UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation The Enterprise Act 2002, as amended by the Enter - prise and Regulatory Reform Act 2013 (EA) and the Digital Markets, Competition and Consumers Act 2024 (DMCCA), provides the legal basis for the UK merger control regime. The Competition and Markets Authority (CMA) is the primary competition regulator in the UK and is respon - sible for enforcing the UK merger control regime. The CMA has published a collection of guidance on its mergers work, which can be found on its website, including: • Mergers: Guidance on the CMA’s jurisdiction and procedure; • Merger Assessment Guidelines; • Mergers: Exceptions to the duty to refer and under - takings in lieu; • Merger remedies; • Merger notice forms; and • CMA’s mergers intelligence function. 1.2 Legislation Relating to Particular Sectors The National Security and Investment Act 2021 (the “NSI Act”) entered into force on 4 January 2022 and created a separate investment screening regime in the UK. The NSI Act gives the government powers to investigate transactions on the grounds of nation - al security (see 9.1 Legislation and Filing Require- ments ). In addition, under the EA, the secretary of state has the power to intervene in “public interest mergers” and “special public interest mergers”. “Public interest mergers” include transactions involving media enter - prises, the UK financial system, and public health emergencies, while “special public interest mergers” include transactions involving newspaper and broad - casting companies. Moreover, in certain circumstanc - es the secretary of state can intervene in foreign state newspaper mergers.
Although there is no separate sectoral merger control legislation, the CMA has published sector-specific merger-related guidance and commentary, including: • Water and sewerage mergers – CMA49; • Energy network mergers – CM190; • Retail mergers commentary – CMA62; and • Review of NHS mergers – CMA29. 1.3 Enforcement Authorities The CMA is the sole merger control authority in the UK (see 1.1 Merger Control Legislation ). There are no specific merger control provisions for other regulated utilities, such as telecommunications, postal services, rail, airports or air traffic services (see 1.2 Legislation Relating to Particular Sectors ). That said, a transaction in these industries may require the modification of an operating licence or give rise to other issues falling within the competence of the relevant sectoral regulator. The CMA therefore works closely with sectoral regulators where mergers raise questions that fall within their sectoral competence or expertise. Note that the CMA no longer has jurisdiction to review mergers solely involving NHS foundation trusts, NHS trusts or a combination of these, as these are now assessed by NHS England under the Health and Care Act 2022. The UK is technically a voluntary (and non-suspenso - ry) jurisdiction. However, it should more accurately be described as a “self-assessment” or even “ignore at your own risk” regime. While merging parties are not obliged to notify a merger to the CMA (and there is thus no requirement for merging parties to obtain clearance from the CMA before completing a transaction), the CMA has a duty to track merger activity in order to determine whether an unnotified merger that falls within the CMA’s juris - diction may raise potential substantive concerns in the UK. As such, the CMA’s mergers intelligence function 2. Jurisdiction 2.1 Notification
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