“We Almost Had a Deal”: Re-evaluating CMA’s Heavy-Handed Merger Control Approach In Light of JD-Footasylum And Other Experiences
Market integration moves such as mergers and acquisitions (M&A) have become increasingly common in various economies around the world. However, these combinations may give rise to competitive concerns, prompting scrutiny and intervention by anti-trust enforcers. Recently, concerns arose over the acquisition of Footasylum by UK sports giant JD Sports (JD), which was blocked by the Competition and Markets Authority (CMA or Regulator) through its final report (report) in May 2020.
Amidst allegations that CMA’s action was ‘prejudged and erroneous’, this contribution will analyse the rationale behind the decision in the JD-Footsalyum case. Furthermore, it analyses the need for it to be reassessed in light of the unprecedented consequences brought by COVID-19 (or pandemic) along with the recent legal developments in the European Union (EU). This analysis will delve into the detrimental impact of the decision on the already suffering business of Footasylum, and the problems associated with its divestiture, as suggested by CMA. Moreover, it evaluates the impact of the increasing dominance of e-commerce players due to shifting consumer behaviour, and the viability of the failing firm’s defence in this case. In view of this, the contribution will then reflect upon other recent decisions of CMA that demonstrate its increasingly interventionist policy and its implications for retail M&A. Lastly, it will assess the legal remedies available to the parties and the pre-requisites to be fulfilled for an appeal against CMA’s decisions to be sustainable.
- Reasons behind the merger block
According to CMA, Footasylum was a close competitor to JD in the retail space. Therefore, allowing the JD-Footasylum merger would have resulted in substantial lessening of competition in the market. CMA thereby reversed the merger in consonance with the Competition Act 1998 (the Act), Enterprise Act 2002 and also Article 101 of the Treaty for functioning of the European Union (TFEU).
- Analysis of the decision
- The impact of COVID-19
Although CMA acknowledged the financial impact the of pandemic, they believed that its impact could not override the competition concerns caused by the merger. This section, however, argues that CMA failed to address the ‘seismic impact’ of the pandemic, which has caused a shift in the consumer behaviour. It puts forth an argument for allowing the merger, in the interest of Footasylum, since the increased competition by e-commerce players is likely to have an impact on retailers like it, that are disproportionately hit by the accelerating online shift.
The UK is the fourth largest e-commerce market in the world and largest in the EU. The apparel and footwear sector has immensely benefitted e-commerce players like Amazon, Flipkart, ASOS and Net-a-porter, as it constitutes 14% of the online retail market share and values at around £9,135 million.
The pandemic has greatly impacted and altered the overall-consumer behaviour, resulting in a dramatic increase in online sales. The shifting consumer behaviour to shop in-store has benefitted e-commerce players, like Amazon. In a recent survey, 42% of the people asserted that they will continue to shop online even after the lockdown restrictions are lifted and over 51% have expressed that they are likely to retain these habits. Thus, the increasing dominance of the e-commerce players coupled with low footfall has adversely impacted the physical sales.
CMA dismissed the impact of reduced physical sales of both JD and Footasylum, considering their online presence. However, the online penetration of both JD and Footasylum has been low as it constitutes only a marginal proportion of their sales. This extrapolates the impact of the altered consumer behaviour on this case. Considering this lack of acknowledgement coupled with the circumstances under the pandemic, the JD-Footasylum merger begs re-evaluation, as statistics evince that footfall is likely to remain low even after the lockdown restrictions are uplifted and both entities continue to face cut-throat competition posed by ‘sophisticated and well-resourced online retailers’.
Moreover, major sportswear brands like Nike, Adidas and Puma offer their individual online services which makes the current market more competitive. The report has prima facie failed to consider the aggregate effect of all these constraints in this case, and gauge the radically changing competitive landscape amidst the pandemic.
Thereby, considering the current circumstances, a merger would have ensured Footasylum’s survival. The decision to block the merger poses significant negative effects, both due to the competitiveness of the market, along with Footasylum’s already dire circumstances and future divestiture, as discussed below.
- Major loss for Footasylum
Footasylum’s shares had tumbled by a whopping 47% in 2018 and it was encountering losses in 2019, hinting that it was no longer a major player in the ‘challenging’ retail market. The UK clothing and footwear market is expected to decline considerably; raising doubts over Footasylum’s capability to exist independently.
Additionally, the order has directed JD to sell Footasylum to a suitable buyer, which entails certain complications. Experts believe that Sports Direct (SD) remains the most likely buyer with the requisite capital. SD’s revenue increased by 10.2% to £3,701.9 million till the end of 2019. It has become the largest market player and thus, its becoming an alternative acquirer would not allay competitive concerns. Foot Locker, as another alternative, has incurred heavy losses recently, which would make it ill-equipped to indulge in expansive moves in the near future. Further, CMA acknowledged in the report that certain brands like ASOS and Gymshark that had recently started their online business, make it unlikely for them to purchase Footasylum. Clearly, finding prospective purchasers is going to be difficult in the current retail market, as already experienced in the recent failed sale and collapse of Oasis and Warehouse Group.
The report does not disclose the exact time for implementing the suggested divestiture. However, the CMA Merger remedy guidelines (guidelines) stipulate that the standard divestiture period is six months, which may be extended for the effective disposal. Admittedly, in the present case, if the standard period of six months is extended, it is likely to open the market for more buyers apart from SD and extinguish the competition concerns, but it would also make the divestiture tedious, with some adverse ramifications. A major risk in this scenario would be of selling Footasylum at a fire-sale price considering that the financial impact of the pandemic may persist. Footasylum might not prove to be strong enough to compete, or even survive independently, without the option to ‘piggyback upon JD’s resources.’ Moreover, certain risks such as the difficulty in maintaining and retaining employees during the time of very low disposable income would remain problematic. These problems have been acknowledged by CMA, but would require adequate redressal.
Thus, with a high possibility of SD acquiring Footasylum unless there is an extension of the standard period, both the prospects appear problematic. Moreover, since an appeal has been filed by JD to Competition Appeal Tribunal (CAT), the process of divestiture and its timeline still hangs in uncertainty.
- ‘Failing Firm Defence’: A viable option?
In this context the ‘failing firm’ defence (FFD)becomes relevant. This concerns a situation where the perilous financial condition of a merging firm may change the analysis of a competition authority about an otherwise anti-competitive merger. It involves an assessment of whether the firm would have exited the market (by failure or otherwise), absent the transaction. This defence requires a dynamic and forward-looking counterfactual analysis about future competition.
Clearly, CMA has a high threshold for accepting this defence to clear a merger. The FFD has gained prominence in light of the catastrophic financial impacts of the pandemic, whereby this defence was provisionally accepted in the recent episode of Amazon-Deliveroo merger. CMA considered that Deliveroo would be likely to exit the market unless it received additional funding available through the transaction. However, the latest provisional report manifests that since Deliveroo has recovered financially, the FFD shall no longer be applicable. Notwithstanding, CMA upheld that Amazon’s investment in Deliveroo is not anti-competitive as the food delivery market was highly competitive and the stake of 16% invested by Amazon in Deliveroo would stimulate competition.
The burden of proving that the above-mentioned conditions were satisfied, rests with the enterprises involved. In the instant case, none of the parties argued on these lines, given the high standards of its applicability and CMA’s firm belief that there was no possibility of Footasylum exiting the market, absent the transaction. Current circumstances had no effect on CMA’s policy, wherein they maintained their pre-COVID criteria for the application of FFD, with no relaxations provided in relation to the stringent parameters. Despite the fact that Footasylum had experienced trading difficulties prior to its acquisition by JD and issued three profit warnings in 2018/19, it would not have been considered as a ‘failing firm’ in CMA’s investigation.
In the counterfactual, it may be argued that while Footasylum did not qualify as a ‘failing firm,’ it would be a materially diminished competitor, absent the deal. CMA recognised this approach recently, in its findings relating to Bottomline’s purchase of Experian Payments Gateway (EPG). Initially, CMA expressed its concerns over the merger impacting competition. However, after an in-depth analysis, it concluded that such was not the case-given that EPG was no longer a strong force in the market. Further, following the merger, there were enough companies, which were competing with Bottomline for customers. However, CMA did not adopt a similar approach in this case.
- Reduction of competitive pressure not necessarily a ground for blocking mergers
The EU General Court (EU Court or Court) recently overturned the decision of the European Commission (EC) to block the acquisition of O2 by Hutchinson 3G UK (Hutchinson). EC, believed that a merger between two dominant competitors shall lessen the competition and shall be detrimental for consumers because of inter alia increased prices, lower quality of service and discounts. EC also believed that the proposed acquisition would result in lessening of one major competitor in an already concentrated market, similar to the rationale of CMA in recent cases.
Notwithstanding, the Court ruled that the mere reduction of one competitor and proving that O2 and Hutchinson were competitors could not be an isolated ground for blocking a merger. The evidence should corroborate with a ‘sufficiently high degree of probability’ that the merger between two competitors would actually lead to hurting consumers and raised prices. The Court acknowledged the presence of several ‘virtual’ operators on the UK mobile telephony retail market, in addition to other market competitors. Therefore, the elimination of one market player does not necessarily affect the prices. The CMA failed to consider the aforementioned factor in the JD-Footasylum case.
The applicability of EU precedents is in lines with the Act, which specifies that UK’s competition law should not be inconsistent with the decisions of EU courts. Furthermore, pursuant to section 60(4)(a) of the act, the decisions of EU courts are also applicable on CMA, which implies that this decision would undoubtedly impact merger regulations in UK and all other EU nations.
- Changing paradigms of CMA’s Regulatory Approach
Amidst the pandemic, most EU nations including the UK, have introduced amendments to relax their competition laws, allowing collaboration between competitors in healthcare, groceries and ferry services for the benefit of consumers. While, the competition policy has been relaxed in some sectors, the CMA has lately shown a tendency to be an aggressive anti-trust enforcer for other commercial sectors, following years of criticism for its ‘leniency’ in tackling anti-competitive transactions.
Notwithstanding the impact of the EU court ruling, CMA has recently frustrated the highest share of deals, worldwide. Fifteen cases were referred for a phase-II investigation, an in-depth probe, from 10 in the previous year. JD-Footasylum case is only one such instance of CMA’s heavy-handed regulatory approach in a variety of sectors, which could be substantiated through few of the many recent examples:
- Sabre-Farelogix Merger: Recently, CMA blocked the Sabre-Farelogix merger in the air travel sector.The CMA’s order circumvented the decision of the District court of Delaware in USA, which approved the merger. CMA believed that since Farelogix had a considerable technological contribution to British airlines, it had the jurisdiction to review this transaction. Similar to the JD-Footasylum case, CMA continued its interventionist policy despite the impact of the pandemic on the travel industry.
- Sainsbury PLC- Asda Group merger: The CMA, in 2019 citing its competition concerns about undesirable impact on consumers, blocked the merger between these two entities.
- In Ecolab/Holchem merger: The CMA blocked a completed merger. The parties’ combined market share was below 40%, however, CMA concluded that the transaction would reduce competition in the market for the supply of cleaning products. CMA remained averted to Ecolab’s proposed remedy to transfer some customers and assets to a rival. Instead, it ordered Ecolab to divest at least 90% of Holchem.
- Legal recourse against the decisions of CMA:
CMA’s stringent regulatory approach has often led to the resentment among the involved parties. Parties dissatisfied with the decisions of CMA have the right to appeal to the CAT under section 46(1) of the Act. However, the CAT follows a deferential standard for appeals, which accentuates the trouble in reversing decisions of CMA. This section will analyse the feasibility of the appeals to the CAT by JD and Sabre.
- Deferential standard for an appeal:
The CAT in its recent landmark judgment of Tobii AB (publ) v Competition Markets Authority (the judgment), laid down a deferential standard for checking the sustainability of appeals. The CAT can only overturn CMA’s decision on judicial review grounds, that is, ‘on grounds of illegality, irrationality and/or procedural unfairness’.This implies a significantly high threshold for overturning CMA’s decision. The CAT has stated that while the ground of irrationality can be widely construed, simple errors made by CMA in its decisions shall not constitute irrationality. Since the judgment sets out high-thresholds, which are not clearly defined, in most cases these are interpreted in favour of the heavy-handed regulatory policy of the CMA.
In both JD-Footasylum and Sabre-Farelogix cases, the grievance of the parties primarily emanates from CMA’s refusal to consider the impact of COVID-19 and the recent EU Court ruling, which is antithetical to CMA’s rationale. JD has brought its appeal on the grounds of ‘irrationality’, stating that the CMA has erred in law holding that COVID-19 would not materially affect Footasylum’s competitive constraint. Further, in the Sabre-Farelogx case the CAT would be left to review whether CMA prima facie had the jurisdiction to block the merger.
CMA’s report demonstrates its ingenuity towards enforcing consumer-welfare, in considering a large array of evidence, issues and placing due reliance on consumer opinion and surveys. Although the report is very comprehensive, CMA has failed to reason their approach at several instances, as discussed above. These factors riddle the investigation with inconsistencies.
The CMA has been a stringent anti-trust enforcer and its broader actions to block mergers has displayed its interventionist approach. The CMA’s decision to provisionally clear the Amazon-Deliveroo merger not only ensured a fresh lease of life for Deliveroo, but it was also a refreshing break for other industry players. However, the CMA’s returning interventionist approach in the JD-Footasylum case is likely to again dissuade retailers looking for acquisition options. This may indicate tougher times for other pandemic-hit businesses.
COVID-19 has greatly altered consumer behaviour and their shopping tendencies, resulting in losses for revenue for brick and mortar retailers. Thus, adopting an increasingly interventionist approach, may affect market morale and consequently compromise industry standards. The CMA’s role also encompasses suggesting remedies to address the identified harm that is likely to result from the merger, with due consideration to how the remedy changes the competitive dynamics of the market and the incentives of the merging parties post-remedy. There exists only a thin line of difference between a pro-active and an aggressive enforcer. Sustaining a competitive market requires harmony between all the stakeholders- consumers, industry players and the competition authorities.
 Third-Year student of B.A. LL.B (Hons.) at the Rajiv Gandhi National University of Law,
 Fourth-Year student of B.A. LL.B (Hons.) at the Rajiv Gandhi National University of Law.
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