Royal Mail appeal against Ofcom rejected by the Competition Appeal Tribunal

Royal Mail appeal against Ofcom rejected by the Competition Appeal Tribunal

The Competition Appeal Tribunal (CAT) has published its Judgment today in relation to Royal Mail’s appeal.

Royal Mail appealed against Ofcom's Decision that it engaged in abusive price discrimination against Whistl, a rival end to end delivery entrant, contrary to Chapter 2 CA98/Article 102 TFEU.

Royal Mail had six grounds of appeal:

  1. That the proposed prices were never applied.
  2. That the proposed prices applied to non-equivalent products.
  3. That Ofcom failed to have proper regard to the impact of the conduct on an ‘as efficient competitor’.
  4. That there was an objective justification, as Royal Mail needed to preserve the viability of the universal service.
  5. That there was a procedural error.
  6. That the size of the fine (£50 million) was disproportionate.

The CAT rejected each of Royal Mail’s grounds of appeal.

David Parker, Director in Frontier’s competition practice, provided expert evidence for Whistl, who intervened in the case in support of Ofcom. David provided written and oral evidence (both in a "hot tub" and cross-examination), in particular around the nature and relevance of the "as efficient competitor" test. The Tribunal identified this as being the central issue in the case.

Click here to read the full judgment.

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