Bayerische Motoren Werke AG (Appellant) v Competition and Markets Authority (Respondent)

Case summary

Case ID

UKSC/2024/0020

Parties

Appellant(s)

Bayerische Motoren Werke AG

Respondent(s)

Competition and Markets Authority

Issue

Does section 26 of the Competition Act 1998 apply extraterritorially? Can a notice under section 26 of the Competition Act 1998 be served on, and bind, an undertaking as a whole, such that any entity which forms a part of the addressee undertaking is required to produce information or documents over which it has no corporate, contractual, or legal control?

Facts

Bayerische Motoren Werke AG and Volkswagen Aktiengesellschaft (the appellants, referred to respectively as BMW AG and VW AG) are the parent companies of their respective corporate groups. They are companies incorporated and domiciled in Germany. Each has a subsidiary company incorporated and operating in the UK: BMW (UK) Ltd and Volkswagen Group United Kingdom Limited (referred to respectively as BMW UK and VW UK). On 15 March 2022, the Competition and Markets Authority (the respondent) informed the appellants that it had launched an investigation into alleged anti-competitive practices by the BMW and VW groups. On 1 April 2022, the CMA sent a notice to BMW UK and BMW AG under section 26 of the Competition Act 1998 requiring BMW UK, BMW AG, and any other legal entities forming part of the same economic undertaking (ie, the wider BMW group) to produce specified documents and information to the CMA. BMW UK responded to this notice but declined to provide any information or documents from BMW AG on the basis that the CMA did not have the authority to ask for such information or documents. As a result, on 4 November 2022, the CMA fined BMW AG under section 40A of the Competition Act 1998. BMW AG appealed this fine to the Competition Appeals Tribunal. On 29 April 2022, the CMA sent a similar notice to VW UK. It required that VW UK, VW AG, and any other legal entities forming part of the same economic undertaking (ie, the wider VW group) to produce documents and information to the CMA. VW AG challenged this notice by way of judicial review in the High Court of England and Wales. The claims were heard by the CAT, the president of which (Marcus Smith J) sat in his capacity as both president of the CAT and a justice of the High Court. The CAT upheld BMW AG’s and VW AG’s challenges, concluding that the CMA did not have the authority to request such information or documents. The CMA appealed. The Court of Appeal of England and Wales allowed the CMA’s appeal, upholding the validity of the notices issued to BMW AG and VW AG. BMW AG and VW AG now appeal to the Supreme Court of the United Kingdom.

Date of issue

14 February 2024

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