The two firms are to apply for a judicial review of the Competition and Markets Authority’s (CMA) probe into their proposed tie-up, as they request more time to consider the evidence.
However, the watchdog has said it will defend its position in court, and is “not willing to compromise on the thoroughness or objectivity” of the investigation.
The application, which was lodged today with the Competition Appeal Tribunal, will request a review of the CMA’s timetable and process.
The supermarket chains said they have asked the CMA for an additional 11 working days over the festive period to respond to a large volume of material which has recently been provided to them. They argue that the current timetable does not give them or the CMA “sufficient time to provide and consider all the evidence, given the unprecedented scale and complexity of the case”.
In their joint statement, the retailers noted: “This is a case of unprecedented size and complexity and we have a responsibility to our customers and colleagues to ensure that we and the CMA have enough time to make and consider all the facts and evidence.
“This is not a decision we have taken lightly. It is about ensuring a thorough process and reasonable timetable. We remain confident in the case for merging the businesses and the significant customer benefits.”
A CMA spokesperson said: “Our first priority in this investigation has, and will continue to be, assessing if shoppers would face higher prices or a lower quality of service as a result of the merger and, if so, to prevent that from happening.
“We began to engage with the companies involved as soon as they announced their intention to merge at the end of April. Investigating any merger of this size requires assessing a large volume of material in a short timeframe, and it is not unusual for the companies involved to do this in the timelines we have been working to with Sainsbury’s and Asda.
“If we gave the companies the extra time they are now asking for, it would put our ability to complete the investigation by the required deadline at very serious risk.”