When can the Competition and Markets Authority publish commercially confidential information during a merger inquiry?

08/11/24

The Competition Appeal Tribunal ruled in its judgment in Tereos v CMA [2024] CAT 62,  a judicial review brought under section 120 of the Enterprise Act 2002, that confidential treatment for commercially confidential information disclosed by the disposing party as part of a Phase I merger inquiry was not absolute. The CMA was entitled to weigh up the interests of the party disclosing the information as against the public interest in the CMA being able to explain in its Phase 1 decision the reasons for referring a proposed merger to a full Phase 2 inquiry.

The dispute arose from the proposed acquisition by T&L Sugars Ltd (known for its Tate & Lyle brand) of the UK packing and distribution site and business-to-consumer activities of Tereos United Kingdom and Ireland Ltd (known in particular for its Whitworths Sugar brand) from Tereos SCA, headquartered in France. The transaction was notified to the CMA in advance under the EA 02.

The CMA decided at Phase 1 to refer the transaction to a full Part 2 investigation and proposed to publish in its decision to do so material which was considered by Tereos to be potentially very detrimental to the merger proceeding to completion

Before the CMA could publish, Tereos obtained an interim ex parte on notice order from the then President of the Tribunal Sir Marcus Smith on 22 April 2024 restraining publication of the material in dispute, so that the Phase 1 decision was published without that material (referred to as the Disputed Redactions).

After a full inter partes hearing on 23 May 2024, Andrew Lenon KC, sitting alone as Tribunal chair, handed down judgment which was published on 25 October 2024. The Tribunal held at [51] that “the CMA was entitled in these circumstances to conclude that publication of the Disputed Redactions will not cause significant harm to Tereos’ legitimate business interests and that the CMA was therefore required to publish the Disputed Redactions as part of the reasons for referring the Merger to Phase 2 pursuant to section 107 EA 02”.

In the event, the parties to the merger were successful in obtaining clearance for the disposal at the Phase 2 stage, provisional clearance being announced on 6 August 2024 and the final report on 3 September 2024. The transaction then proceeded to completion.

The judgment can be found here.