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The Competition Appeal Tribunal has handed down judgment in Sabre Corporation v. CMA, a significant case concerning the CMA’s jurisdiction over mergers under the Enterprise Act 2002.
The case concerned an intended merger between Sabre Corporation and Farelogix Inc, companies which provide technology and software to airlines. The CMA found that it had jurisdiction over the merger on the basis of the share of supply test and concluded that the proposed merger may be expected to give rise to a substantial lessening of competition in two markets: the supply of merchandising solutions to airlines and the supply of distribution solutions to airlines, both of which are worldwide markets. The CMA prohibited the merger.
Sabre challenged the description of services used by the CMA to assess the share of supply test, the application of the share of supply test to Farelogix’ contractual arrangements with BA in the UK and the determination of whether the merger gave rise to an increment over Sabre’s existing share of supply. The CAT upheld the CMA’s findings on each of these issues. The judgment contains detailed consideration of a number of sub-sections of section 23 of the Enterprise Act which have not been in focus in previous cases, as well as a detailed consideration of the standard and intensity of review which ought to be adopted by the CAT in relation to findings of jurisdiction.
Rob Williams QC and Conor McCarthy, were instructed by the CMA.
Tim Ward QC, Nik Grubeck and Alison Berridge and were instructed by Skadden, Arps, Slate, Meagher & Flom on behalf of Sabre Corp.