The Competition Appeal Tribunal decision that OnTheMarket’s ‘one other portal’ rule was not anti-competitive focused on the “wrong framework and irrelevancies”, the Court of Appeal has been told.
Connells brand Gascoigne Halman launched its appeal against last year’s ruling, with Paul Harris QC telling the court that the Tribunal had mistakenly focused on how a new portal could enter the market rather than on the “contractual restraints”.
Mr Harris argued that the ‘one other portal’ rule meant that OTM could grow through contractual restrictions rather than on merit. He said this was anti-competitive and “naked protectionism”.
He said: “The contractual restrictions disrupt the market by preventing [other] portals from having property content, thus preventing their lifeblood.”
Mr Harris added that it also restricted supply for estate agents.
He said the Tribunal had also failed to consider the way agents use portals to compete on service, adding that the rule “restricts competitive choice” regardless of whether it is up to an agent to sign up.
Mr Harris also questioned OTM’s argument – supported in the CAT judgement – that it would have been impossible to enter the market without the ‘one other portal’ rule, highlighting that this has since been dropped.
He said: “The CAT did not know that it is possible to act without the ‘one other portal’ rule as it is now being done by them [OTM].”
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