Allergan PLC & Ors v The Competition and Markets Authority
[2024] EWCA Civ 1023
Cérélia Group Holdings SAS & Anor v Competition and Markets Authority
11 April 2024
[2024] EWCA Civ 352
Court of Appeal
Two companies merged, and the government's competition watchdog said the merger would hurt competition. A court said the watchdog had done a good job investigating, even though they took a bit longer than planned, and the merger needed to be undone.
Key Facts
- •Cérélia Group Holding SAS acquired Jus-Rol assets from General Mills, Inc.
- •The Competition and Markets Authority (CMA) found the acquisition resulted in a substantial lessening of competition (SLC) in the UK wholesale supply of dough-to-bake (DTB) products.
- •The CMA ordered divestiture as the only sufficient remedy.
- •Cérélia appealed the CMA's decision to the Competition Appeal Tribunal (CAT), which upheld the CMA's findings.
- •Cérélia appealed to the Court of Appeal, raising five grounds of appeal.
- •The grounds of appeal concerned the CMA's assessment of competitive constraints from Bells and Henglein, and procedural issues related to a time extension granted by the CMA.
Legal Principles
Judicial review of CMA decisions by the CAT applies the same principles as judicial review by a court.
Enterprise Act 2002, section 120(4)
The intensity of judicial review varies depending on the nature of the decision and the court's expertise; a high-intensity review is appropriate for factual judgments in merger cases.
Office of Fair Trading and others v IBA Healthcare Limited [2004] EWCA Civ 142
The CMA must have ‘special reasons’ to extend the time for completing its investigation under section 39(3) EA 2002. The meaning of 'special' is fact and context-specific.
Enterprise Act 2002, section 39(3)
A decision made in breach of a procedural requirement is not automatically a nullity; the court has discretion as to remedy.
R v Soneji [2006] 1 AC 340; R (Edwards) v Environment Agency [2008] UKHL 22; IRC v National Federation of Self Employed and Small Businesses [1982] AC 617
The CMA has a duty to consult with relevant parties where a decision is likely to be adverse to their interests (section 104 EA 2002). Adequate information must be provided to allow a fair response.
Enterprise Act 2002, section 104
Outcomes
The Court of Appeal dismissed Cérélia's appeal.
The Court found that the CMA's findings regarding competitive constraints and the time extension were rational and supported by sufficient evidence. The Court also refused permission to appeal on a new point raised by Cérélia for the first time on appeal.