The UK Competition Commission (CC) has agreed to reconsider its
clearance decision in relation to the Ticketmaster/Live Nation
merger following a challenge lodged at the Competition Appeal
Tribunal (CAT).
This is the fourth time in the last year that the CC has been
forced to reconsider one of its decisions as a result of review
applications made to the CAT.
Live Nation is a promoter of live music events and an
owner/operator of live music venues. Ticketmaster is a ticket
agent, selling tickets on behalf of live music promoters and venue
operators. On 22 December 2009, the proposed merger between the
parties was cleared unconditionally by the CC. This was despite the
CC having provisionally concluded in October 2009 that the merger
may be expected substantially to lessen competition in the market
for live music ticket retailing. The CC's provisional view had been
that the merger would create an incentive for Live Nation to impede
the expansion of a potential new UK competitor in ticket retailing,
CTS Eventim (Eventim), with which it had recently reached an
agreement in relation to UK ticketing services. Submissions from
Eventim had been central to these provisional concerns. However,
the CC changed its view following representations from the parties
that Live Nation would not in fact have offered any support to
Eventim to become a successful UK ticket retailer.
In January 2010, Eventim challenged the CC's report, arguing that
it had been denied a fair hearing, and that the CC had made a
number of errors in its substantive assessment. While the CC denied
that its substantive analysis was flawed, it accepted that
Eventim's position was crucial to its assessment of the
transaction's effect on potential entry into the UK market. The CC
recognised that there were matters in its final report relating to
Eventim's position on which it had failed to consult Eventim and
that it could not be ruled out that Eventim's evidence would have
changed its assessment.
Although the CC agreed voluntarily to settle Eventim's challenge by
reconsidering its decision, it had to request the CAT to quash its
report, since the statutory period within which the CC must publish
its report had already expired. The CAT duly quashed the report on
11 February 2010. The CC has indicated that it will complete its
reconsideration within three months.
This case follows three previous successful challenges to CC
decisions within the last 12 months. The other cases related to the
market investigations into groceries, payment protection insurance
(PPI) and BAA airports services. For further details of the
groceries and PPI reversals, see our November 2009
newsletter. The CC has indicated that it intends to appeal the BAA decision to the Court of Appeal. In that case, the CAT
upheld BAA's claim that the CC's investigation was tainted by
"apparent bias" in that one of the CC panel members had
links with the owners of Manchester Airport, who were involved in
the investigation and were potential bidders for airport assets to
be divested by BAA.
The CAT's decision in relation to Ticketmaster/Live Nation is
reminiscent of the successful challenge to the Office of Fair
Trading's (OFT) 2005 decision in the Unichem case, where
the OFT was required to reconsider a merger clearance due to a
failure to consider evidence from a third party whose expected
behaviour was important to its findings.
Please click on the links below for the other articles in
the March 2010 competition newsletter
Contacts
Nigel Parr
T: +44 (0)20 7859 1763
E: nigel.parr@ashurst.com
Neil Cuninghame
T: +44 (0)20 7859 1147
E: neil.cuninghame@ashurst.com
Mats Johnsson
T: +46 (0)8 407 24 68
E: mats.johnsson@ashurst.com
This newsletter is not intended to be a comprehensive review of
all developments in the law and practice, or to cover all aspects
of those referred to. Readers should take legal advice before
applying the information contained in this publication to specific
issues or transactions.