The UK Competition Appeal Tribunal confirms the Competition Authority’s broad approach to the share of supply test resulting in the decision to block the merger between two software suppliers in a first case where the cartelist’s fine is reduced due to implementing a compliance program (Sabre / Farelogix)

In its judgment of 21 May 2021 the Competition Appeal Tribunal (“CAT”) upheld the CMA’s approach in applying the share of supply test to assert jurisdiction over Sabre’s acquisition of Farelogix, (with the CMA ultimately prohibiting the transaction following an in-depth investigation). The CAT confirmed that the CMA has a broad discretion when applying the share of supply test and can use any criteria it considers appropriate in the circumstances of the case, in order to decide whether goods or services of the same description are supplied or acquired by the merging parties in the UK. Applying standard judicial review principles (i.e., assessing whether the CMA had proceeded rationally in its decision-making, rather than assessing the merits of the case) the CAT upheld the CMA’s