UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
the merging parties’ combined share of supply or purchase and to determine whether the combined share meets the 25% threshold. Notably, neither of the merging parties is required to realise any turnover in the UK in order to satisfy the Share of Supply Test (eg, Roche / Spark ). Furthermore, there is no de minimis increment in the share of supply or procurement (eg, Sabre / Farelogix ). Whilst this is accurate at the time of writing, it should be noted that – as part of a wider package of pro - posed refinements to the UK competition regime – in January 2026 the UK government announced plans to introduce exhaustive (rather than illustrative) criteria for the Share of Supply Test. In particular, under the current proposals the Share of Supply Test would be limited to a closed list of factors (value, cost, price, quantity, capacity and number of workers employed), thereby removing the current ability of the CMA to consider “some other criterion, of whatever nature”. This is unlikely materially to constrain the CMA’s dis - cretion in practice, given the flexibility of the listed factors. The outcome of the consultation is awaited at the time of writing. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds Linked Enterprises The CMA may consider other enterprises linked to the target when calculating the Turnover Test (see 2.5 Jurisdictional Thresholds ). Where enterprises (con - sisting of two or more businesses) are under common ownership or control, the applicable turnover will be calculated by adding together the applicable turnover of each business. For example, the turnover of any enterprise over which the target has control (meaning, at least, the ability to materially influence policy) will be included when determining the applicable turnover (see 2.4 Definition of “Control” ). Joint Ventures In the case of joint ventures, the CMA’s approach depends on whether the enterprises will remain under the same ownership or control. Where a 50:50 joint venture is formed, incorporating all assets and businesses from each enterprise, neither enterprise
will remain under the same ownership or control as before; therefore, the highest turnover of the enterpris - es would be excluded from determining the applicable turnover. In contrast, where the joint venture incor - porates assets and businesses in a particular area of activity, and the parent companies remain under the same ownership and control post-merger but cease to be distinct from the target business to which they have each contributed, the relevant turnover will be the sum of the turnover of each of the contributed enterprises, minus the turnover of the parent compa - nies. Where the joint venture involves the creation of a new “greenfield” company, without transferring any parts of an existing enterprise to it, UK merger control will not apply, unless it leads to a parent gaining con - trol or material influence over the other. Intra-Group Transactions In the case of intra-group transactions, the CMA’s approach depends on post-merger ownership and control. With enterprises that will remain under the same common ownership or common control post- merger, only external sales are to be taken into account when calculating the applicable turnover. However, the CMA has discretion, in certain cases, to take previously internal sales into account and attrib - ute an appropriate value to those sales, if needed. With enterprises that will cease to be under the same common ownership or common control post-merger, the CMA may assess the applicable turnover based on the amounts derived from previously internal trans - actions. Again, in this case, the CMA has discretion to attribute an appropriate value to such transactions if it believes that the turnover attributed is not reflective of open market value. 2.8 Foreign-to-Foreign Transactions The jurisdictional thresholds are based on the Turnover Test and the Share of Supply Test (see 2.5 Jurisdic- tional Thresholds ), which take account of the merging parties’ activities in the UK, irrespective of whether one or all of the merging parties have a local presence. Notably, the Share of Supply Test does not require the parties to generate turnover in the UK. Therefore, foreign-to-foreign transactions may be subject to UK merger control. It is notable in this context, however, that the CMA has recently expanded its “wait and see” policy, under which it has committed not to initiate
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