Final judgment (Non-confidential version)

Neutral citation:

[2006] CAT 9


9 May 2006



Judgment on an application pursuant to section 120 of the Enterprise Act 2002 for judicial review of a decision of the OFT not to refer the anticipated acquisition of Alliance UniChem Plc by Boots Group Plc to the Competition Commission.

The Tribunal applied principles established in the IBA Healthcare and Unichem cases as to the review of an application under section 120. Whilst noting the desirability of the publication by the OFT of a fully reasoned decision, the Tribunal ruled that the witness statement of the OFT’s Director of Mergers (which explained in detail the OFT’s reasoning) was admissible as elucidation of the OFT’s decision to the extent that it did not contradict that decision.

The Tribunal refused the application.

Contrary to the contention of the applicant, the Tribunal found that the reasons given in the OFT’s decision were capable of sustaining the conclusion that with regard to retail pharmacies, a reduction in fascia numbers from four to three, or higher, in local retail markets would not give rise to a substantial lessening of competition and that the continued presence of at least two independent competitors would be expected to be sufficient to prevent any substantial reduction in competitive interaction between the retail pharmacies in the relevant area. It was therefore not unreasonable for the OFT to arrive at its decision without considering the proximity of Boots and Unichem outlets in four to three areas.

This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.