Apple files a procedural appeal against the CMA’s investigation into mobile browsers and cloud gaming. How “shall” the CAT respond? 

On Friday, January 18th, the Competition Appeal Tribunal published Apple’s application for a review of the CMA’s decision to make a Market Investigation Reference (MIR) into mobile browsers and cloud gaming. 

Apple’s case rests entirely on procedural grounds. They argue that under sections 131A and 131B of the Enterprise Act, the CMA must issue a final report within 12 months of the publication of a market notice study. The CMA’s decision to make a MIR was issued on November 22nd 2022, over a year after it had released its initial market study notice (on June 15th, 2021). 

As Florian Mueller discusses in his post on the matter (linked here), the CAT’s decision will rest on the interpretation of “shall”. Indeed, the Enterprise Act does not state that the CMA “must” fulfill the above outlined obligations, only that it “shall” make the reference within a year. 

There are precedents to support both interpretations of “shall” – that it signals an expression of intent or, conversely, that it mandates a statutory deadline – and the CAT could decide, quite legitimately, in favour of either. 

However, at MOW, we do not entirely share Florian’s view “that this appeal could go either way”. Technically, yes. But considering the CAT has scope to side with the CMA, it would be surprising if it did not. 

The CAT has shown considerable deference to the CMA’s judgments of late.

In this case, the CAT would likely seek to avoid tearing up a much-needed investigation into a market where there is both clear concentration and evident harm for the sake of a contentious procedural point. 

We note that the CAT has listed that the hearing date for the application will be March 10th, 2023. In the meantime, we would imagine it will be business as usual at the CMA. Until the CAT upholds Apple’s complaint, there is no reason they would be unable to continue their market investigation as planned.