Part 3: Enforcement of consumer protection law Miscellaneous and appeals Section 202: Appeals
This section provides for appeals from certain direct enforcement decisions taken by the CMA under this Chapter.
	Appealable decisions: Subsection (1) sets out the CMA decisions and directions against which an appeal under this section can be brought, when given by a relevant notice or imposed by virtue of a relevant notice. Subsection (8) defines "relevant notice" for the purpose of this section. These are any final direct enforcement notices under this Chapter through which a penalty may be imposed on the respondent.
	Persons able to bring appeals: Subsection (1) also sets out that any person to whom a relevant notice is given may bring an appeal. This includes a member of the same interconnected corporate group, to whom a relevant notice has been given under section 200.
	Grounds for appeal are set out in relation to a monetary penalty and directions in subsections (2) and (3) respectively. These provide for a right of appeal "on the merits". The appeal court is able to:
inquire into the correctness of the CMA’s findings of fact and into the correctness of the CMA’s analysis of, and conclusions drawn from, those facts,
inquire into the correctness of the CMA’s interpretation of the law,
inquire into the correctness of the discretion exercised by the CMA.
	The final ground of appeal, in subsection (2), paragraph (d) and subsection (3), paragraph (d), reflects in particular the Government’s intention that the appeal court will have discretion to hear fresh evidence on appeal. There could therefore arise circumstances where the appeal court finds that on the evidence before it, the CMA arrived at a reasonable conclusion, but on the basis of the new evidence before the court, the CMA’s conclusions were nonetheless wrong. This reflects the observation of the Court of Appeal in CMA v Flynn Pharma, [2020] EWCA Civ 339, at paragraph 146.
	Appropriate appeal courts (subsection (9)), these are:
The High Court in England and Wales or Northern Ireland, or
The Outer House of the Court of Session in Scotland.
	Powers of appeal court (subsection (4)). The appeal court will be able to confirm, vary or set aside the CMA’s notice, or any part of it. In addition, it may also remit the matter under appeal back to the CMA, save where the appeal relates to a final false information notice. For example, the appeal court may:
Impose, revoke or vary the amount of any penalty imposed by virtue of a notice,
Give such directions, or take such other steps, as the CMA could have given or taken,
Make any other decision which the CMA could itself have made,
Confirm the CMA’s decision and dismiss the appeal, including if the court concludes that the decision was the right one but for different reasons than those given by the CMA.
	The policy intent is that a court conducting an appeal on the merits under this section should interfere only if it concludes that the decision is wrong in a material respect (reflecting the observation of the Court of Appeal in T-Mobile v Ofcom [2008] EWCA Civ 1373, as approved by the Court of Appeal in CMA v Flynn Pharma, [2020] EWCA Civ 339, at paragraphs 143 to 147).
	The time limits within which an appeal must be brought are (see subsections (6), (7) and (9)):
Within 60 days of the CMA giving a final notice to a person,
Except for appeals of final false information enforcement notices which must be brought within 28 days of the CMA giving that notice to a person,
The appeal court may extend the period for bringing an appeal, for example, to further the overriding objective set out in rule 1.1 of the Civil Procedure Rules (England and Wales).
	Effect of appeals (subsection (8)): The requirement to pay a penalty, and the requirement to pay compensation (under an enhanced consumer measure direction) will be suspended until an appeal of these decisions is determined. Otherwise, the making of an appeal will not automatically suspend the effect of any directions to which the appeal relates.