Earlier this year, I suggested that the law on when an asset acquisition might amount to a merger was somewhat opaque. The Court of Appeal’s decision in Eurotunnel II  EWCA Civ 487 has brought some additional clarity, although the messy procedural history of that case has caused its own problems.
A quick re-cap on the background. Cross-channel ferry company SeaFrance went into liquidation in 2011. It could not be sold as a going concern, and there was instead an asset sale. Eurotunnel bought three ferries and various other assets.
The OFT (now the CMA) decided to investigate whether the acquisition was a merger. The basic question under the Enterprise Act was whether Eurotunnel had acquired “the activities, or part of the activities” of SeaFrance.
At the risk of stating the obvious, an asset is not an activity. However, there were some features of the asset sale – including the fact that the vessels were maintained ready to sail at short notice, and that a deal had been done to incentivize the re-recruitment of SeaFrance’s staff by any new owner – which the OFT considered meant that the relevant “activities” had been acquired. Continue reading
When is an asset acquisition a merger? As the Eurotunnel litigation shows, the answer is not clear-cut.
The background is the 2011 liquidation of the cross-channel ferry company SeaFrance. It could not be sold as a going concern, so instead there was an asset sale. Eurotunnel bought three ferries and various other assets including the SeaFrance logos, brand and trade name, computer software, websites and domain names, and IT systems. Continue reading
Recent public sector reforms have relied on choice and competition to increase the quality and quantity of service provision, whilst also controlling cost, through a programme known as Open Public Services. The use of choice and competition gives rise to public service markets, and ensuring that these markets function effectively is one of the Competition and Markets Authority’s declared objectives. Higher education constitutes one of the larger public service markets, and to understand how the market for undergraduate education in England functions, in October 2013, the OFT launched a Call For Information. Continue reading
In its recent decision in British Sky Broadcasting Ltd v Office of Communications  EWCA Civ 133 the Court of Appeal has sent a strong message to the CAT, criticising the Tribunal for its failure to properly consider the reasons underpinning Ofcom’s original decision to impose licence conditions on British Sky Broadcasting Ltd (“Sky”). Continue reading
It is again time for a round-up of recent competition law developments which have caught our attention.
Most attention-grabbing of all was the European Commission’s genius/bizarre/inexplicable decision to publish a comic book which is probably best described as a bureaucrat’s fantasy. A young Commission official (Thomas) starts talking to a beautiful woman (Chloe) in an airport departure lounge. Instead of ignoring his slightly creepy advances, Chloe turns out to want nothing more than to hear about the Commission’s antitrust work. Indeed, when Thomas false-modestly suggests that he might be boring her, she insists she wants to hear more:
And so starts the most fascinating hour of Chloe’s life. I should thank the Legal Cheek blog for bringing this important piece of work to my attention. Continue reading
The Court of Appeal, in TalkTalk v Ofcom  EWCA Civ 1318, recently gave an important reminder to all competition practitioners that market definitions are a tool rather than an end: what matters is substance not form.
The facts of the case were relatively simple. Ofcom conducted a market review for wholesale broadband access and, in December 2010, issued a decision defining three relevant markets. Market 1, which was the only market in which a charge control would be imposed, comprised “…exchanges where only BT is present or forecast to be present”. In relation to its forecasts, Ofcom stated that in “…assessing forecasted plans we have only counted operators as present where they have firm plans to deploy in specific exchanges”. Ofcom conducted an assessment by reference to those criteria and identified 3,389 exchanges which fell in Market 1. Ofcom deliberately included 700 exchanges in Market 1 on the basis that although TalkTalk had announced an intention to rollout into such exchanges (in competition with BT), the plans were not yet “firm” or “committed”. By July 2011, however, when Ofcom came to issue its decision on the precise form of the charge control for Market 1, the factual position had changed. In particular, in the seven months since the market definitions were adopted, TalkTalk had either deployed, or now had firm plans to deploy, in all 700 of the exchanges which had been included in Market 1.
Did Ofcom have to conduct a new market review, so as to change the ambit of Market 1, by removing the 700 exchanges in which TalkTalk was now “present”, using Ofcom’s own definition? Continue reading
We do not normally use this blog for promotional purposes, but we thought we would make an exception to say that Legal 500 announced this morning that Blackstone Chambers is the winner of its inaugural award for Chambers of the Year in EU and Competition Law.
Thinking that I might give our readers a flavour of our work, I asked the chambers marketing team to give me a list of the main EU and Competition law cases which our barristers have been in over the last year or so. They came back with a list of 27 cases involving, coincidentally, 27 barristers (the “27” is coincidental since many of the cases involved several barristers, many of whom appeared in numerous cases). I will spare you the detail – suffice it to say that we are very proud to have won, and we hope you will forgive us this one-off collective pat on the back.