At a hearing of the Competition Appeal Tribunal on the of 21st of June 2016, the President of the tribunal, Mr Justice Roth determined that the claim lodged by UKRS Ltd raises a legal question which should be decided at a preliminary issue hearing scheduled for the 6- 7th October 2016. The narrow question to be determined at that hearing is whether the Respondents, the NSAR can be considered an "undertaking" and thus subject to competition law.
The preliminary issue raises an interesting point of competition case law concerning the status of non-statutory private entities engaged in regulatory activity. The essential test of whether an entity is an ‘undertaking’ is whether it is engaged in economic activity as discussed in Case C-41/90 Hofner and Elser v Macrotron  ECR I-1979,  4 CMLR 306 (“Hofner and Elser”) and the case-law establishes that, in determining whether an activity is ‘economic’, the courts will consider a variety of factors. The Respondents aver that the activities of the NSAR are not economic in character as it is operating a regulatory function on behalf of Network Rail in connection with Network Railway’s health and safety obligations.
Roger Sahota of is instructed on behalf of UKRS limited. Tristan Jones of Blackstone Chambers is instructed Counsel.
Further details and a full transcript of the hearing is available at the CAT website.