On 21 June 2023, ROCC joined a coalition of businesses, charitable foundations, trade associations and consumer advocacy organisations to urge the British Prime Minister Rishi Sunak to maintain the Judicial Review standard for appeals that is currently drafted in the Digital Markets, Competition and Consumers (DMCC) Bill.
The DMCC Bill has the power to impose strict rules on the behaviour of big tech firms with “Strategic Market Status”, like Amazon. The objective is to level the playing field so that the big tech firms’ market power can no longer distort competition.
Big tech firms are pushing for a move to a “merits” review system that would allow them to challenge the substance of regulatory decisions in court, and where they could use the weight of their resources to delay decisions for years and reverse these decisions to their benefit. Such a review system would undermine the purpose of the DMCC Bill and amount to a watering down of a potentially vital tool in the protection of e-commerce businesses and consumers against abusive behaviour.
In a letter to the Prime Minister, ROCC and others argued that the Judicial Review standard should be maintained as the most appropriate for the DMCC regime. First, Judicial Review would deliver prompt outcomes so that all sides can get on with running their businesses instead of fighting in court. Second, Judicial Review allows for a thorough review of the procedure behind decisions. It allows the courts to check that the regulator is not overstepping, while placing the appropriate level of trust in the UK’s Competition and Markets Authority (CMA) as an internationally respected regulator. Third, it is already the standard mechanism for similar regulatory regimes in the UK, including the CMA’s existing merger control and market investigation powers. Finally, it would allow the DMCC regime to remain as effective as it was designed to be in overcoming the weaknesses in the current regulation of Big Tech.
ROCC team member, Tom Smith, has also written a legal paper on the issue to help inform the debate.