Competition Regulator drops Supreme Court challenge to Kerry – Breeo merger
On 21 April 2016, the Competition and Consumer Protection Commission (the “CCPC”) announced its decision not to proceed with its Supreme Court appeal challenging the takeover of Breeo Foods by Rye Investments Limited, a subsidiary of Kerry Group PLC. Both parties owned and controlled a number of well-known brands in the grocery sector.
In August 2008, the then Competition Authority (predecessor to the CCPC) blocked the acquisition on the basis that the transaction was likely to result in the lessening of competition in a number of food product markets. Under the Competition Act 2002, the CCPC has the power to block, or subject to conditions, any merger or transaction which it determines will lead to a substantial lessening of competition in any market for goods or services in the State. Following a High Court appeal by Rye Investments Limited in April 2009, the Competition Authority’s decision was subsequently annulled and the parties proceeded to implement the transaction. The High Court ruling was appealed to the Supreme Court by the Competition and was due to be heard at the end of April 2016.
The CCPC stated that the Supreme Court appeal has been dropped following a further review of the case and due to the length of time passed since the 2009 High Court decision. The CCPC (and its predecessor) has blocked just three merger transactions since 2003, the others being the planned 2004 merger of IBM and Schlumberger Business Community Services (Ireland) and the planned 2006 merger of Kingspan and Xtratherm. The Kerry Group – Breeo Foods merger represents the first successful appeal of a CCPC prohibition.
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