11
provide, in particular, regulation and market liberalisation as relevant factors to be taken into
account.
3.8 What the precedents cited in the Phase I Decision do not do, however, is take into account
events which were entirely unforeseeable at the time of the transaction. The unrelated
acquisition of Blinds2Go in 2016 is precisely such an unforeseeable event. In 2013, Hunter
Douglas was aware neither of Blinds2Go as an attractive investment opportunity
13
, nor of the
possibility of the later acquisition of Hillarys. Both of those acquisitions only became apparent
as possible and likely at the time that Hunter Douglas formulated its bids for those companies,
three and four years subsequent to the 2013 Transaction respectively.
3.9 The effect of the approach to the counterfactual in the Phase I Decision as regards the 2013
Transaction is to allow the CMA to look forward and consider the effect on competition resulting
from a combination of 247 and Blinds2Go in 2016
14
. However, the proper time at which to
conduct such an assessment was in 2016 in the context of the Blinds2Go acquisition. The
Blinds2Go acquisition was made public by Hunter Douglas, yet the CMA chose not to review
the transaction at the time. The CMA is not entitled to use either the 2013 or the 2019
Transactions as a proxy to review the acquisition of Blinds2Go.
3.10 Finally, the CMA relies on the OFT’s statement in Tesco/Brian Ford that “whilst Tesco was fully
entitled not to notify […], it effectively took the risk of developments in the analytical framework
applicable to this merger occurring between the time of the transaction completing and the time
of it subsequently becoming public”
15
. Yet this ignores the very crucial difference between the
2013 Transaction and Tesco/Brian Ford, namely that whilst the former was not a relevant
merger situation in 2013, meeting neither the turnover test, nor, on any basis, the share of
supply test, there was no question over jurisdiction at the time of Tesco’s completion of its
acquisition of Brian Ford. Tesco already had a share of supply of UK groceries in excess of
25% at the time and hence any accretion, however small, arising from the acquisition of Brian
Ford would satisfy the share of supply test. Tesco’s argument was more narrow – that even if
there was a relevant merger situation, the OFT would not have found any substantive concerns
based on the analytical framework adopted by it at the time.
3.11 By contrast, Hunter Douglas was not taking any merger risk by not notifying the 2013
Transaction as there was simply no relevant merger situation to notify
16
. The CMA is not
13
Hunter Douglas only became aware of the possibility of investment in Blinds2Go when it received an
information memorandum in summer 2015.
14
Note that at the time of the acquisition of Blinds2Go in 2016, Hunter Douglas acquired a 60% equity stake,
whilst it held 49% of the voting and economic rights in 247.
15
Phase I Decision, paragraph 83, citing Tesco/Brian Ford, paragraph 10.
16
See further the Parties’ Response to the Issues Letter at Phase I, section 5.