Apple's challenge of CMA's mobile browsers / cloud gaming investigation bears fruit

Back in January I summarised the procedural challenge Apple had made against the CMA's decision to carry out a market investigation into mobile browsers and cloud gaming services (here). 

The CAT has now upheld Apple's appeal, confirming that the CMA had not met the time limits prescribed under the Enterprise Act 2002. 

However, the CAT was obviously concerned about the implications of this decision, stating that where the CMA clearly considered that a market investigation was warranted, it would be "most undesirable" for the CMA to be constrained without good reason from making such a reference. 

The CAT noted that the CMA could make a 'linked' reference using a fresh market study notice, but suggested that this would be liable to challenge on other public law grounds if it related to very similar subject matter as the original study. The CAT therefore took it upon itself to offer the CMA a different "provisional only" and somewhat speculative "way out of this situation". 

In essence, the CAT postulates that the CMA's original decision not to make a market investigation reference in December 2021 is "questionable on public law grounds". The CAT suggests that the CMA sought to reserve a right to revisit its decision not to make a reference pending the timing of its expected acquisition of new legislative powers to investigate digital markets (although that wording does not actually appear in the CMA decision itself). The CAT further suggests that the Enterprise Act does not empower the CMA to make such a reservation. 

However, the CAT notes that CMA's original decision was within the Enterprise Act 2002 time limits. It refers to a ruling in the Live Nation and Ticketmaster merger where a report was quashed and remitted back to the Competition Commission for reconsideration. The implication is thus that the CMA should challenge its own original decision in order to secure a remittal enabling it to reconsider whether to make a market investigation reference in that original (not time-barred) decision. 

This is a somewhat extraordinary suggestion, to say the least. 

I am sure that many others will have plenty of things about it to say. For now, I would just point out that in Live Nation/Ticketmaster, the third party challenging the merger clearance agreed with the proposed course of action. Here, as the CAT notes, it will be "for Apple to consider how far it resists the course that the CMA determines upon". 

The CMA is also actively considering seeking permission to appeal the judgment. All in all, it appears we are still some way off a final resolution, and there may well be further twists in this tale to come.