The CMA had decided to intervene in purchases by the appellant from a competitor when it ceased trading.The French court had ordered the sale of the assts.
Held: UK law distinguishes between the acquisition of assets constituting a business and the acquisition of ‘bare’ assets. Concentrations arising from the acquisition of bare assets are not subject to statutory merger control ex ante, even if they have potentially adverse effects on competition, although they may be subject to heightened regulation
Held: The Authority’s appeal succeeded. The provisions of the 2002 Act which dealt with the control of mergers was not limited in its range to businesses still omngoing. The fact that the acquisition was of the assets of an insolvent, no longer trading, company did not exclude the Authority’s role. The decision of the CAT was restored.
The possession of relevant ‘activities’ is simply a descriptive characteristic of an enterprise. It may be characteristic of the enterprise notwithstanding that the activities are not actually being performed at the moment of the transaction, provided that there still exists the capacity to carry them on as part of the same business, whether in the hands of the existing proprietor or of someone else. That is why Sir Colin Rimer was right in his instinctive view that the sale of a seasonal business out of season would in principle be subject to statutory merger control.
Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Reed, Lord Hodge
[2015] UKSC 75, [2015] Bus LR 1573, [2015] WLR(D) 527, UKSC 2015/0127
Bailii, Bailii Summary, WLRD, SC, SC Summary
Enterprise Act 2002
England and Wales
Citing:
See Also – The Societe Cooperative De Production Seafrance SA v Competition and Markets Authority (Ruling (Permission To Appeal) CAT 20-Jan-2015
. .
Appeal from – Societe Cooperative De Production Seafrance Sa v Competition and Markets Authority CA 15-May-2015
The company appealed against the rejection of its challenge to a decision that the conditions had arisen allowing the defendant to intervene in its purchase of certain shares in a rival cross channel ferry company. he question was whether part of . .
See Also – Societe Cooperative De Production Seafrance SA v Competition and Markets Authority CA 10-Jul-2015
The CA had earlier allowed an appeal by the company to hold the respondent’s decsion wrong that an event had occurred allowing it to intervene in the acquisition of a competitor’s assets. Leave to appeal to the Supreme Court remained pending, but . .
Cited – Groupe Eurotunnel Sa v Competition Commission and Others CAT 4-Dec-2013
. .
See Also – Groupe Eurotunnel SA v Competition Commission CAT 30-Aug-2013
. .
Restored – Groupe Eurotunnel SA v Competition and Markets Authority CAT 9-Jan-2015
Judgment . .
Lists of cited by and citing cases may be incomplete.
Commercial, Company
Updated: 08 January 2022; Ref: scu.556978