Ruling of the Tribunal on an application by the Competition Commission (“the Commission”) to reject, in whole or in part, the notice of application filed by Stagecoach Group plc (“Stagecoach”). By its notice of application dated 8 December 2009 Stagecoach applied to the Tribunal for a review under section 120 of the Enterprise Act (“the Act”) of the decision of the Commission dated 11 November 2009 contained in a report entitled “Stagecoach Group plc/Preston Bus Limited Merger Inquiry”.
The Commission primarily argued that because Stagecoach had made it clear that it intends to sell the acquired business for its own commercial reasons, it made no difference how the Tribunal determines the grounds set out in Stagecoach’s notice of application. The appeal was therefore “moot” or hypothetical. Because of this, Stagecoach was not “a person aggrieved” by a decision of the Commission within the meaning of the legislation.
The Tribunal unanimously dismissed the Commission’s application to reject the notice of application.
The Tribunal concluded that Stagecoach was a person aggrieved by the Commission’s decision. The Tribunal held that it was difficult to conceive of a situation where the parties to a merger which the Commission has decided results in an anti-competitive outcome would not be persons aggrieved by that decision. The Tribunal further held that a party to a merger which has been the subject of an adverse report under the Act does not lose its right to apply for a review simply because it is prepared, pending the determination of that application, to abide by the interim undertakings to which it remains subject and to cooperate with all or part of the post-decision process envisaged by the relevant provisions of the Act. Furthermore, the Tribunal accepted Stagecoach’s submission that it was a person aggrieved because the terms upon which it negotiates the sale of the acquired business were different depending on whether the divestment takes place against the background of the Commission’s findings or not.
