The Kerry Group/Breeo Merger Case Settles
On 21 April 2016, the Competition and Consumer Protection Commission ("CCPC") announced that it was settling, and therefore not proceeding with, its appeal to the Irish Supreme Court of the CCPC's appeal against the High Court's annulment of the CCPC's prohibition decision regard the purchase by Kerry Group of Breeo Foods.
Between 1 October 1991 and 30 October 2014, Ireland's competition agency was the Competition Authority (the "ICA"). Since 31 October 2014, Ireland's competition agency has been the Competition and Consumer Protection Commission (the "CCPC") which replaced the ICA.
The ICA/CCPC have always had the power to review and approve (absolutely or conditionally) or prohibit certain mergers, acquisitions and related transactions which fall within the scope of Part 3 of the Competition Act 2002 (as amended) (the "2002 Act").
On 28 August 2008, the ICA prohibited the proposed acquisition of Breeo Foods Limited and Breeo Brands Limited (suppliers of certain foodstuffs) by Rye Investments Limited (an indirect, wholly-owned subsidiary of Kerry Group plc). The ICA's 152 page decision (the "Prohibition Determination") found that if the transaction proceeded then it would "substantially lessen competition in the markets for rashers, non-poultry cooked meats and processed cheese in the State". The Prohibition Determination is a very interesting and useful read because it is a very detailed account of how to conduct market definition and how to assess competition in different markets – the case considered potential markets such as sausages, rashers, puddings, spreads and cheeses. The Prohibition Determination is a case study in market definition and analysis.
On 26 September 2008, Rye Investments Limited appealed the Prohibition Determination to the High Court under Section 24 of 2002 Act.
On 19 April 2009, the High Court annulled the ICA's Prohibition Determination. In a very detailed judgment by Cooke J, the High Court quashed the ICA Prohibition Determination. It is the only judgment to date on appeals against ICA/CCPC merger prohibition determinations. The learned judge found that the Prohibition Determination was "vitiated by material error in two respects. The Authority has erred in its determination of the product market for cheese…and has erred in finding that there will be substantial lessening of competition resulting from the acquisition in the markets for rashers and for non-poultry cooked meats in that it has failed to assess correctly the post-acquisition existence of sufficient countervailing buyer power on the part of the retailers such as will deter a price increase imposed by the merged entity."
After the High Court gave judgment quashing the Prohibition Determination, the parties completed the transaction and proceeded to integrate the businesses.
Despite the transaction closing, the ICA appealed the High Court judgment to the Supreme Court. The appeal was due to be heard in late April 2016 – seven years after the appeal was lodged.
On 21 April 2016, the CCPC announced that it was not proceeding with the appeal to the Supreme Court of the High Court judgment annulling the Prohibition Determination. In a statement on www.ccpc.ie, the CCPC stated that it had "decided not to proceed with its appeal to the Supreme Court and has agreed satisfactory settlement terms with Rye Investments Limited relating to the costs of the High Court and Supreme Court proceedings." The CCPC also stated that following "the latest review of the case, taking all the circumstances of this case into account, particularly the passage of time since the High Court judgment, the CCPC has decided not to proceed with the appeal to the Supreme Court."
The settlement of the case may well have been satisfactory for the parties but it leaves a number of questions unanswered. One can see the merits of settling the appeal from the perspective of the acquirer. It is a reasonable inference from the CCPC's statement that the CCPC "has agreed satisfactory settlement terms with Rye Investments Limited relating to the costs of the High Court and Supreme Court proceedings" that the acquirer has, by settling, avoided the risk of having to potentially unwind the transaction seven years on were it to transpire that the Supreme Court upheld the ICA Prohibition Determination but had to pay something towards the CCPC's costs. One can also see the merits from the CCPC's perspective that it did not risk losing a court case (it has not had a very lucky run of cases in the courts – typically settling or losing) and avoiding costs were it to lose the appeal. However, the law is now no clearer. There have been around 700 merger determinations decided by the ICA and the CCPC since 1 January 2003 (when the old Mergers Acts regime was replaced) with only three prohibitions and only one of those was appealed (in this case) and, ironically, the prohibition was annulled, the High Court judgment remains in place but there has been no appeal so the law is still unclear to some extent.
For further information, please contact Dr Vincent J G Power or any other member of the EU, Competition & Procurement Unit at A&L Goodbody Dublin.