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In an important decision that touched on the parameters of competition law, its relationship with the law of consumer protection, and how dominant companies are expected (at least from a competition law perspective) to treat their customers, the CAT found that no abuse had been committed by the defendants.
The Class Representative, Mr Gutmann, alleged that the defendant train companies – First MTR South Western Trains Limited, London & South Eastern Railway Limited and Govia Thameslink Railway Limited – had committed an abuse of dominance by not making sufficiently available, or not doing enough to make passengers sufficiently aware of, certain types of train fares. These are known as “boundary fares”, and can be used as a kind of extension to a Transport for London Travelcard. A Travelcard gives you an entitlement to travel freely within certain transport “zones” of London, while a boundary fare allows you to travel from the “boundary” of one zone out to a particular destination. This means that, if you want to travel from somewhere in central London (zone 1) out of the city, and you already possess a Travelcard for (say) zone 1, you can travel on your Travelcard for part of your journey and use the boundary fare for the rest once you reach the end of that zone. The core allegation was that, by not making these fares sufficiently available and/or not making customers sufficiently aware of them, passengers who owned Travelcards paid more than they needed to by purchasing a full end-to-end fare.
These proceedings hit the headlines in April 2024 when the CAT approved the second ever collective settlement with one of the defendant train companies, Stagecoach South Western Trains Limited. The claims against the remaining defendants continued to a first trial in June and July 2024, in which the only question was whether, assuming that the train companies were dominant in their relevant markets, their conduct amounted to an abuse.
The Tribunal made a number of important observations on the legal and factual context to the claims. One of these was that the train companies did not actually make any extra money from the alleged overcharging. Because of the way Travelcard revenue is paid out, the defendants did not receive anything extra when a holder of a Travelcard purchased a full end-to-end fare. This lack of any ‘commercial benefit’ to the defendants from the impugned conduct is not a complete answer to an allegation of abuse, but it meant this situation could be distinguished from important past cases on abuse like Deutsche Post and DSD**Joined Cases C-147 & 148/97 Deutsche Post v GZS & Citicorp ECLI:EU:C:2000:74, and Case C-385/07P Duales System Deutschland EU:C:2009:456., overall something the Tribunal considered “important context” for the Class Representative’s claims.
Another crucial issue was the relationship between competition law and consumer protection. The Class Representative had sought to use an alleged breach of the Consumer Protection from Unfair Trading Regulations 2008 (the “CPUTR”) as a “vital clue” as to whether an abuse had been committed. The Tribunal rejected this approach, finding that it was not open to the Class Representative to ask it to find non-compliance with the CPUTR, although in any event that, if it could have considered the point, it would have found insufficient evidence to establish breach of the CPUTR anyway.
In this context the Tribunal emphasised that, even though abuse is a broad concept, it is "not unlimited", and that parties should bear in mind that "[c]ompetition law is not a general law of consumer protection". Indeed, the mere fact that the dominant company could have carried out an aspect of its business in a different way that would have benefited consumers does not necessarily mean there is an abuse.
The Tribunal concluded that the Class Representative had not successfully shown there to be a lack of awareness of these kinds of fares which constituted an abuse. The Tribunal’s view was that the Class Representative had failed to adduce proper evidence of this alleged lack of awareness, with no survey conducted for the trial to support his contentions. The data that did exist on sales of boundary fares was not detailed enough to make good his allegations of lack of awareness. In any event, ticket office staff had generally received training on boundary fares and, in the Tribunal's view, they were certainly not a concealed product.
The Tribunal did accept that it would have been possible to do further marketing of boundary fares. However, it emphasised how this had to be seen in the “wider context” of the multitude of priorities which train companies had to balance, meaning (for example) it was reasonable for them to focus on meeting their detailed obligations to the Government under their arrangements with the Department for Transport (a point important for any business operating in a heavily-supervised or regulated industry) above launching a marketing campaign for a specific type of fare.
The Tribunal also rejected the Class Representative's claims that the lack of availability of boundary fares constituted an abuse. Boundary fares were accessible to varying extents during the relevant period (dating from October 2015 to May 2024) through the different 'channels' where you can buy tickets – broadly, ticket offices, ticket vending machines, online, and through third-party retailers (like Trainline.com). Examining each category, the Tribunal did not find that the lack of availability of these fares through these channels met the threshold for an abuse. Over the period, boundary fares were generally available through some channels (such as ticket offices), and where they weren't always readily accessible (such as online, certain ticket vending machines, and third-party retailers) the Tribunal largely considered this reasonable on the facts, including having regard to the other competing priorities which train companies (understandably) focused on (such as preventing ticket fraud).
This case raises some complex and nuanced issues about where the line for an abuse should be drawn. Despite facing some highly fact-specific questions, the judgment articulated an important point of principle in how the "special responsibility" of dominant companies "does not create an obligation on the dominant company to organise or conduct its business so as to achieve the best outcome for its customers" or to “assist all its customers to pay the lowest price”. Indeed, it demonstrates that any investigation by the Tribunal into whether an abuse has occurred must properly analyse the complex legal and commercial matrix in which that conduct sits, including the other obligations (regulatory or otherwise) that business is working to meet as well as any commercial benefit that flows to it from the relevant conduct. This will no doubt not be the last word on the topic, and the boundaries between competition and other areas of law, like consumer or environmental protection – especially in heavily-regulated industries – will remain a contentious area for future claims.
Meanwhile, in terms of these proceedings, Class Representative Mr Gutmann has confirmed that he will not be seeking to appeal the Tribunal’s judgment. For these train companies, at least, this does appear to be end of the line for these claims.
Linklaters acted for the Secretary of State for Transport, who was the intervener in these proceedings.
*Gutmann v First MTR South Western Trains limited, London & South Eastern Railway Limited, Govia Thameslink Railway Limited & Others [2025] CAT 64
**Joined Cases C-147 & 148/97 Deutsche Post v GZS & Citicorp ECLI:EU:C:2000:74, and Case C-385/07P Duales System Deutschland EU:C:2009:456.
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