News & Events

MH & C Represent Kerry Group Plc on Win under Competition Act 2002

03 April 2009

Mason Hayes & Curran, scored a legal first in Ireland on Thursday (19 March) in advising Kerry Group plc, the largest Irish multinational food group on a successful challenge in the Irish High Court against the Irish Competition Authority’s decision to veto its acquisition of rival Breeo Foods Limited.

This was the first appeal to the High Court from a decision of the Competition Authority under the Competition Act 2002. 

The Competition Authority had initially found that the acquisition would cause a substantial lessening of competition in the markets for rashers, non- poultry cooked meats and processed cheese. 

The High Court accepted Kerry’s arguments that the decision was unfounded and annulled it. 

On cheese, the High Court found that the Competition Authority’s assessment of the product market was inadequate and unsound and that its conclusion was fundamentally flawed. 

One of the main aspects of the decision was the High Court acceptance of Kerry’s argument that the retail multiples had countervailing buyer power and that the Competition Authority had not correctly assessed this and had made a material and significant error in its appraisal of the existence of sufficient countervailing market power. 

In commenting on the judgment, partner Tony Burke said,

“The decision of the Irish High Court which runs to some one hundred pages is very much welcomed by Kerry Group plc which can now proceed to complete the transaction. 

The decision highlights the importance of proper product market definition. 

However, the discussion and finding of the countervailing market power which multiples enjoy will have significance and wide ranging effects for the analysis of competition in consumer products and for suppliers of those products both in terms of any merger notifications which they might file and in the assessment of matters such as abuse of dominant position.”

For further information, please read our Competition Law Update.

The Mason Hayes & Curran team in this case comprised competition specialists Tony Burke, Emma Keavney and John Kettle and litigation partner Ailbhe Gilvarry. The corporate team was led by partner David O’Donnell and partner Martin Kelleher.