UNITED KINGDOM

Get in contact or get a price estimation from our partner in United Kingdom Get in contact
Content last updated: 29-08-2019

Choose the type of information you seek

  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Yes. The UK is currently a member of the EU, although it is currently in process of withdrawing. If withdrawal takes place without the UK having entered into an agreement with the EU that provides for a transitional period within which EU law will continue to apply, that could have implications for some transactions (see Section 1.1.3 below).

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

If a transaction meets the thresholds for notification under the EU Merger Regulation, it will not be reviewable in the UK, subject to the possibility of referral of the transaction from the European Commission to the UK Competition and Markets Authority. If the UK withdraws from the EU without the UK having entered into an agreement with the EU that provides for a transitional period within which EU law will continue to apply, transactions will become reviewable in the UK even if they meet the thresholds for notification under the EU Merger Regulation, unless a clearance decision has been issued by the European Commission on or before the date of withdrawal.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Voluntary. However, if the parties choose not to file, the UK Competition and Markets Authority can call the transaction in for review at any time up to four months from the date of completion of the transaction, or from the date on which facts about the transaction became public (e.g. when it was announced, or when it received significant press coverage in the national or trade press), whichever is the later. Completed transactions that are called in are invariably subject to onerous hold separate obligations during the review period.

2.2 Suspensory effect

2.2.1  Must completion of the transaction await clearance by the relevant authorities?

There is no automatic prohibition on closing or implementation of the transaction prior to clearance, unless a Phase 2 investigation is opened, at which point a prohibition on closing does become applicable. However, the UK Competition and Markets Authority can prohibit closing during Phase 1 on an ad hoc basis. To date, it has done so only in one case, where the transaction gave rise to national security considerations.  Transactions that are closed prior to clearance are invariably subject to onerous hold separate obligations if they are called in for review by the UK Competition and Markets Authority.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

A transaction is caught by the merger control rules if it results in two or more businesses ceasing to be distinct. Businesses will cease to be distinct if they are brought under common ownership or control.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

Both full function and non-full function joint ventures can be reviewed. However, as the jurisdictional thresholds require the target to have sales/market share in the UK, "greenfield" joint ventures (to which the parties are not contributing an existing business or business assets) are not reviewable.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

There are three distinct stages of control:

a) acquisition of a legal, controlling interest in the target. This will be the case where, for example, there is an acquisition of all, or the majority of, the shares in the target;

b) acquisition of an ability to control the policy (i.e. the competitive conduct) of the target. This will be the case where there is de facto control, arising in the absence of a legal interest conferring ownership and/or controlling voting rights; and

c) acquisition of an ability to exercise "material influence" over a target (see below).

An acquisition which causes the purchaser to move from one stage of control to a higher stage of control will be reviewable by the UK Competition and Markets Authority irrespective of whether a previous acquisition has already been reviewed.

An acquisition will be reviewable if it confers, at a minimum, the ability to exercise "material influence" over the competitive conduct of the target. This is a lower threshold than the "decisive influence" test under the EU Merger Regulation. As a general rule, a shareholding of more than 25% is likely to be viewed as giving rise to material influence, and shareholdings of as low as 10-15% (with no board representation or other governance rights) might be viewed as conferring material influence, depending on the circumstances.

For example, an acquisition by BSkyB of a 17.9% interest in ITV was found to have satisfied the material influence test. However, in practice the UK Competition and Markets Authority is unlikely to exercise jurisdiction over an acquisition resulting in such a low shareholding unless the transaction gives rise to substantial potential competition concerns.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Acquisitions of minority or other interests that do not lead to an acquisition of material influence do not fall within the UK merger control rules and cannot be reviewed by the UK Competition and Markets Authority.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1?

Under the UK merger control regime, only the turnover of the target (excluding the seller) is relevant for assessing whether the turnover threshold is met.

For a merger, the target's turnover will be taken to be that of the merging party with the lowest UK turnover or, where more than two parties merge, their total combined turnover minus that of the party with the largest UK turnover. For a joint venture, it will be the sum of the turnover of all businesses that are contributed to the joint venture.

The target is taken to include all businesses over which it exercises legal or de facto control (see Section 1.3.1 above).  If the relevant interest confers only material influence, the UK Competition and Markets Authority has a discretion to include the turnover of the business in which the interest is held.

The share of supply test should be assessed by reference to the shares of supply of all of the undertakings that cease to be distinct, including their respective corporate groups. In the case of a joint venture or acquisition of joint control, activities of parent companies that are outside the scope of the activities of the jointly controlled venture are not taken into account.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

The turnover test is assessed by reference to the UK turnover of the target in the financial year preceding the date of closing or, if closing has not taken place, the date of opening of a Phase 2 investigation. The share of supply test is assessed on the basis of the market shares of the undertakings concerned on the date of a decision to open a Phase 2 investigation. 

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

A transaction that does not meet the thresholds for notification under the EU Merger Regulation can be reviewed by the UK Competition and Markets Authority (and thus may be notified) if:

a) the target's UK turnover exceeds GBP 70 million; or

b) the businesses which cease to be distinct will together supply or acquire at least 25% of a particular category or type of goods or services of any kind in the UK, or in a substantial part of the UK. The merger must result in an increment to the share of supply or purchases and the resulting share must be at least 25%., i.e. the target and acquirer must both supply or acquire goods or services of a similar kind in the UK. The UK Competition and Markets Authority has a broad discretion as to the category of goods or services that it uses as the frame of reference for assessing whether the share of supply test is met, and that category may be wider than the relevant economic product market to which the goods or services belong.

The UK Competition and Markets Authority's jurisdiction to review a completed merger also has a temporal element. The UK Competition and Markets Authority can open a Phase 2 investigation at any time up to four months from the date of completion of the transaction, or from the date on which facts about the transaction became public (e.g. when it was announced, or when it received significant press coverage in the national or trade press), whichever is the later.

Lower thresholds apply if the target has activities in certain sectors (see Section 2.4.1 below).

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

For the turnover threshold, only the target's turnover is relevant. 

The share of supply threshold can only be met if both parties supply similar products or services in the UK, unless the target has activities in certain sensitive sectors (see Section 2.4.1 below) in which case the share of supply test can be met by the target alone.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

No.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

The following transactions can be subject to an investigation by the UK Competition and Markets Authority at the request of a government minister – the Secretary of State for Business, Energy and Industrial Strategy – even if they fall below the thresholds described in Section 2.3.1 above and 2.4.1 below:

a) government defence contractors; and

b) newspaper publishers or broadcasters, where one of the parties to the transaction supplies or provides at least 25% of the newspapers of a particular type, or 25% of the broadcasting of any description (as the case may be), in the UK or a substantial part of the UK.

The investigation will be into a public interest consideration specified by the Secretary of State, with whom the final decision on those considerations rests. The UK Competition and Markets Authority has no jurisdiction to investigate these mergers on competition grounds unless the 'normal' jurisdictional thresholds are met.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

Lower jurisdictional thresholds apply to qualifying transactions involving targets with any of the following activities, anywhere in the world:

a) Military / dual use products or services, including: (i) developing or producing 'restricted goods', i.e. goods, software or information specified in Schedules 2 and 3 to the Export Control Order 2008, the Schedule to the Export of Radioactive Sources (Control) Order 2006 or Annex I to Regulation (EC) 428/2009, but excluding items which are prohibited from being exported or transferred to one country only; or (ii) holding information (e.g. in software, blueprints, manuals, diagrams and designs) that can be used in connection with the development or production of restricted goods and is responsible for achieving or exceeding the performance levels, characteristics or functions of the restricted goods that are specified in the legislation referred to above.

b) CPUs, including: (i) owning, creating or supplying IP (including know how) relating to the functional capability of CPUs, the instruction set architecture for such units or computer code that provides low level control for such units; or (ii) designing, maintaining or providing support for the secure provisioning or management of roots of trust of CPUs, or computer code that provides low level control for such units. “Roots of trust” means hardware, firmware, or software components that are inherently trusted to perform critical security functions (e.g. cryptographic key material that can identify a 'bound' device or verify a digital signature to authenticate a remote entity).

c) Quantum technologies, including research into the following technologies: quantum computing, simulation, imaging, sensing, timing, navigation, communications or resistant cryptography (the legislation includes definitions of each of these technologies), as well as developing or producing anything designed for use in such technologies or supplying services employing such technologies.

For these transactions, the thresholds for UK Competition and Markets Authority jurisdiction are met if the target has:

a) a share of the supply in the UK of the relevant products or services described above of 25% or more. Unlike the generally applicable thresholds, this test will be met even if the purchaser has no overlapping activities in the UK; or

b) turnover in the UK of GBP 1 million or more - in any products or services, not just those listed above.

2.4.2 Are any such schemes mandatory or voluntary?

Voluntary.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions meeting the above thresholds are reviewable by the UK Competition and Markets Authority regardless of whether the undertakings concerned are domiciled outside of the UK. 

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

Turnover is calculated broadly in the same way as it is for the purpose of the EU Merger Regulation, i.e. sales to third parties in the most recent financial year of goods and services, net of sales rebates, discounts and turnover-related taxes (such as VAT) and adjusted to take account fully of acquisitions and disposals of businesses.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

The UK Competition and Markets Authority's guidance on jurisdiction and procedure is available at:

https://www.gov.uk/government/publications/mergers-guidance-on-the-cmas-jurisdiction-and-procedure

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover should be based on the latest financial year for the target.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments should be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See Section 2.1.1 above. The target is taken to include all businesses over which it exercises legal or de facto control (see Section 1.3.1 above). If the relevant interest confers only material influence, the UK Competition and Markets Authority has a discretion to include the turnover of the business in which the interest is held.

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover is not included in the target's group turnover, irrespective of whether it is retaining an interest in the target, post-transaction.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

For the share of supply test, the UK Competition and Markets Authority has a broad discretion as to the category of goods or services that it uses as the frame of reference for assessing whether the test is met. In particular, the UK Competition and Markets Authority will not – for the purposes of assessing whether it has jurisdiction – carry out a detailed assessment of the relevant economic market. Rather, it will consider the scope of products or services which appear to be broadly comparable, and potentially substitutable, with the products or services of the merging parties. That category may be considerably wider than the proper relevant economic product market to which the goods or services belong and can include captive (intra-group) sales. As regards the geographic area that is used as the frame of reference for the share of supply test, this may be national, regional or local, depending on the circumstances (again, the UK Competition and Markets Authority has a broad discretion).

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for investment funds; state-owned undertakings; financial institutions and insurance undertakings, which can be found in the UK Competition and Markets Authority's jurisdictional guidance (see Section 3.1.2 above).

3.7.2 Does any exemptions apply?

Not applicable. Filing is voluntary.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

As there is no penalty for not filing, no party has a legal responsibility to file. However, the usual practice is for the acquiring party to file, as it will be responsible for paying the filing fee. Where two parties are merging or forming a joint venture, it is usually the case that both file jointly.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

1.2.2 Are there any sanctions for not filing within the deadlines?

No.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Transactions may be notified even if the parties have not yet signed a sale and purchase agreement, provided the parties can demonstrate a good faith intention to proceed with the transaction, by reference to, for example, adequate financing, heads of agreement or similar, or evidence of board level consideration.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

Yes.  Fees vary according to the value of the UK turnover of the acquired enterprise:

GBP 40,000, where the UK turnover of the target is GBP 20 million or less:

GBP 80,000, if the target's UK turnover is over GBP 20 million but not over GBP 70 million; and

GBP 120,000, where the UK turnover of the target exceeds GBP 70 million.

GBP 160,000, where the UK turnover of the target exceeds GBP 120 million.

The UK Competition and Markets Authority will require payment of a filing fee where a merger is notified to it or where it carries out an 'own initiative' investigation into a transaction that has not been notified, unless it concludes that it did not have jurisdiction to review the transaction. For mergers that are not notified to the UK Competition and Markets Authority (i.e. where the it has commenced a review on its own initiative) no fee is payable if the transaction involves the acquisition of an interest which confers only material influence, i.e. falling short of a 'controlling interest'.

1.4.2 When must the filing fee must be paid?

The fee is payable when the UK Competition and Markets Authority (or, if applicable, the Secretary of State) publishes its Phase 1 decision.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The UK Competition and Markets Authority publishes a non-confidential notice on its website and on the government's Regulatory News Service of the fact that it has commenced an investigation into a transaction and is inviting third parties to comment.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The UK Competition and Markets Authority will publish a press release following the adoption of a decision. In general, it will abstain from commenting on active cases in the media.

1.5.3 Will third parties be able to review the notification?

The notification can be published by the UK Competition and Markets Authority, but this is not standard practice. The UK Competition and Markets Authority redacts confidential information from all documents that it publishes.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

There are no formal mechanisms for shortening the review period. However, the UK Competition and Markets Authority may be prepared to give early clearance in cases where no competition concerns arise and the parties can demonstrate a credible and urgent need for early clearance.

In addition, if a transaction gives rise to complex issues such that a Phase 2 investigation is likely, the UK Competition and Markets Authority may exceptionally, at the parties' request, agree to make a referral on an accelerated timetable, if there is sufficient evidence available to meet the UK Competition and Markets Authority’s statutory threshold for reference.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

If a merger is not notified to the UK Competition and Markets Authority, it may be identified by the UK Competition and Markets Authority 's mergers intelligence unit as potentially meriting an investigation, in which case the UK Competition and Markets Authority will send the parties an enquiry letter requesting information to allow the UK Competition and Markets Authority to assess whether to "call in" the transaction for an own-initiative investigation. It is possible to consult with the mergers intelligence unit to obtain an informal indication as to whether a transaction is likely to be called in for review.

The clock starts running on the Phase 1 investigation on the date on which the UK Competition and Markets Authority accepts that the merger filing is complete or (for 'own initiative' investigations of mergers that have not been notified) on the date on which the UK Competition and Markets Authority determines it has sufficient information to commence its review. This is typically the same information that would have been required had the parties submitted a filing. If the merger has completed, the UK Competition and Markets Authority will impose an interim order requiring the buyer to operate the target business and its existing business separately and independently.

During the Phase 1 investigation, the case team will typically send questionnaires to the largest customers, competitors and suppliers of the notifying parties. It will also publish a notice on its website and the government's regulatory news service inviting third parties to comment within a specified period (typically 10 working days).

As part of the investigation, the case team may also send requests for information, including engaging in discussions and "state of play" meetings with the notifying parties. For cases raising more complex issues, the UK Competition and Markets Authority will send the parties an "issues letter" stating the core arguments in favour of a Phase 2 investigation and inviting the parties to respond in writing and to attend an "issues meeting" to discuss those arguments.

If the UK Competition and Markets Authority considers that the there is a realistic prospect that the transaction may give rise to a substantial lessening of competition (SLC) it will issue a reasoned decision to that effect to the parties, which is subsequently published on its website. The merging parties can then decide to offer remedies to avoid a Phase 2 investigation. If the UK Competition and Markets Authority considers that there is no realistic prospect of an SLC, it will issue a reasoned unconditional clearance decision.

If a Phase 2 investigation is initiated, an "inquiry group" will be appointed to oversee and decide on the Phase 2 investigation and a Phase 2 opening letter will be sent to the parties along with an initial request for information. Members of the inquiry group are drawn from the UK Competition and Markets Authority 's panel of independent experts, who come from a variety of backgrounds, including law, economics, accountancy and business.

The inquiry group, assisted by UK Competition and Markets Authority staff, will invite third party submissions, send questionnaires, visit a relevant business site of the parties, conduct any appropriate surveys, and hold hearings with the parties and third parties. At various stages it will give the merging parties the opportunity to comment on the accuracy of evidence that the UK Competition and Markets Authority has gathered and working papers that it has prepared.

Around 4-6 weeks into the Phase 2 investigation the UK Competition and Markets Authority will typically publish an issues statement setting out the live issues in the investigation for comment. Around 15 weeks into the investigation it will publish a notice of provisional findings and (if relevant) a notice of possible remedies for any competition concerns that have been provisionally identified. It may then conduct hearings to receive additional evidence on the provisional findings and remedies proposals.

The notifying parties can then either submit remedies that meet the UK Competition and Markets Authority 's concerns in order to get a conditional clearance decision, withdraw the notification or receive a prohibition decision.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

In general, all merger procedures before the UK Competition and Markets Authority are initiated by a pre-notification period. This pre-notification period may involve discussions with the UK Competition and Markets Authority about the case and timing; telephone and/or physical meetings; submission of a draft notification; fact-finding exercises by the UK Competition and Markets Authority; requests for additional information and documents; etc. 

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable. Filing is voluntary.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Phase 1:

The UK Competition and Markets Authority is required to complete its Phase 1 review within 40 working days. This runs from:

a) in the case of notified mergers, the date on which the UK Competition and Markets Authority confirms that the filing form is complete (which it will typically do within 5 working days of the date on which the notice is submitted); or

b) in the case of unnotified mergers (i.e. where the UK Competition and Markets Authority decides to review a transaction on its own initiative), the date on which the UK Competition and Markets Authority informs the parties that it has sufficient information to commence its first phase investigation.

At the end of the 40 working day Phase I period the UK Competition and Markets Authority must decide whether the transaction risks giving rise to a substantial lessening of competition (SLC) and should therefore be subject to a Phase 2 investigation, unless remedies are agreed.   

If the UK Competition and Markets Authority decides that the transaction does risk giving rise to an SLC, the parties will have up to five working days after the UK Competition and Markets Authority has informed the parties of its decision to offer remedies to avoid a Phase 2 investigation. In practice, it is possible to commence a dialogue on remedies at any stage in the process, or even before the UK Competition and Markets Authority begins its investigation. If the parties offer remedies, the UK Competition and Markets Authority will have up to 10 working days from the SLC decision within which to decide whether the offered remedies merit further negotiation (if it considers that they do not, it will open the Phase 2 investigation). The UK Competition and Markets Authority will then have up to 50 working days from the date of the SLC decision within which to negotiate, consult on, and finalise the remedies. This period can be extended to 90 working days if there are 'special reasons' (e.g. if an up-front buyer is required).

Phase 2

Where a Phase 2 investigation is opened, the UK Competition and Markets Authority must publish its report within 24 weeks from the date of reference. If it proposes to impose remedies as a condition of clearance, it will have an additional period of 12 weeks (which can be extended by 6 weeks) to implement those remedies.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The Phase 1 and Phase 2 periods may be extended in the following circumstances:

a) where the parties fail to provide information to the UK Competition and Markets Authority by the deadline specified in a request for information, the time period is suspended until the parties provide such information;

b) if the Secretary of State serves notice that a relevant public interest should be considered, the UK Competition and Markets Authority can extend the Phase 1 period for its review by 20 working days. (The Secretary of State, however, is not subject to any specified binding deadline for his or her decision as to whether a Phase 2 investigation should be opened on public interest grounds.);

c) if the UK Competition and Markets Authority asks the European Commission to review the merger under Article 22 of the EU Merger Regulation; or

d) the Phase 2 period can be extended by a further eight weeks if there are "special reasons" to do so.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

There is no statutory timetable/deadline for the pre-notification period and the duration of such period may vary from around a month to several months, depending on the complexity of the competition issues. 

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

There is a prescribed Merger Notice form which sets out the information that the UK Competition and Markets Authority will require. This is available at:

https://www.gov.uk/government/publications/mergers-forms-and-fee-information

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Documents that are submitted do not need to be legalised, certified or apostilled in any way.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

English.

3.4.2 Does translations have to be certified/legalized and apostilled?

Where supporting documentation is in a foreign language, the parties are encouraged to provide a translation (if translations are not supplied, the UK Competition and Markets Authority can ask for them).

Statutory timetable

Step Description Time
1

Pre-notification

In general, all merger procedures before the UK Competition and Markets Authority are initiated by a pre-notification period. This pre-notification period may involve discussions with the UK Competition and Markets Authority about the case and timing; telephone and/or physical meetings; submission of a draft notification; fact-finding exercises by the UK Competition and Markets Authority; requests for additional information and documents; etc.

There is no statutory timetable/deadline for the pre-notification period and the duration of such period may vary from around a month to several months, depending on the complexity of the competition issues.

2

Phase I

The clock starts running on the Phase 1 investigation on the date on which the UK Competition and Markets Authority accepts that the merger filing is complete or (for 'own initiative' investigations of mergers that have not been notified) on the date on which the UK Competition and Markets Authority determines it has sufficient information to commence its review. This is typically the same information that would have been required had the parties submitted a filing. If the merger has completed, the UK Competition and Markets Authority will impose an interim order requiring the buyer to operate the target business and its existing business separately and independently.

During the Phase 1 investigation, the case team will typically send questionnaires to the largest customers, competitors and suppliers of the notifying parties. It will also publish a notice on its website and the government's regulatory news service inviting third parties to comment within a specified period (typically 10 working days).

As part of the investigation, the case team may also send requests for information, including engaging in discussions and "state of play" meetings with the notifying parties. For cases raising more complex issues, the UK Competition and Markets Authority will send the parties an "issues letter" stating the core arguments in favour of a Phase 2 investigation and inviting the parties to respond in writing and to attend an "issues meeting" to discuss those arguments.

If the UK Competition and Markets Authority considers that the there is a realistic prospect that the transaction may give rise to a substantial lessening of competition (SLC) it will issue a reasoned decision to that effect to the parties, which is subsequently published on its website. The merging parties can then decide to offer remedies to avoid a Phase 2 investigation. If the UK Competition and Markets Authority considers that there is no realistic prospect of an SLC, it will issue a reasoned unconditional clearance decision.

The UK Competition and Markets Authority is required to complete its Phase 1 review within 40 working days. This runs from:

a) in the case of notified mergers, the date on which the UK Competition and Markets Authority confirms that the filing form is complete (which it will typically do within 5 working days of the date on which the notice is submitted); or

b) in the case of unnotified mergers (i.e. where the UK Competition and Markets Authority decides to review a transaction on its own initiative), the date on which the UK Competition and Markets Authority informs the parties that it has sufficient information to commence its first phase investigation.

At the end of the 40 working day Phase I period the UK Competition and Markets Authority must decide whether the transaction risks giving rise to a substantial lessening of competition (SLC) and should therefore be subject to a Phase 2 investigation, unless remedies are agreed.

If the UK Competition and Markets Authority decides that the transaction does risk giving rise to an SLC, the parties will have up to five working days after the UK Competition and Markets Authority has informed the parties of its decision to offer remedies to avoid a Phase 2 investigation. In practice, it is possible to commence a dialogue on remedies at any stage in the process, or even before the UK Competition and Markets Authority begins its investigation. If the parties offer remedies, the UK Competition and Markets Authority will have up to 10 working days from the SLC decision within which to decide whether the offered remedies merit further negotiation (if it considers that they do not, it will open the Phase 2 investigation). The UK Competition and Markets Authority will then have up to 50 working days from the date of the SLC decision within which to negotiate, consult on, and finalise the remedies. This period can be extended to 90 working days if there are 'special reasons' (e.g. if an up-front buyer is required).

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Phase II

If a Phase 2 investigation is initiated, an "inquiry group" will be appointed to oversee and decide on the Phase 2 investigation and a Phase 2 opening letter will be sent to the parties along with an initial request for information. Members of the inquiry group are drawn from the UK Competition and Markets Authority 's panel of independent experts, who come from a variety of backgrounds, including law, economics, accountancy and business.

The inquiry group, assisted by UK Competition and Markets Authority staff, will invite third party submissions, send questionnaires, visit a relevant business site of the parties, conduct any appropriate surveys, and hold hearings with the parties and third parties. At various stages it will give the merging parties the opportunity to comment on the accuracy of evidence that the UK Competition and Markets Authority has gathered and working papers that it has prepared.

Around 4-6 weeks into the Phase 2 investigation the UK Competition and Markets Authority will typically publish an issues statement setting out the live issues in the investigation for comment. Around 15 weeks into the investigation it will publish a notice of provisional findings and (if relevant) a notice of possible remedies for any competition concerns that have been provisionally identified. It may then conduct hearings to receive additional evidence on the provisional findings and remedies proposals. 

The notifying parties can then either submit remedies that meet the UK Competition and Markets Authority 's concerns in order to get a conditional clearance decision, withdraw the notification or receive a prohibition decision.

Where a Phase 2 investigation is opened, the UK Competition and Markets Authority must publish its report within 24 weeks from the date of reference. If it proposes to impose remedies as a condition of clearance, it will have an additional period of 12 weeks (which can be extended by 6 weeks) to implement those remedies.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 40 days + extensions
  • 24 weeks + extensions

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

It is often possible to agree a narrower scope of required supporting documents during pre-notification discussions with the UK Competition and Markets Authority.


Supporting documentation

This content was delivered
and last updated on 29-08-2019 by
Contact Person
Alex Nourry, Partner

Clifford Chance has provided all input about merger control in the United Kingdom.

Clifford Chance are one of the world's pre-eminent law firms, with significant depth and range of resources across five continents. As a single, fully integrated, global partnership, we pride ourselves on our approachable, collegial and team-based way of working.

We always strive to exceed the expectations of our clients, who include corporates from all the commercial and industrial sectors, governments, regulators, trade bodies and not-for-profit organisations. We provide them with the highest quality advice and legal insight, which combines the Firm's global standards with in-depth local expertise.

For more information about Clifford Chance and merger control in the United Kingdom, please contact our Partner directly.