Amec Foster Wheeler SA (Pty) Ltd v Competition Commission (VAR252MAR16) [2016] ZACT 59; [2016] 2 CPLR 897 (CT) (13 July 2016)

Amec Foster Wheeler SA (Pty) Ltd v Competition Commission (VAR252MAR16) [2016] ZACT 59; [2016] 2 CPLR 897 (CT) (13 July 2016)

The Tribunal held that the Commission, having reserved the right to amend its own conditions in the merger approval, retained jurisdiction to do so. The Tribunal clarified that its own jurisdiction to vary conditions arises only in specific circumstances, such as when a dispute exists or when an application is brought under section 16. In this case, the Commission did not oppose the variation and was satisfied with the reasons provided by the applicant, namely the adverse economic conditions and the merger-specific nature of the retrenchments. The Tribunal directed the Commission to issue amended conditions and specify the applicable date for their commencement.

Citation
[2016] ZACT 59
Parties
Applicant: Amec Foster Wheeler SA (Pty) Ltd; Respondent: Competition Commission
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
13 July 2016
Case Number
VAR252Mar16
Procedural Posture
Variation Application / Application for Variation of Merger Conditions Under Tribunal Rule 42
Outcome
Application for variation of merger conditions granted. The Commission was directed to issue amended conditions and stipulate the applicable date.
Judges
Norman Manoim, Andreas Wessels, Mondo Mazwai
Legal Topics
Merger Conditions, Variation of Conditions, Intermediate Merger, Jurisdiction of Competition Authorities
Competition Law Merger Conditions Variation of Conditions Intermediate Merger Jurisdiction of Competition Authorities

Case Brief

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Parties

Amec Foster Wheeler SA (Pty) Ltd

Applicant

Competition Commission

Respondent

Procedural Posture

Variation Application / Application for Variation of Merger Conditions Under Tribunal Rule 42

Legal Issues

  1. 1 Whether the Competition Tribunal has jurisdiction to vary merger conditions imposed by the Competition Commission in an intermediate merger.
  2. 2 Whether the Commission retains the power to amend its own conditions where the conditions expressly provide for variation.
  3. 3 Whether economic and market changes justify the variation of merger conditions prohibiting retrenchments.

Ratio Decidendi

The Tribunal held that the Commission, having reserved the right to amend its own conditions in the merger approval, retained jurisdiction to do so. The Tribunal clarified that its own jurisdiction to vary conditions arises only in specific circumstances, such as when a dispute exists or when an application is brought under section 16. In this case, the Commission did not oppose the variation and was satisfied with the reasons provided by the applicant, namely the adverse economic conditions and the merger-specific nature of the retrenchments. The Tribunal directed the Commission to issue amended conditions and specify the applicable date for their commencement.

Court Disposition

Application for variation of merger conditions granted. The Commission was directed to issue amended conditions and stipulate the applicable date.

Orders

  • The Competition Commission is directed to issue amended merger conditions reflecting the approved variation.
  • The Commission must specify the effective date for the amended conditions.