Regulatory bodies must apply the principle of equal treatment in all steps leading to the imposition of a penalty. What does this mean? It means that regulators must treat parties that are in a comparable position equally, unless a difference in treatment can be objectively justified. If a regulator does not apply this principle, it runs the risk that its decisions will be challenged. A recent English Court of Appeal decision1 illustrates this.
The case concerned an investigation by the UK Office of Fair Trading (OFT) into infringements of competition law, specifically the retail pricing of tobacco products.
The appellant companies signed early resolution agreements with the OFT admitting certain infringements of competition law and received reduced penalties. The OFT later issued a decision which made findings of infringement against them, as well as other companies, including a company called TMR. However, due to assurances given by the OFT to TMR before it signed its early resolution agreement, TMR's penalty was refunded. The appellants argued that this breached the principle of equal treatment and could not be objectively justified.
The English High Court found that the OFT was required to afford equal treatment to all who participated in the early resolution process and that it breached this principle by giving more favourable assurances to TMR. It stated that the appellants had a strong right to, and expectation of, equal treatment. It noted that the OFT had published a policy for settling competition law cases, which stated that "Fairness, transparency and consistency are integral to an effective settlements process." The Court said that as the OFT's policy documents emphasised the importance of respecting the principle of equal treatment, that principle should have been applied when imposing penalties.
WHAT DOES THE APPLICATION OF EQUAL TREATMENT INVOLVE?
The principle of equal treatment demands that parties who are in a similar position be treated in a similar manner, unless a difference in treatment can be objectively justified. This does not mean that parties in similar positions must be treated identically or that a public body is required to replicate exchanges with parties "word for word".
In Gallaher & Somerfield , the assurances given to TMR placed it in a far more favourable position than the appellant companies. The Court said the assurances were therefore a substantial and valuable benefit which fell within...