Appeal against HBOS/Lloyds TSB merger clearance
Notice of appeal (38 pages, 3.7M scanned PDF) to the Competition Appeal Tribunal by a specially-constituted Merger Action Group against Lord Mandelson's decision to clear the proposed HBOS / Lloyds TSB merger.
The grounds of appeal are expressed as:
- Unlawful fettering of discretion: because of media statements (that the merger would be cleared regardless) made at the time of the initial Government announcement of a new public interest ground.
- Wednesbury unreasonableness and error of law: over-reliance on the FSA's “inexpert competition views” that a stand-alone HBOS would not be an effective competitor, rather than on the OFT's competition analysis which found that a stand-alone HBOS would be a significant competitor. The minister's reliance on the FSA's views is said to be contrary to both reason and the rule in the Enterprise Act 2002 that the minister must accept the OFT's conclusions on competition issues. The FSA's views themselves are said to be based in part on a mistaken understanding of EC State aid law and policy.
- Breach of the EC law principle of proportionality, by “excluding other less anti-competitive outcomes” from consideration.
Update. An accelerated timetable has been set, with a CAT case management conference scheduled for Wednesday 3 December 2008, 2 pm. See http://www.catribunal.org.uk/.
Comment. The criticisms of the ministerial decision are well made in the notice of appeal, and the group has a good website. But newspaper reports on the action so far seem rather poorly informed. Franck.
For further information or advice please contact Franck Latrémolière.
Filed under CAT, DTI/BERR, Merger control.
