The England and Wales Court of Appeal reinforces that market definition is a tool in competition analysis and substance must prevail over form (Talktalk Telecom / Office of Communications & Anor)

TalkTalk v Ofcom – the Court of Appeal stresses that market definition is a tool not an end* The Court of Appeal, in TalkTalk v Ofcom [2013] EWCA Civ 1318, recently gave an important reminder to all competition practitioners that market definitions are a tool rather than an end: what matters is substance not form. The facts of the case were relatively simple. Ofcom conducted a market review for wholesale broadband access and, in December 2010, issued a decision defining three relevant markets. Market 1, which was the only market in which a charge control would be imposed, comprised “…exchanges where only BT is present or forecast to be present”. In relation to its forecasts, Ofcom stated that in “…assessing forecasted plans we have only counted operators as present where they have firm

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  • Blackstone Chambers (London)

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James Segan QC, The England and Wales Court of Appeal reinforces that market definition is a tool in competition analysis and substance must prevail over form (Talktalk Telecom / Office of Communications & Anor), 30 October 2013, e-Competitions October 2013, Art. N° 61405

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