The English High Court found in Attheraces v The British Horse Racing Board [2005] in December 2005 that the governing authority for horseracing in the UK, the British Horseracing Board (BHB), had abused its dominant position in relation to pre-race data, in breach of European Union (EU) and UK competition laws.

The judgment prevents the BHB from forcing Attheraces (ATR), a broadcaster of UK horseracing, to pay significant fees to the BHB for the supply of pre-race data. The case has resulted in a series of legal firsts in respect of private enforcement of EU and UK competition law and is a significant advance in the courts' willingness and ability to deal with these kinds of claims.

The case

The claim related to the supply to ATR of 'pre-race data', information on runners and riders that is necessary to enable bookmakers to take bets on horse races. ATR is a broadcaster of horseraces from certain UK racecourses, and its services include a UK horseracing programming and data product that it supplies to over-seas bookmakers, from Italy to Australia. ATR pays the Press Association (PA) for the supply of a pre-race data feed for ATR's service to overseas bookmakers, with the BHB having a separate agreement to supply the data to PA. The BHB demanded that ATR enter into an additional licence with the BHB and pay significant licence fees in respect of database rights it claimed to hold in the data.

After the European Court of Justice ruled in the William Hill case in November 2004 that the BHB had no database rights in the pre-race data, ATR asked the BHB to clarify the basis on which it sought to require ATR to enter into a licence agreement. In response, the BHB said that unless ATR agreed to pay licence fees to the BHB, it would instruct PA to terminate its supply of pre-race data to ATR (as the BHB was entitled to do under its contract with PA).

ATR then brought the current proceedings, claiming that the threat by the BHB to prevent PA from supplying pre-race data to ATR constituted an abuse of a dominant position under EU competition provisions (Article 82 of the Treaty of Rome) and the UK equivalent, Section 18 of the Competition Act 1998. ATR successfully obtained an interim injunction before the Vice Chancellor in July 2005 (itself only the second such injunction awarded in the English courts).

High Court judgment

In the hearing, ATR argued:

. that the relevant market for the purposes of the proceedings was the supply of pre-race data

– BHB argued for a much broader market;

. that BHB was dominant in the market, indeed an effective monopolist – BHB asserted that it had no dominant position; and

. that BHB's conduct was an illegal refusal to supply ATR; that pre-race data is an "essential facility" controlled by the BHB; that the licence fees proposed by the BHB were excessive and unfair; and that BHB was discriminating unfairly against ATR in particular in comparison with Racing UK, another broadcaster of domestic horseracing.

BHB tried to justify the charges on the basis that ATR should pay BHB for investments made by BHB and others in British horseracing, irrespective of whether those investments directly benefited ATR or overseas bookmakers.

On all of these points the court found in ATR's favour. Indeed, the court held that the BHB had illegally made ATR liable for licence fees due, if at all, from ATR's overseas bookmaker customers, going on to find that the BHB would only have been entitled to charge such book-makers a sum equal to its costs of creating and maintaining the database plus a reasonable return – much less than the licence fees that the BHB sought from ATR.

Legal firsts

This is the first time a court in the UK has ever found that a business practice is an abuse of a dominant market position. It would also appear to be the first time a national court, anywhere in the EU, has definitively ruled that a proposed price or licence fee is illegal under Article 82 because it is excessive, and the first time – alongside Judgment 85/2005 of the Commercial Court Number 5 of Madrid in case Conduit Europe v Telefonica de Espana – where a national court anywhere in the EU has applied the controversial 'essential facilities' doctrine, which requires owners of key assets or intellectual property to make these available to avoid distorting competition.

ATR's victory is even more remarkable given that the judge had ordered a speedy trial, with just three months between ATR winning its interim injunction and the matter going to full trial – a process that could normally be expected to take 12 to 18 months, even in relatively straightforward cases.

Implications for competition law enforcement in the courts

The courts have traditionally been reluctant to entertain often complex and quasi-economic competition law claims. An example of the court's attitude can be found in the Restrictive Practices Court case re Televising Premier League Football Matches [2000] concerning the sale of rights to televise Premier League football matches.

In this case the judge was reported as saying, having heard econometric evidence on the effect of televising matches upon live attendance: "At the moment, I am firmly of the school which says 'This is all too difficult, we had better give up'," and "I am thinking of buying a little flag, which I can raise when we get to a part of the case that I just do not understand, but perhaps a notional flag will do. It is up at this part of the case." Indeed, days before ATR's hearing the High Court struck out in interim proceedings competition arguments against the BHB brought by Victor Chandler International.

The High Court's judgment in the BHB case therefore appears to indicate a greater willingness on the part of courts to act, when presented with a well-argued case.

The judgment was also timely, as the Office of Fair Trading has signalled that the strain on its resources is requiring it to be highly selective in the cases it deals with. At the same time, the European Commission announced in December last year consultations on both the rules for bringing competition law claims in courts and the application of the prohibition of abuse of a dominant position. This case is a clear sign that the courts can and will deal with claims under the competition rules. The BHB is now appealing the High Court's decision.

Howard Cartlidge is head and Francisca Mendia Lara an assistant in the Olswang EU and competition group.