Competition Markets Authority
Administrative timetable
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Court of Appeal judgment
18 December 2023: the deadline for Apple to seek the Court of Appeals permission to appeal the Courts decision has now lapsed, therefore in accordance with the Courts order dated 30 November 2023, the market investigation will recommence on 24 January 2023. Further updates will follow in due course.
30 November 2023: In a unanimous judgment (available on the National Archives website), the Court of Appeal has determined that the CMAs decision to make a market investigation reference in relation to the market for mobile browsers and cloud gaming was lawful, setting aside the CATs judgment of 31 March 2023.
Consequentially, the Court has ordered that the market investigation will continue to be suspended until permission to appeal (if sought) has been determined and an additional 21 days has lapsed.
Sarah Cardell, Chief Executive of the CMA, said:
This ruling gives the CMA the backing it needs to protect consumers and promote competition in UK. As this judgment clearly states, the previous ruling by the CAT would have had serious consequences for the CMAs ability to investigate potential breaches of the law.
We launched this investigation over a year ago in order to make sure that UK consumers get the best services and apps on their mobile phones, and that UK developers can invest in innovative new apps. We stand ready to reopen it when the legal process is complete.
Further update on the Competition Appeal Tribunal (CAT) judgment and subsequent order
14 August 2023: The CMAs appeal has been listed for a one day hearing on 3 October 2023.
9 June 2023: the Court of Appeal has granted the CMAs request for permission to appeal. The appeal is to be heard on the first available date after 2 October 2023. Until the Courts judgment, the CMAs investigation continues to be stayed.
17 May 2023: the CMA applied to the Court of Appeal for permission to appeal the CATs judgment and the order of 20 April 2023.
21 April 2023: On 20 April 2023, the CAT made an order setting out the consequences for the market investigation and the obligations on the CMA flowing from the CATs judgment. The order can be found on the CATs website.
The order suspends the 18-month period the CMA has to prepare and publish its report on the market investigation, with effect from 31 March 2023 and preserves the current position in the market investigation until the CMAs appeal, if permitted, is determined. The CMA will not progress the market investigation during this time. Market participants are also not be required to take any steps in relation to the market investigation.
On 13 April 2023, the CMA requested permission to appeal from the CAT in relation to the CATs judgment of 31 March 2023 in this matter. The CAT refused permission to appeal on 3 May 2023. The order, including its reasons for doing so, can be found at Reasoned Order (Permission to appeal).
Update on Competition Appeal Tribunal (CAT) judgment
31 March 2023: The CAT has handed down a judgment in relation to Apples application for review under section 179 Enterprise Act 2002 of the CMAs decision to make a market investigation reference into the supply of mobile browsers and browser engines, and the distribution of cloud gaming services through app stores on mobile devices in the UK. The CAT has found in Apples favour.
The full judgment can be found on the CATs website.
A CMA spokesperson said:
We are disappointed with todays judgment. We made this market investigation reference to make sure that UK consumers get a better choice of mobile internet services and that UK developers can invest in innovative new apps. Our concerns, and the reasons why we launched our market investigation, were not challenged by Apple.
Todays judgment has found there are material constraints on the CMAs general ability to refer markets for in-depth investigations. This risks substantially undermining the CMAs ability to efficiently and effectively investigate and intervene in markets where competition is not working well.
Given the importance of todays judgment, we will be considering our options including seeking permission to appeal.
Market investigation reference
Invitation to comment on consumer survey draft questionnaire
15 February 2023: As part of its investigation into mobile browsing and cloud gaming, the Competition and Markets Authority (CMA) has appointed Kantar Public to conduct a quantitative survey of UK consumers who own a smartphone. The below linked Questionnaire notice provides details of the research approach.
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We welcome comments on the draft questionnaire to be used in the proposed survey. Comments are due by 5.00pm GMT 22 February 2023.
Responses to the issues statement
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Issues statement
13 December 2022: The issues statement outlines initial theories on what might be affecting competition and potential remedies. It doesnt set out our findings or conclusions. Parties are invited to provide submissions commenting on the issues and possible remedies. The deadline for submissions on the issues statement is Tuesday 17 January 2023.
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