Insights CAT judgment upholds Compare The Market’s appeal against a CMA “most favoured nation” infringement decision


The Competition Appeal Tribunal (CAT) has handed down its judgment in the appeal against the decision of the CMA fining Compare The Market for breach of Article 101 of the TFEU and the Chapter I prohibition of the Competition Act 1998. The CAT has decided to set aside the CMA’s ruling and so annulled a fine of £17.9m.

When setting aside the CMA’s fine, the CAT found that the CMA had made material errors on market definition, including failing to properly consider the importance of other channels for consumers when buying home insurance.

The CAT also noted that the CMA had been correct to consider all 32 “wide most favoured nation (“MFN”) clauses” collectively when assessing anti-competitive effects (rather than individually assessing each one).

However, the CMA was flawed insofar it had failed to establish that the wide MFN clauses concerns had had the anti-competitive effects articulated in their decision. The CMA considered that a large extent of the CMA’s analysis on the alleged anti-competitive effects of wide MFNs was based on “the level of theory or bare assumption, with no significant reference to quantitative evidence” – making it very difficult for the CAT and Compare The Market to test the evidence for the effects alleged. Accordingly, the fine was annulled. For further details of the CAT’s decision, click here.