In defence of judicial review: the established UK appeal standard is the best approach for a dynamic digital economy

Abstract

The Digital Markets, Competition and Consumers Bill seeks to create a new regulatory framework for firms with ‘strategic market status’ (SMS). The Digital Markets Unit (DMU), which will be part of the Competition and Markets Authority (CMA), will have the power to designate tech firms such as Google and Apple as having SMS for certain activities. It will be able to impose wide-ranging conduct requirements on those firms and will also have the power to make pro-competitive interventions. These are powerful tools. The DMU will be able to make significant changes to the SMS firms’ business models with the objective of opening up their ecosystems and levelling the playing field for challenger firms. This article considers the standard of review that should apply in determining challenges to decisions of the DMU under this regime. In particular, we consider arguments that have been made against the use of the proposed ‘judicial review’ standard and in favour of an ‘on the merits’ appeal. As part of our analysis we consider consistency with analogous CMA regimes, forward looking assessments and the need for speed, expert opinions and consistency across different jurisdictions.