct.
(c) On the facts, the Communications were a one-off exchange of information between small operators holding a combined market share of 5.75%, following a public price announcement by the two largest players in the market – conduct that cannot, without more, be characterised as “so obviously injurious to competition” as to dispense with any examination of effects.
Issues on appeal
[32] Before identifying the substantive issues on appeal, I address the respondents’ argument that this appeal by the CCS does not raise a question of law such that this court’s jurisdiction under s 74 of the Competition Act is not properly invoked. I am satisfied that it does.
[33] In Ng Eng Ghee v Mamata Kapildev Dave [2009] 3 SLR(R) 109 (“Ng Eng Ghee”) at [102], the Court of Appeal held that “[t]he question of what a statutory term means is clearly an issue of law and a misinterpretation of the term would constitute an ex facie error of law open to appeal.” The CCS’s challenge centres on the interpretation of the statutory terms “by object” and “concerted practice” – specifically, whether the CAB applied the correct legal test when assessing whether the Communications constituted a concerted practice which had as its object the prevention, restriction or distortion of competition. This is a question of law.
[34] This question is not resolved, as the respondents contend, merely because both parties cite the same authority. Parties may agree on the applicable precedents while disagreeing fundamentally on what those precedents require. To that end, I note that both parties invoked Ng Eng Ghee in support of competing interpretations of what constitutes a question of law. It is unnecessary to resolve that broader debate here, as the present case clearly raises questions of law even on the narrowest interpretation of what constitutes a question of law.
[35] The appellant put several questions before me as part of their appeal. I identify the following issues for determination:
(a) The applicable law on concerted practices, and whether the CAB was correct in finding that the Communications constituted a concerted practice;
(b) The applicable law on “by object” restrictions of competition under s 34 of the Competition Act, and the role of economic context in determining “by object” restrictions of competition; and
(c) Whether the CAB was correct in finding that the conduct did not amount to a “by object” restriction, including whether the CAB was correct in holding that the CCS had paid insufficient regard to the relevant economic context.
The section 34 prohibition
[36] Section 34(1) of the Competition Act provides:
[37] Section 34(2)(a) provides that for the purposes of s 34(1) of the Competition Act, agreements, decisions or concerted practices may, in particular, have the object or effect of preventing, restricting or distorting competition if they “directly or indirectly fix purchase or selling prices or any other trading conditions”.
[38] Additionally, in interpreting the prohibition set out in s 34(1) of the Competition Act, United Kingdom (“UK”) and European Union (“EU”) law is persuasive. It was held in Pang’s Motor Trading v Competition Commission of Singapore [2014] SGCAB 1 at [33] that this is because s 34 of the Competition Act was modelled on the relevant UK and EU instruments (which I set out below). This is confirmed by the second reading of the Competition Bill: Singapore Parliamentary Debates, Official Report (19 October 2004) vol 78; at col 863–864 (Dr Vivian Balakrishnan, Senior Minister of State for Trade and Industry).
[39] The parties (and the CAB) all purport to follow the approach in the EU and UK. I therefore find it useful to consider the relevant foreign instruments, and survey the voluminous case law on the subject. This is consistent with, as I have stated above, the value of EU and UK jurisprudence on this subject. Where relevant, I shall also consider the Opinions of the Advocate Generals in the EU cases, as these often inform and guide the courts’ reasoning. Not all the cases considered in this judgment were cited by the parties in their submissions, whether before me or before the CAB. I undertake this survey to provide the full context behind the principles to be expounded in this judgment.
[40] Thus, insofar as the statutory language does not deviate from their EU and UK origins, I draw upon such foreign authorities in the analysis that follows.
Concerted practices
[41] As I have stated above at [20]–[21], the CAB found as fact that there was no agreement between the undertakings, and no appeal lies against this finding of fact.
[42] Whether there was a concerted practice (as the conduct in this case was characterised by both the CCS and CAB) is an anterior question to whether parties’ conduct constitutes a “by object” restriction of competition. The appellant’s submission is that the CAB correctly held that the Communications constituted a concerted practice. The respondents submit that the CAB did not find that there was a concerted practice. Rather, the respondents’ position is that the CAB “merely assumed the hypothesis” that there was a concerted practice, and that since the CAB found that there was no “by object” restriction, it did not make a finding on whether there was a concerted practice.
[43] The respondents’ submission is inaccurate. The CAB considered the issue of whether there was a “by object” restriction after finding that the conduct constituted a concerted practice. I do not see any indication, explicit or implicit, that the entire second stage of the CAB’s analysis was purely hypothetical. For completeness, I reproduce [79] of the Decision below:
[44] Nonetheless, insofar as the respondents are challenging a finding that there was a concerted practice, I consider the applicable law on concerted practices, and whether the CAB properly directed itself in this regard.
[45] The CAB defined concerted practices as situations, other than agreements, where undertakings “knowingly substitute the risks of competition with some form of practical cooperation”. The CAB set out the test for finding a concerted practice as follows:
[46] The CAB went on to reject the CCS’s submission that a concerted practice could be found simply because competitors had communicated with each other. Such communications, whether direct, indirect, unilateral, or bilateral, were necessary but not sufficient. In the CAB’s view, there must have been subsequent market conduct causally connected to the undertakings’ prior communications with each other.
[47] I shall consider the applicable case law below. I find that the CAB correctly directed itself on the law, and as such, I see no reason to disturb its finding that there was a concerted practice in the present matter.
The law on concerted practices
[48] The definition of a concerted practice as it is understood in EU jurisprudence is set out in Coöperatieve Vereniging “Suiker Unie” UA v European Commission, Joined Cases C-40/73 to C-48/73, C-50/73, C-54/73 to C-56/73, C-111/73, C-113/73 and C-114/73, ECLI:EU:C:1975:174 (“Suiker Unie”) at [26] (cited in the Decision at [30]):
[50] I turn next to A. Ahlström Osakeyhtiö v European Commission, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, ECLI:EU:C:1993:120 (“A. Ahlström Osakeyhtiö”). The case involved undertakings and trade associations involved in the manufacture of wood pulp making quarterly pricing announcements in the trade press. The Court of Justice found that even though the pricing announcements were made very close in time to each other, this was not due to a concerted practice. Instead, the structure of the market resulted in a high degree of transparency. For example, buyers were always in contact with multiple sellers, and would inform sellers of the prices announced by other sellers. There were also relatively few buyers, and the buyers would exchange information about the quotes they received. Several sellers also bought materials from each other, and consequently would have been aware of each other’s pricing: A. Ahlström Osakeyhtiö at [81]–[88].
[51] Furthermore, announcements did not reduce uncertainty as to competitors’ future pricing or attitude, as at the time of the announcements, each undertaking would not know of what the future pricing would be: A. Ahlström Osakeyhtiö at [64].
[52] In relation to parallelism in the prices announced in A. Ahlström Osakeyhtiö, it was held that the existence of a concerted practice was not the only plausible reason for such conduct. It is worth setting out [126] of A. Ahlström Osakeyhtiö in full:
[53] I take from this paragraph the point that parallelism is not itself evidence of a concerted practice. If there is a plausible alternative explanation, then there should not automatically be a finding of a concerted practice.
[54] A. Ahlström Osakeyhtiö may be compared with John Deere Ltd v European Commission, Case C-7/95 P, ECLI:EU:C:1998:256 (“John Deere”). In the latter case, tractor manufacturers and importers in the UK cooperated on an information system that related to sales data. The Court of Justice found that the exchange of information constituted a concerted practice, as it allowed undertakings to know about their competitors’ market positions and strategies, thereby reducing uncertainty as to each other’s conduct. In coming to this conclusion, the Court of Justice had regard to the nature of the information exchanged, frequency of the exchange, and to whom it was disclosed: John Deere at [88]–[89]. A. Ahlström Osakeyhtiö was distinguished in that case on the basis that the price announcements in A. Ahlström Osakeyhtiö were to consumers, whereas the information exchange in John Deere was only among sellers.
[55] Anic Partecipazioni v European Commission, Case C-49/92 P, EU:C:1999:356 (“Anic”) was referenced in the Decision, as well as by the appellant. The first part of Anic relevant to the present appeal is the pronouncement that the reference to “undertakings, decisions… or concerted practices” is intended to cover all forms of collusion. This is to ensure that all forms of collusion are prohibited: Anic at [108]. Furthermore, even if the agreements, decisions, and concerted practices are meant to catch different forms of collusion, the same course of conduct that constitutes a “by object” restriction can have elements of both an agreement and concerted practice: Anic at [112]–[114]. There would be no strict need to categorise conduct as either agreements or concerted practices. The competition authority would be entitled to characterise certain forms of conduct as “principally” agreements and others concerted practices: Anic at [132].
[56] The other relevant pronouncement in Anic is the presumption of causal connection. This was not the only presumption discussed in Anic. Anic also set out a presumption that where an undertaking attends a price-fixing meeting, it is presumed that it participated in the cartel, unless the undertaking can adduce contrary evidence. In light of the CAB’s finding that no such meeting took place in the present matter, that presumption is irrelevant. However, I refer to the relevant presumption as the “presumption of causal connection” for clarity.
[57] The presumption of causal connection is to the effect that where undertakings take part in a prohibited concerted practice and remain on the market, it is presumed that they had taken account of the information. This is a rebuttable presumption, where the undertakings investigated may provide proof that they did not in fact take into account the information exchanged: Anic at [121]. The CAB referred directly to this presumption, and the relevant parts of Anic.
[58] In Tate & Lyle plc, British Sugar plc and Napier Brown & Co. Ltd v European Commission, Joined Cases T-202/98, T-204/98 and T-207/98, ECLI:EU:T:2001:185 (“Tate & Lyle”, upheld on appeal in ECLI:EU:C:2004:255), the Court of First Instance dealt with a dominant undertaking in the British sugar market ending a price war, and informing its competitors of its future pricing intentions: Tate & Lyle at [3]–[11]. The Court of First Instance held that a concerted practice can be found even if information or intentions are shared unilaterally and without reciprocity. The mere receipt of information could constitute a concerted practice: Tate & Lyle at [54]–[58].
[59] It was also held in Tate & Lyle that the fact that future prices had already been communicated to customers did not necessarily mean there could not be a concerted practice. In that case, the dominant undertaking had informed customers on an individual basis of its prices. That did not mean the prices were readily-accessible and objective market data (which, if shared, would likely not constitute a concerted practice). The meetings took place before the prices were announced, and led to a “climate of mutual certainty as to their future pricing policies”: Tate & Lyle at [60]. The Court of First Instance also rejected one undertaking’s argument that there was no anti-competitive intention, based on its position as both a customer as well as a competitor of the other undertakings. The rejection was because the undertaking in question did not make its lack of anti-competitive intention clear to the other undertakings, and because it still received confidential information of its competitor’s pricing intentions which “each participant could not fail to take into account… in order to determine the market policy which it intended to pursue”: Tate & Lyle at [62]–[67].
[60] I consider next JJB Sports plc and Allsports Limited v Office of Fair Trading [2004] CAT 17 (“JJB Sports”). This was a case cited in the ID, but not by the appellant in its submissions. In JJB Sports, the Competition Appeal Tribunal cited Suiker Unie and Tate & Lyle, among other cases, as setting out the relevant law on concerted practices. There are three points worth noting from JJB Sports:
(a) First, the Competition Appeal Tribunal accepted that it is possible for multiple undertakings to be sanctioned for taking part in a concerted practice, even if parties only ever take part in bilateral communications. In such circumstances, it would not be necessary to decide there was a single concerted practice, or multiple concerted practices. I take it that such findings are necessarily fact-sensitive. The example given in JJB Sports at [643] was as follows:
(b) Second, the Competition Appeal Tribunal cited Anic for the proposition that a competition authority need not characterise an infringement as either an agreement or a concerted practice. All that is needed is for the conduct in question to constitute one or the other: JJB Sports at [644].
(c) Third, the Competition Appeal Tribunal stated that where an undertaking attended a private meeting where pricing intentions were discussed, there would be a concerted practice among the attendees even if information was only shared unilaterally by one undertaking: JJB Sports at [873].
[61] Anic was cited in T-Mobile Netherlands BV v Raad van bestuur van de Nederlandse Mededingingsautoriteit, Case C-8/08, ECLI:EU:C:2009:343 (“T-Mobile”) for the proposition that the listing of agreements, decisions, and concerted practices in the Treaty of the Functioning of the European Union (“TFEU”) was intended to catch all forms of collusion. These categories of conduct were distinguishable not in kind, but “only by their intensity and the forms in which they manifest themselves”: T-Mobile at [23]. This meant that the criteria for finding a “by object” restriction is the same regardless of how the conduct is characterised. Whether conduct amounted to a concerted practice would be determined in light of the idea that undertakings must determine their strategies independently: T-Mobile at [32].
[62] The above does not mean that undertakings must build walls round themselves. There is a distinction between the right of undertakings to adapt themselves to their competitors’ existing or anticipated conduct, which is permitted, and direct and indirect conduct which may influence conduct or disclose intentions, which is prohibited: T-Mobile at [33]. Furthermore, where there is such prohibited contact, the presumption of causal connection would apply even if there was only a single meeting or interaction.
[63] I consider next Balmoral Tanks Ltd v Competition and Markets Authority [2017] CAT 23 (“Balmoral Tanks”) which also extensively discusses the legal principles on “by object” restrictions. It was cited by the appellant in support of the proposition that a single instance of contact can amount to a concerted practice. That is not controversial. However, Balmoral Tanks contains three other relevant points on concerted practices:
(a) First, in determining whether a concerted practice constituted a “by object” restriction, there is no need to consider the effects of the concerted practice. However, there is a need to show that information exchanged had an effect on parties. In other words, it must be shown (in the context of the presumption of causal connection) that the undertakings concerned conducted themselves on the basis of the information exchanged: Balmoral Tanks at [119].
(b) Second, the basis for sanctioning and prohibiting concerted practices is that competitors should not, as a general rule, know how each other will behave. This is why conduct that causes a reduction in uncertainty will be deemed a concerted practice so long as there is some reciprocity. A similar point was made in Lexon (UK) Limited v Competition and Markets Authority [2021] CAT 5 (“Lexon”) at [162], that even if the information exchanged is publicly available, there can still be a concerted practice if it provides “valuable reassurance” or the like. An example would be an exchange of information accompanied by opinions that would not normally be made available to the public.
(c) Third, that the strictness of this area of the law (in particular the presumption of causal connection) is because “it is hard to think of any legitimate reason why competitors should sit together and discuss prices at all”: Balmoral Tanks at [41]. This is consistent with the reference in A. Ahlström Osakeyhtiö to whether there is a plausible alternative explanation for the conduct.
[64] It is also worth noting that the Competition Appeal Tribunal in Balmoral Tanks considered whether the market was one where a single exchange of information could constitute a “by object” restriction. It was held that the meeting in question gave an indication that a new competitor was not intending to push prices down, and because all the other suppliers were used to fixing prices and exchanging information. This meant that a one-off exchange of information could constitute a “by object” restriction in that particular market: Balmoral Tanks at [101]–[106]. While Balmoral Tanks indicates that a single instance of contact can result in a concerted practice and a “by object” restriction, it did not hold that a single instance of contact will necessarily amount to such.
[65] I finally consider Phones 4U Ltd (in administration) v EE Ltd (Competition and Markets Authority, intervening) [2025] EWCA Civ 869 (“Phones 4U”). I find the case very helpful in setting out the applicable principles on concerted practices, and the presumption of causal connection from Anic.
[66] The English Court of Appeal accepted that the provision of sensitive business information, such as an exchange of future price increases, could constitute a concerted practice and a “by object” restriction. However, the concept of concerted practice implies some subsequent market conduct, as well as reciprocity. Referring to Eturas UAB v Lietuvos Respublikos konkurencijos taryba, Case C-74/14, ECLI:EU:C:2016:42 (“Eturas”) and the Opinion of Advocate General Szpunar in Eturas, ECLI:EU:C:2015:493, the English Court of Appeal also stated that what constitutes reciprocity or tacit approval would naturally depend on the circumstances. A lack of opposition in some cases of illicit communication will constitute reciprocity, because the context may be such that silence will be appreciated as approval. In particular, the unilateral disclosure (and concomitant receipt) of information can be a concerted practice if one party requests or accepts it: Phones 4U at [112], citing Cimenteries CBR v European Commission, Joined Cases T-25/95 etc, ECLI:EU:T:2000:77.
[67] The above would not necessarily or wholly apply to cases of unanticipated “one way” communication of confidential information: Phones 4U at [145]. However, it was noted that the recipient in such cases would face evidential difficulties in showing that their silence was not tacit approval (since they would have likely benefitted from reduced uncertainty), due to the presumption of causal connection. In relation to the presumption of causal connection, the English Court of Appeal clarified that the presumption is not rebuttable only by public distancing (referring to Eturas).
[68] Phones 4U concerned the decision of several mobile network operators (“MNOs”) in the UK to stop supplying consumer connections to mobile networks through indirect retailers (in this case, Phones 4U Limited (“Phones 4U”)). Instead, they would focus on selling to consumers directly: Phones 4U at [6]–[12]. The context of the cessation of supply was that the MNOs had a “strategic desire to increase direct distribution and to reduce their reliance on indirect channels”: Phones 4U at [21]. Another indirect retailer had also undergone a merger, making it more attractive to enter exclusive arrangements with them instead of with Phones 4U. It was also found that MNOs had a relative lack of insight into each other’s plans: Phones 4U at [22].
[69] It was alleged that the MNOs had decided to stop supplying to Phones 4U due to a concerted practice. The alleged concerted practice took the form of, among other things, the chief executive officers of O2 and EE meeting for lunch wherein the former informed the latter of his company’s intention to reduce supply to indirect retailers, and certain discussions between senior executives of various MNOs: Phones 4U at [13] and [42]–[51].
[70] In the light of the propositions above, the English Court of Appeal upheld the English High Court’s decision that there was no concerted practice in that case. In relation to the lunch meeting, the information given was (a) provisional and (b) was limited and vague. This was sufficient evidence that the information was not taken into consideration, thus rebutting the presumption of causal connection: Phones 4U at [176]. Another alleged instance of a concerted practice was found not to be so, as the decision to stop supplying to Phones 4U was made several months later, “after significant developments in the UK market and extensive and detailed negotiation between Vodafone UK and [Phones 4U]”: Phones 4U at [269].
[72] This does not mean the CAB was wrong to conclude in the Decision at [72] onwards that a one-off communication cannot itself constitute a concerted practice. Read in context, the thrust of the Decision is not that a single instance of communication can never be the basis of a concerted practice. The CAB directly referenced T-Mobile for the proposition that a single meeting can be the basis of a concerted practice. The point of that section of the Decision is that the wrong is not in the communication itself. That is correct, and supported by the cases I have considered above, particularly Phones 4U. Contact or communication simpliciter will not necessarily mean there has been a concerted practice. Rather, the information exchanged, and the manner in which this is done, must be of the sort that would reduce uncertainty between competitors, and must include some element of reciprocity.
[73] Furthermore, a reduction of uncertainty is a necessary but not sufficient requirement for finding a concerted practice. The existence of a plausible alternative explanation (that the conduct is not anti-competitive) will militate against a finding that there was a concerted practice. This may explain why the price announcements in A. Ahlström Osakeyhtiö did not constitute a concerted practice. Even if there was reduced uncertainty, the announcements also gave transparency to customers, which meant it could not be described as anti-competitive.
[74] However, the sin is not in the fact of communication or receipt thereof. Concerted practices indicate a need for some reciprocity. Though it does not arise for my decision in this appeal, I find it unlikely that, for example, a business that receives information from a competitor without asking for it would necessarily or automatically be deemed as having participated in a concerted practice simply because it remained on the market. As seen from Phones 4U, there must still be some reciprocity or tacit approval (though such reciprocity or tacit approval may be presumed through silence).
Agreement or concerted practice
[75] In the course of the Decision, the CAB appeared to disagree with the ID on two other points:
(a) First, the CAB was of the view that the ID did not “clearly articulate the definitional boundaries” between agreements and concerted practices.
(b) Second, the CAB made no explicit finding on whether there could be a concerted practice to fix pricing (as opposed to an agreement to fix prices).
[76] The appellant appears to disagree in both respects, submitting that “[a] bright line distinction between ‘agreements’ and ‘concerted practices’ cannot be drawn”, and that it is possible to find a concerted practice to fix prices. Though they are not directly relevant to the disposal of the present appeal, I consider them for completeness, and because they are worth clarifying for future investigations by the CCS.
[77] In relation to the first point, I agree with the appellant that there is no strict need to characterise conduct as either an agreement or a concerted practice. This has been the approach in cases such as Anic, JJB Sports, and T-Mobile. Agreements and concerted practices are different by degree, rather than by type. Once conduct falls into any one of these categories, the legal tests for whether there is a “by object” or “by effect” restriction of competition are the same, applying equal to all three categories of conduct.
[78] A competition authority may therefore label conduct however it wishes, so long as it can prove that the requirements for the relevant category have been met. In turn, the undertakings investigated are entitled to adduce evidence or submissions to the effect that the competition authority has not proved that the conduct in question featured an agreement, decision, or concerted practice, as the case may be. This is a question of ensuring that the undertaking knows the case it has to answer, and can provide evidence to challenge the authority’s case.
Concerted practice to price fix
[79] In relation to the second point, the appellant correctly acknowledges that the Decision did not contain an explicit rejection of the possibility of a concerted practice to fix prices. However, the appellant challenges the Decision insofar as it contains an implied rejection of such a concerted practice. As I understand it, the respondents do not challenge this finding. As I have received submissions on this point, and the appellant has asked for doctrinal clarity, I discuss it briefly.
[80] In short, it is very possible for a concerted practice to have an anti-competitive object if it will “directly or indirectly fix purchase or selling prices or any other trading conditions”: T-Mobile at [37].
[81] I do not think that the CAB held that a concerted practice to fix prices could never exist. All that the Decision stated was that the definition of “price fixing” that the CCS proposed to the CAB was too wide.
[82] As the respondents correctly submit, the CAB acknowledged that sharing price-related information can be as serious as price fixing (in the colloquial understanding of the term). For its part, the appellant has stated that price fixing has no immutable definition, and that the analysis is fact-specific, considering the harm in the individual case.
[83] It seems to me, therefore, that all involved have approached the matter through the lens of analysing the seriousness of the conduct, and the harm caused. I do not think that the particular label (ie, whether the end of the concerted practice is to fix prices, to exchange information, or something else) is determinative. Categorisation can be useful, such as for determining in subsequent cases whether there is sufficient experience such that conduct can be deemed a “by object” restriction, and whether a particular case is analogous to previous ones. However, when analysing the particular case, the competition authority must ensure that it is not adopting the formalistic approach warned-against in the cases discussed in the next section of this judgment. It is not so simple as categorising conduct (whether an agreement, concerted practice, or the like) as price fixing and going on to determine the appropriate sanction. There is still a need to consider if the conduct in question, however characterised, is sufficiently serious (as I explain in the next section).
[84] Thus, a concerted practice may be constituted by conduct that is not price fixing in the classic sense but is related or analogous to it. I do not think the respondents are challenging this, nor that the CAB had shut the door to this.
Application to the facts
[85] As I have stated above at [43], the CAB held that there was a concerted practice, though it did not state this clearly. I see no reason to depart from the CAB’s holding on this point.
[86] The CAB held that the Communications were the basis for the concerted practice in the present appeal. This was characterised in the ID, and discussed in the Decision, as a single or one-off communication. The appellant’s and respondents’ submissions also considered the possibility of single instances of contact constituting a concerted practice (and in turn “by object” restrictions).
[87] There is no real controversy that a single instance of contact or communication may amount to a concerted practice. Balmoral Tanks and T-Mobile both involved information exchanges on a single occasion. Both of these resulted in a finding that there was a concerted practice, constituting a “by object” restriction of competition.
[88] Given that a single instance of information exchange can amount to a concerted practice, the analysis then focuses on whether the information exchanged is of the sort that would reduce uncertainty among undertakings, or result in practical cooperation. The uncertainty can go either to the fact of price movements, or to the details as to its implementation.
[89] The Decision correctly identified that the information exchanged in the present appeal resulted in practical cooperation between the undertakings investigated. The Communications (as defined in the ID) related to various undertakings’ intention to raise prices. As stated in the ID, and acknowledged in the Decision, the respondents then used this to convince customers to agree to the implementation of the FTZ surcharge.
[90] Contrary to the appellant’s submission, the CAB was correct to say that such conduct would constitute a concerted practice only to the extent that it can be shown that undertakings had taken into account the information exchanged. As I have stated above, the fact of communication is not in itself prohibited. In an information exchange, it is the reciprocity or subsequent use of the information that gives rise to the concerted practice. That is not to say that a competition authority must prove this by evidence. The CAB made no such pronouncement. The CAB correctly identified the presumption of causal connection, and that the presumption is an alternative method of proof. That is why the CAB then went on to consider whether the conduct that is the subject of the present appeal constitutes a “by object” restriction.
[91] As I have stated above, where undertakings participate in a concerted practice, and remain active on the market thereafter, they are presumed to have taken into account the information exchanged. The presumption of causal connection also presumes that there is a causal link between the exchange of information, and undertakings’ subsequent conduct. This is a rebuttable presumption. If undertakings can show that the information exchanged played no part in their future conduct, then they cannot be sanctioned.
[92] In the present case, the respondents took part in a concerted practice. They remained active on the market thereafter. It is therefore presumed that the respondents took the information exchanged into account in their future actions and strategy. The CAB in any event found that the respondents had subsequently used the information exchanged to convince customers to agree to the implementation of the FTZ Surcharge. The CAB therefore considered the possibility of proving by presumption a causal connection between the exchange of information and undertakings’ subsequent conduct. The CAB also found that such a connection was established through evidence.
[93] The CAB thus directed itself correctly on the law on concerted practices. It consequently held that there was a concerted practice between the respondents. Insofar as the appellant or respondents are of the view that there was no such holding, or that it was incorrect, I disagree, and decline to disturb the CAB’s decision and findings on the existence of a concerted practice.
“By object” restrictions
[94] I now discuss the law on “by object” restrictions of competition. The parties agree, as the CAB held, that the applicable test for identifying a “by object” restriction is set out in Groupement des cartes bancaires (CB) v European Commission, Case C-67/13 P, ECLI:EU:C:2014:2204 (“Cartes Bancaires”). I reproduce the relevant paragraphs in full:
[95] The extract above gives some indication of the appropriate steps to take to identify a “by object” restriction of competition. However, it does not define what a “by object” restriction fundamentally is, beyond suggesting that they cover “certain types of coordination between undertakings [which] reveal a sufficient degree of harm to competition”: Cartes Bancaires at [49]. At best, a “by object” restriction is framed negatively in Cartes Bancaires, that it refers to conduct that is sanctioned for being anti-competitive without need to determine its precise economic or anti-competitive effects.
[96] This definitional gap is the source of parties’ disagreement on appeal. The CCS’s case is that the test asks only whether the conduct reveals, by its very nature, a sufficient degree of harm to competition. Once that question is answered affirmatively, no examination of effects is required. The respondents’ case, and the CAB’s holding, is that the examination of economic context required by Cartes Bancaires must be sufficiently searching to demonstrate that the specific conduct, in the specific market, was so obviously harmful to competition that the competition authority could dispense with any effects analysis, and that the CCS failed to conduct that examination.
[97] As alluded to above at [29(a)], the CAB stated that only the “most well-established, egregious and obviously harmful” types of conduct may be classified as “by object” restrictions. This goes to conduct that is deemed “by their very nature, as being harmful to the proper functioning of normal competition”, or cases where the conduct itself reveals a “sufficient degree of harm” (quoting Cartes Bancaires at [50] and [57]).
[98] The appellant has characterised a “by object” restriction of competition as referring to the “objective purpose” or “objective aims” of the conduct. In other words, this is conduct “where the facts point objectively to the purpose of the conduct as being anti-competitive/restrictive of competition”.
[99] The respondents have not directly addressed the nature of a “by object” restriction of competition. However, the respondents have appeared to accept that it goes to conduct that reveals a “sufficient degree of harm to competition”. The respondents also appear to submit (or to accept the CAB’s determination, insofar as this reflects the CAB’s determination) that the difference between analysing the consequence or effects of conduct on the market in “by object” and “by effect” restrictions is one of degree.
[100] With this issue in mind, I shall first consider the nature of a “by object” restriction. I shall then consider the role of the economic context as raised in Cartes Bancaires at [53].
Nature of a “by object” restriction
[101] The first issue in this section is the proper scope of the prohibition on “by object” restrictions of competition.
[102] The relevant provision in the EU is Article 101(1) of the TFEU. It states:
[103] The scope of Article 101(1) is limited by its reference to “trade between Member States” and to “the internal market”. That is obviously not applicable to s 34 of the Competition Act. Where EU case law is considered, I shall limit myself to identifying the nature of the “object” in a “by object” restriction of competition.
[104] The relevant provision in the UK is s 2(1) of the Competition Act 1998 (“UK Competition Act”). It states:
[105] I do not propose to rehearse the entire corpus of law on “by object” restrictions of competition. However, understanding the nature of “by object” restrictions and the scope of the prohibition requires close attention to the precise facts of each case, the principles that the relevant court or tribunal declared were applicable, and the way in which these were applied to the facts.
EU law
(1) Before Cartes Bancaires
[106] A convenient place to begin is Société Technique Minière v Maschinenbau Ulm GmbH, Case C-56/65, ECLI:EU:C:1966:38 (“STM”). STM stands for the proposition that findings of a “by object” restriction and a “by effect” restriction were alternative, and not cumulative, requirements for sanction by the European Commission. This was based on the word “or” in the present equivalent of Article 101(1) of the TFEU: STM at p 249. Factors relevant to this analysis were the nature and quantity of the products covered, the position and importance of the parties in the relevant market, whether there was an isolated agreement or series of agreements, and the severity of the agreement (in the sense of whether there were other opportunities for competitors to access the relevant market): STM at p 250. The case concerned the grant of an exclusive right to sell certain public works equipment from a particular supplier within the French market. In that context, it was held that an exclusive right of sale did not necessarily amount to a “by object” restriction, but the terms of the agreement in question might give rise to a “by object” restriction of competition: STM at p 251.
[107] In Compagnie Royale Asturienne des Mines SA v European Commission, Joined Cases 29/83 and 30/83, ECLI:EU:C:1984:130 (“Royal Asturienne”), the Court of Justice held that finding a “by object” restriction of competition involved “examining the aims pursued by the agreement as such, in the light of the economic context in which the agreement is to be applied” (at [26]). Royal Asturienne involved a prohibition on the import and resale of zinc products into Germany (where prices were much higher than other jurisdictions), and a contractual requirement compelling resale outside Europe. It was held that the abovementioned restrictions were designed to prevent intranational re-export of goods, to maintain the system of dual or differentiated pricing. In particular, I note that the language used by the European court was that the “conclusion [could not] be avoided” that the conduct was anti-competitive in its design: Royal Asturienne at [28].
[108] Gøttrup-Klim e.a. Grovvareforeninger v Dansk Landbrugs Grovvareselskab AmbA, Case C-250/92, ECLI:EU:C:1994:413 (“Gøttrup-Klim”) concerned a Danish cooperative that aimed to provide members with farm supplies at lower prices. The cooperative expelled certain members who joined competing cooperatives: Gøttrup-Klim at [3]–[15]. It was held that the cooperative’s ban on dual membership was not prohibited under (what is now) Article 101(1) of the TFEU. This was because undertakings acting together through the cooperative served as a counterweight to the contractual powers of the suppliers, and made for more effective competition. In this context, dual membership would undermine the cooperative’s ability to act as a counterweight. It was thus held that the ban on dual membership was not necessarily a restriction of competition, and might even have pro-competitive effects: Gøttrup-Klim [28]–[34].
[109] I should note at this juncture that despite STM drawing a clear distinction between “by object” and “by effect” restrictions on competition, the European cases did not always indicate whether the conduct in question was sanctioned or investigated as a “by object” or a “by effect” restriction. In fact, the analysis in Gøttrup-Klim was ostensibly on the “object or effect” of the ban (at [29]), and STM does not appear to have been considered by the European court in that case. This may differ from the later cases considered in this judgment. All that can be said at this juncture is that Gøttrup-Klim appears to be a case where conduct was not sanctioned where it was not clearly anti-competitive in nature or purpose. Nonetheless, cases such as Gøttrup-Klim remain useful in determining the type of conduct that could be sanctioned, and the analysis that the European Commission was required to undertake before sanctions could be imposed.
[110] Two such cases are A. Ahlström Osakeyhtiö, and John Deere, which I have discussed in the preceding section. Both cases involved undertakings and trade associations investigated by the European Commission for information exchanges. In the former case, this took the form of quarterly pricing announcements in the trade press. In the latter case, this took the form of an information system relating to sales data. These two cases indicate that it is not enough to identify conduct as falling within certain pre-existing categories of sanctionable conduct (such as information exchanges). Rather, the competition authority must then establish that the conduct as implemented is of the sort that would restrict competition or reduce uncertainty between competitors.
[111] The information exchange in A. Ahlström Osakeyhtiö was not considered “in itself” an infringement of (what is now) Article 101(1) of the TFEU (at [65]). I take this to mean that the Court of Justice also found that the conduct in question was not a “by object” restriction. This was on the basis that the pricing announcements did not reduce uncertainty as to competitor’s future conduct (ie, competitors would not have any insight into future pricing decisions): A. Ahlström Osakeyhtiö at [60]–[65]. In contrast, the information exchange in John Deere was an infringement of EU competition law. This was because the information exchange gave sellers information on their competitors’ sales data, and the information was not shared with non-participating sellers or customers: John Deere at [88]–[91].
[112] The next case to be considered is Competition Authority v Beef Industry Development Society Ltd and Barry Brothers (Carrigmore) Meats Ltd, Case C-209/07, ECLI:EU:C:2008:643 (“Beef Industry”). The judgment in Beef Industry indicates that the “obviousness” of the alleged anti-competitive object plays some role in analysing whether conduct constitutes a “by object” restriction.
[113] That case involved an overcapacity in the Irish beef industry. As a result, the 10 largest undertakings formed an association for the purpose of reducing the capacity for beef processing. The agreements involved, among other mechanisms, compensating undertakings to leave the industry: Beef Industry at [3]–[8]. In examining the agreement, the Court of Justice held that the object was to “change, appreciably, the structure of the market through a mechanism intended to encourage the withdrawal of competitors”: Beef Industry at [31]. Furthermore, agreements to put certain processing plants out of use for several years were “obviously intended” to prevent the entry of new competitors in the market: Beef Industry at [38].
[114] A more nuanced approach was raised in the Opinion of Advocate General Trstenjak in Beef Industry, ECLI:EU:C:2008:467, (“Beef Industry Opinion”). The Beef Industry Opinion was cited favourably at several points in Beef Industry, and has been cited in several of the English decisions surveyed in this judgment. In brief, the Advocate General was of the view that if an agreement constituted a “by object” restriction of competition, it did not matter whether there were anti-competitive effects: Beef Industry Opinion at [38]. Although an anti-competitive object could be found in cases where a restriction of competition is a necessary consequence of an agreement or conduct, this did not mean parties’ intentions were irrelevant. Rather, rational economic operators are taken to have intended the ordinary consequences of their acts: Beef Industry Opinion at [44]–[46]. The Advocate General also rejected the notion that “by object” restrictions sanction only the most obvious cases of anti-competitive behaviour: Beef Industry Opinion at [97].
[115] The appellant relied, as did the CAB, on T-Mobile. That case concerned a meeting between the five mobile telecommunications network operators in the Netherlands. There was a finding of a concerted practice in relation to, among other things, the reduction of standard dealer remuneration for certain subscriptions: T-Mobile at [9]–[12].
[116] Once more, the Court of Justice took the view that a “by object” restriction may be found without regard for the actual or potential anti-competitive effects of the conduct investigated. All that was needed for the conduct to have the “potential to have a negative impact on competition”, taking into account, amongst other things, the nature of the products, and number of undertakings involved: T-Mobile at [31]–[33]. The Court of Justice considered that even if market conditions meant that dealer remuneration would nonetheless have been reduced without the concerted practice in question, there could still have been competition in relation to the timing, extent, and details of such modifications: T-Mobile at [40]–[41] and [68]–[69]. T-Mobile, and the Opinion of Advocate General Kokott in T-Mobile, ECLI:EU:C:2009:110 (“T-Mobile Opinion”), viewed a “by object” restriction as going to the “potential” or “capacity” to restrict competition. I return to this point later in this judgment, but it suffices to state at this juncture that such an approach appears somewhat out of step with the cases that came before and after.
[117] A further case cited by the appellant is Expedia Inc v Autorité de la concurrence, Case C-226/11, ECLI:EU:C:2012:795 (“Expedia”). The case concerned, in material part, a challenge over the binding effect (if any) of a now-repealed Commission Notice. That Commission Notice stated that if an agreement was between undertakings with a market share of less than 10% in aggregate, the European Commission would not sanction it as a “by object” restriction of competition: Expedia at [4] and [13].
[118] Expedia dealt primarily with whether agreements between small undertakings could result in an appreciable effect on competition. As the appellant has correctly submitted, the concept of “appreciability” is not found in the Competition Act. It is not contained in the European or UK statutory instruments either. The concept of “appreciability” is derived from case law, and is part of the CCS’s enforcement prerogative. What is important to note at this stage is that the Opinion of Advocate General Kokott in Expedia, ECLI:EU:C:2012:544 (“Expedia Opinion”) stated at [50] that market share was irrelevant in finding a “by object” restriction. However, the judgment itself stated that conduct would not be prohibited if it had an “insignificant effect on the market”: Expedia at [16].
(2) Cartes Bancaires and beyond
[119] With that, Cartes Bancaires falls to be considered. As it sets out the agreed test for identifying a “by object” restriction of competition, it is important not just for how it guides the cases that followed, but how it treated the cases that came before (even implicitly). Cartes Bancaires concerned an association of French banks that aimed to increase the interoperability of bank cards issued by their members. The association implemented a fee system whereby a levy was placed on inactive members. The European Commission deemed this a “by object” restriction of competition: Cartes Bancaires at [3]–[5].
[120] The Opinion of Advocate General Wahl in Cartes Bancaires, ECLI:EU:C:2014:1958 (“Cartes Bancaires Opinion”) should be considered, before the judgment itself. Advocate General Wahl laid out several key principles at [37]–[62], derived from the pre-existing caselaw:
(a) First, that “by object” and “by effect” analyses are alternate ways to sanction and prohibit conduct;

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Small firms that swap price-rise plans can still breach competition law

Laws this judgment relies on

Grounds of decision

Introduction

Roles and jurisdiction

Background facts

Decision below

The CCS’s infringement decision

The following morning, at 7.28am on 16 June 2017, Mr Er replied: “Yes I will follow.”

The CAB’s decision

Parties’ cases on appeal

The CCS’s case

The respondents’ case

Issues on appeal

The section 34 prohibition

Concerted practices

The law on concerted practices

Agreement or concerted practice

Concerted practice to price fix

Application to the facts

Nature of a “by object” restriction

EU law

(1) Before Cartes Bancaires

(2) Cartes Bancaires and beyond