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CAT upholds refusal of merger remedies variation request


On 10 July 2023 the CAT handed down its ruling dismissing an appeal by D&D against a refusal by the CMA to vary the terms of final undertakings offered by D&D following the CMA’s prohibition of D&D’s acquisition of TMG, a major UK competitor of D&D in the supply of supply of property search report bundles. The CMA ordered a full divestiture of TMG by D&D. Well into the divestiture process, D&D sought to vary the terms of the final undertakings offered to the CMA, to permit D&D in spin its shares in TMG onto the AIM stock market. D&D sought to have a parallel process of divestiture and AIM spin off ostensibly as a means to create further competitive tension in the divestiture process. 

The CMA refused to permit such a variation due inter alia to concerns about D&D and TMG having identical shareholders for an  unspecified period, including the risk that that might affect TMG’s independence from D&D and TMG’s capability and commitment in the market.  

The CAT upheld the CMA’s decision, finding no public law error. The judgment is of interest because it discusses the conditions under which a variation of merger undertakings can be permitted, as well as the issue of common shareholdings as a theory of harm in merger control. 

The judgment can be found here.

TMG intervened in support of the CMA.  Robert O’Donoghue KC acted for TMG, instructed by Fieldfisher LLP.