By application dated 22 April 2024, Tereos sought an order quashing the CMA’s decision not to grant its requests for: (i) confidential treatment of parts of the CMA’s proposed text of the Phase 1 Decision dated 8 March 2024 ; and (ii) confidential treatment of parts of the issues statement published on the CMA’s website pending the outcome of these proceedings.
The redactions which Tereos had requested and which the CMA had refused to make were: (i) references to the CMA Merger Assessment Guidelines concerning an exiting firm counterfactual and (ii) the CMA’s conclusion, in response to Tereos’ argument that TUKI B2C business would exit in any event absent the merger, that there was no evidence of a decision by Tereos for the TUKI B2C business to exit and no compelling evidence that an exit was inevitable.
Tereos argued that the CMA had made the following errors of law:
- References in the Phase 1 Decision to the CMA’s Merger Assessment Guidelines should have been, but were not, treated by the Procedural Officer as “specified information”. The Tribunal rejected this argument. The CMA could investigate an exiting firm counterfactual of its own motion. There was no error of law in treating references to the CMA’s guidance as not being specified information.
- The Procedural Officer had wrongly applied a test of reasonableness or desirability rather than necessity as required by section 244(4) EA 02. The Tribunal rejected this argument on the basis that the decision did not purport to apply such a test. Rather, it specifically referred to the extent to which disclosure was necessary for the purposes for which the CMA was permitted to make the disclosure.
- It was wrong for the CMA to conclude that prompt publication of the Phase 1 decision was necessary. The Tribunal rejected this argument. The CMA was entitled in the circumstances to conclude that publication of the disputed redactions would not cause significant harm to Tereos’ legitimate business interests. It 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.
For those reasons, the Tribunal dismissed Tereos’ application in its entirety and discharged the interim injunction made on 22 April 2024.
