Volkswagen AG & BMW v Competition and Markets Authority

The application before the High Court involved a claim for judicial review by Volkswagen AG against the decision of the CMA dated 29 April 2022 to issue Volkswagen AG with a s.26 notice. The application before the Tribunal involved an appeal by BMW AG challenging a decision of the CMA dated 6 December 2022 to impose a penalty on BMW AG for failing to comply with a disclosure notice under s.26 of the Competition Act 1998.

In light of the common issues, the two applications were case-managed and heard together, with the claim for judicial review allocated to the President of the Tribunal to determine in his capacity as a Justice of the High Court.

Both the judicial review and the statutory appeal succeeded. Specifically, it was held that the CMA’s decision to issue a s.26 notice, and the decision to impose a penalty in respect of foreign-domiciled companies with no presence in the United Kingdom in relation to the production of specified documents and information held by those companies outside the jurisdiction was ultra vires s.26 of the 1998 Act.

Brian Kennelly KC and Jason Pobjoy acted for Volkswagen AG.

Tristan Jones acted for the CMA.

The full judgment can be read here.