The Competiton and Markets Authority (CMA) prohibited the acquisition of Farelogix by Sabre Corporation following a phase II inquiry on the basis, very broadly: that Farelogix was a potential competitor to Sabre in the markets for technology to support the sale of tickets for air travel and that Sabre's acquisition of Farelogix would remove an innovative competitor from the market and that there would therefore be less innovation (and potentially higher prices) in the medium to long term. Essentially, a 'killer acquisition'. In this respect there had been a number of customer (airline) complaints about the merger. The US Department of Justice had sought to block the transaction in the US courts, but had failed to do so.
Share of supply test UK merger control
Sabre appealed this finding to the Competiton Appeal Tribunal (CAT), not on the competition assessment, but on the basis of jurisdiction. The 'share of supply test' gives the CMA jurisdiction over mergers where the transaction results in the creation or strengthening of a share of supply of 25 per cent or more in relation to the supply of goods or services of any description in the UK or a substantial part of it (Enterprise Act 2002, s.23).
Sabre argued that the CMA's application of the share of supply test was illegal and irrational. In particular, they argued that their products did not overlap with those of Farelogix (at present) and therefore that there could be no increment in the share of supply, or if the description of goods being supplied was wide enough to encompass both sets of products, then it should also include a whole range of other products which would mean that the increment took the combined share to less than 25 per cent. One element of this was that the CMA had used a description of goods or services that Sabre argued was unrecognisable to the industry.
In a judgment of 156 pages, the CAT essentially confirmed that the CMA has an extremely wide discretion, as an expert tribunal, to assess the appropriate description of goods or services for the purposes of the share of supply test and accordingly its application of the test was neither irrational or illegal.
The case demonstrates the potentially very wide scope of the share of supply test (not just in relation to the description of products or services, but also territorially), the willingness of the CMA to take bold prohibition decisions and the difficulty of challenging those decisions at the CAT.
In particular, perhaps surprising from a legal perspective is that the CAT acknowledged that "where the CMA's assessment involves matters of economic judgment, [it] must show deference to the CMA's assessment being that of an expert tribunal" (paragraph 85(4)). This is curious because the CAT is itself recognised in previous appeal cases as being an expert tribunal and in this case the appellate expert tribunal is essentially showing deference to the CMA as an administrative expert tribunal.
If you would like to discuss any of the issues raised by this post, please do not hesitate to contact Noel Beale or your usual Burges Salmon LLP contact.
"where the CMA's assessment involves matters of economic judgment, [it] must show deference to the CMA's assessment being that of an expert tribunal"