Published by the CMA yesterday (13 July) and dated 29 June, the letter from legal firm Cleary Gottlieb Steen & Hamilton was critical of confidential additional information provided to it in a meeting last month.
Within the letter, Cleary Gottlieb Steen & Hamilton says: “The CMA’s proposed decision and its reasoning has not been properly communicated, nor has the CMA carried out a proper consultation on its proposed decision, as it is required to do.”
The latest publication from the CMA further highlights how strongly Veolia is opposing the provisional ruling from the body, which last month postponed the deadline of a final decision by eight weeks to 11 September (see letsrecycle.com story).
Veolia has significant concerns
– Cleary Gottlieb Steen & Hamilton
Confidentiality
The letter was written in response to additional material disclosed by the CMA to Veolia’s advisers on 22 June, as part of a “confidentiality ring”. This allows parties in litigation to exchange confidential information relating to each other, and third parties, in a safe space.
The meeting took place between Veolia’s advisers and the CMA, with Veolia critical of the fact it was unable to attend.
The letter explained that the information shared in this ring “reinforced” Veolia’s view that “evidence in the provisional findings report did not support the CMA’s conclusions”.
Veolia’s advisers also said this additional information “is nowhere near sufficient to meet the CMA’s duty to consult with parties who may be affected by its decisions, nor its obligations to disclose the evidence on which it intends to rely.”
Concerns
Continuing their scathing attack, Veolia’s advisers said: “The additional material gives almost no meaningful insight into the submissions made by third parties, other than excerpts that have been specifically cited.”
The letter added: “The CMA has not disclosed the questions that were asked of third parties, their responses, nor any notes of meetings or hearings held with third parties.
“Veolia therefore has significant concerns that even the confidential version of the Provisional Findings fails to meet the CMA’s consultation obligations or protect its legitimate rights of defence.”
Information
The letter went on to criticise the fact the additional information was disclosed at an “extremely late stage of the process” and the fact it is “impossible at this point of the review process for the CMA to revise its evidence”.
Veolia’s advisers added that “it is virtually impossible for Veolia’s external advisers to comment on this without taking instructions from Veolia itself”, which could be solved by allowing one or more member of the Veolia team access to the information, subject to the same confidentiality-ring protections.
Local authority
The CMA has expressed concerns throughout about the impact the Suez deal could have on complex local authority contracts.
The letter claims that the additional information reveals that local authority feedback “does not represent current competitive conditions”.
It says the information disclosed the names of local authority customers who provided evidence, and although unable to comment in detail on these customers, it is possible to check when these local authorities last carried out a tendered exercise.
“This evidence is revealing,” the letter said. It added: “Many of the local authorities who provided feedback awarded contracts many years ago and/or their contracts do not expire for a number of years.”
Expansion
Veolia has looked to highlight throughout that there are a number of growing competitors able to challenge it throughout the industry.
According to the letter, the additional information “contains evidence of credible competitor expansion plans”. The advisers called on the CMA to explain “why it dismisses” this in its provisional ruling.
The advisers also claimed that the additional material demonstrates that the CMA has sought evidence from the wrong customers, but its reasoning was redacted for confidentiality.
Conclusion
Cleary Gottlieb Steen & Hamilton concluded the letter by saying the body “appears not to have considered whether disclosing the provisional findings report to external advisers is sufficient to discharge its consultation obligations”.
It added: “In any event, the additional material is limited in scope, provided at the last minute, and cannot be shared with anyone at Veolia.”
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