CMA wins merger test case in Supreme Court

16 Dec 2015

In a case which it described at the permission stage as one of “particular public interest”, the Supreme Court has allowed an appeal by the Competition and Markets Authority (CMA) against the decision by the Court of Appeal that the acquisition by Eurotunnel of 3 out of Seafrance’s 4 ferries, together with certain other business assets, which had not traded at the time of the acquisition for some seven and a half months, did not amount to an “enterprise” (i.e. “the activities or part of the activities of a business”) so as to give rise to a “relevant merger situation” over which the CMA had jurisdiction.   This was the first time the jurisdiction provisions of UK merger control had been considered by the UK’s highest court for over 20 years.   The appeal raised the issue of when acquired assets are simply “bare assets” and when the can be considered to involve the acquisition of a business (or part of one) and therefore subject to UK merger control.  As part of its analysis the Court considered when employees can be said to be transferred as part of an acquisition in the absence of a transfer of employment contracts.

Ben Rayment was instructed by the CMA

For a copy of the Supreme Court’s Judgment click here.