Notices of Application - Appeal Tribunals

The Competition Commission Appeal Tribunals

NOTICE OF APPLICATION UNDER SECTION 46 OF THE COMPETITION ACT 1998

Case No 1009/1/1/02

Pursuant to Rule 13 of the Competition Commission Appeal Tribunal Rules 2000 (“the Rules”), the Registrar of the Appeal Tribunals gives notice of the receipt of an application under section 46 of the Competition Act 1998 (“the Act”) by Aberdeen Journals Limited (“the Applicant”), of PO Box 43, Lang Stracht, Mastrick, Aberdeen, A815 6DF, in respect of a decision of the Director General of Fair Trading (“the Director”) No CA98/14/2002, dated 16th September 2002 (“the Contested Decision”), relating to Infringements of section 18 of the Act.

The Contested Decision was expressed as a restatement and confirmation of an earlier decision by the Director (No CA98/5/2001) (“the First Decision”), which was appealed by the Applicant and set aside by the Tribunal (Case 1005/1/1/01; judgment of 19th March 2002, [2002] CAT 4, [2002] CompAR 167). The First Decision and the Contested Decision were taken following the Director’s investigation commenced in January 2000 into a complaint submitted by Aberdeen Independent Ltd, publisher of the Aberdeen & District Independent, that the A berdeen Herald & Post, owned by the Applicant, was pricing its advertising space at significantly below “market value”. Following the setting aside of the First Decision, the Tribunal remitted the issue of market definition to the Director for further consideration. Further investigation was undertaken by the Director prior to issuing the Contested Decision. The Contested Decision found that the Applicant has abused a dominant position in the market for the supply of advertising space in local newspapers (paid-for and free) in the Aberdeen area by its predatory pricing of advertising space in the Aberdeen Herald & Post . By the Contested Decision, the Director required the Applicant to pay a penalty of £1,328,040.

The Applicant seeks the following relief:

1.	a decision setting aside the Contested Decision in whole or in part;
2.	a decision setting aside or reducing the penalty ;
3.	a declaration that the Applicant’s conduct in the period 1st to 29th March 2000 did not infringe section 18 of the Act:
4.	an order that the Director pay the Applicant’s costs relating to the appeal against the First Decision and also of the present application; and
5.	such further and other relief as the Tribunal may consider appropriate.

 The principal grounds on which the application relies are that:

1.	the Director has erred in fact and law in concluding that the Applicant held a dominant position in the market for the supply of advertising space in both paid-for and free local newspapers in Aberdeen or the circulation area of the Herald & Post . The Director has also erred in fact and law in concluding in the alternative that the Applicant held a dominant position in the market for the supply of advertising space in paid-for local newspapers;
2.	even if the Applicant did hold a dominant position in a relevant market, the Director has erred in fact and law in concluding that the Applicant has abused that position by engaging in predatory conduct;
3.	even if the Applicant did infringe section 18 of the Act, it did not commit the infringement intentionally or negligently and therefore the Director did not have the power to require it to pay a penalty;
4.	even if the Director did have the power to impose the penalty on the Applicant, he has not followed the terms of his Guidance as to the Appropriate Amount of a Penalty. The penalty imposed is excessive in all the circumstances of the case. In addition the Director has not reduced the penalty sufficiently to take mitigating factors into account.

Any person who considers that he has a sufficient interest in the Contested Decision may make a request for permission to intervene in the proceedings, in accordance with Rule 14 of the Rules.

A request for permission to intervene should be sent to the Registrar, The Competition Commission Appeal Tribunals, New Court, 48 Carey Street, London WC2A 2JT, so that it is received within one month of the publication of this notice.

Further details concerning the procedures of the Competition Commission Appeal Tribunals can be found on its website at www.competition-commission.org.uk. Alternatively the Tribunal Registry can be contacted by post at the above address or by telephone (020 7271 0395) or fax (020 7271 0281). Please quote the case number mentioned above in all communications.

Charles Dhanowa, Registrar

22nd November 2002