Tribunal rules in favour of OnTheMarket in property portals case
The Competition Appeal Tribunal has found in favour of property website OnTheMarket, deeming its "one other portal" rule, which restricts agents to promoting listings on its site and either Rightmove or Zoopla, did not infringe competition law. The tribunal hearing, which concluded in February but the findings were released this week, was brought about when Cheshire-based estate agents Gascoigne Halman, a former member of OnTheMarket, claimed the rule was anti-competitive. OnTheMarket is owned by a consortium of estate agents, Agents' Mutual that includes Savills, Chestertons and Knight Frank.
The full decision runs to 168 pages but the summary of this afternoon’s judgement, issued by the CAT, is:

3) a rule requiring members to promote only OnTheMarket and not any other property portal (the “Exclusive Promotion Rule”).

2) a rule restricting membership of Agents’ Mutual to full-service office-based estate or letting agents, as opposed to agents operating only online (the “Bricks and Mortar Rule”); and

1) a rule by which an estate agent member may list its properties on no more than one other portal (the “One Other Portal Rule”);

Gascoigne Halman further contended that the One Other Portal Rule formed part of a wider arrangement between Agents’ Mutual and others collectively to boycott Zoopla and/or Rightmove, contrary to the Chapter I prohibition.

For the reasons given in the Judgment, the Tribunal held that the Competition Issues be determined against Gascoigne Halman. More specifically, the Tribunal held that:

1. As regards the One Other Portal Rule:

(a) The rule did not infringe the Chapter I prohibition by object.

(b) The rule did not infringe the Chapter I prohibition by effect.

(c) The rule was, in any event, objectively necessary to the “Arrangements” (the various rules which bind members of Agents’ Mutual, namely the listing agreement, articles of association and membership rules) as a whole, which were pro-competitive.

(d) The rule did not form part of a wider concerted practice to “boycott” Zoopla and was not invalid on that account.

(e) The rule was not an exempt agreement within the meaning of section 9 of the CA.

(f) If, contrary to the Tribunal’s conclusions, the rule did infringe the Chapter I prohibition, the Tribunal found that it was not severable from the Arrangements.

2. The Bricks and Mortar Rule did not infringe the Chapter I prohibition by object. If, contrary to the Tribunal’s conclusion, the rule did infringe the Chapter I prohibition, the Tribunal found that it was severable from the Arrangements.

3. The Exclusive Promotion Rule did not infringe the Chapter I prohibition by object. If, contrary to the Tribunal’s conclusion, the rule did infringe the Chapter I prohibition, the Tribunal did not consider it to be objectively necessary. The Exclusive Promotion Rule was severable from the Arrangements.

Because the Competition Issues were determined within the broader context of proceedings in the Chancery Division, the Tribunal made no further order beyond the determinations set out above.