CAT Sets Aside CMA Infringement Decision On Wide MFNs

On 8 August 2022 the Competition Appeal Tribunal (CAT) set aside the CMA's infringement decision in its Compare The Market investigation relating to the use of wide MFN clauses. The CAT concluded that the CMA's definition of the relevant market in the decision was materially wrong and that the CMA had failed to show, to the requisite standard, that the wide MFNs had any appreciable anti-competitive effects. The CAT was highly critical of the lack of quantitative and econometric evidence in the CMA's decision which was one of the main reasons for overturning the decision.

The Compare The Market decision was the CMA's first Competition Act 1998 infringement decision involving wide MFNs. The CMA 's 2015 market investigation into private motor insurance identified that wide MFNs cause competitive harm, and resulted in an order prohibiting their use in the market for private motor insurance. This approach was confirmed in the CMA's market study on digital comparison