UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
2.14 Exceptions to Suspensive Effect See 2.12 Requirement for Clearance Before Imple- mentation . 2.15 Circumstances Where Implementation Before Clearance Is Permitted See 2.12 Requirement for Clearance Before Imple- mentation . 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification As notification is voluntary in the UK, there is no dead - line for notification. 3.2 Type of Agreement Required Prior to Notification There is no requirement to have a formal agreement in place prior to notification; a good-faith intention to proceed with the transaction is generally enough if it is sufficient to satisfy the CMA. However, with respect to submitting a briefing note to the CMA, generally speaking the parties will need to have entered into a signed transaction agreement in order for the CMA to take the matter under considera - tion (see 2.1 Notification ). 3.3 Filing Fees There is no fee for filing, but fees are payable in the event that a formal Phase I decision is issued – whether following a formal notification or own initiative investigations. These are based on the size of the UK turnover of the target in its financial year preceding the date of completion or the date of clearance (for anticipated transactions). Where payable, these fees are: • GBP40,000 if the target’s UK turnover is less than or equal to GBP20 million; • GBP80,000 if the target’s UK turnover exceeds GBP20 million but does not exceed GBP70 million; • GBP120,000 if the target’s UK turnover exceeds GBP70 million but does not exceed GBP120 mil - lion; or
Interim Orders (IO) Once a transaction has been referred for a Phase II investigation, parties are prohibited by statute from completing until the review is complete. Any IEO will remain in force unless the CMA imposes an IO at Phase II. The CMA may also accept interim undertak - Separate to the imposition of interim measures, and where a transaction has been referred to Phase II, the EA prevents the parties of an anticipated transaction from acquiring any interest in shares in a company involved as a merging party in the investigation with - out the CMA’s consent. In completed transactions, the EA prevents the parties from completing any further matters in connection with the transaction without the CMA’s consent, including changes to ownership or control of the target business. Complying with Interim Measures In most cases, an IEO will require the CEOs of both parties to provide the CMA with a signed compliance statement each fortnight, confirming that the relevant business has complied with the interim measures during the appropriate period. The CMA may also require, at the parties’ expense, the appointment of a monitoring trustee and/or a hold-separate manager as an additional safeguard to oversee compliance with interim measures. ings from the parties at Phase II. Restrictions Imposed by the EA The CMA expects full compliance with such interim measures and can impose a fine of up to 5% of the worldwide turnover of the relevant parties for non- compliance. Perhaps the most significant example of the CMA’s heightened enforcement activity in this area in recent years is its imposition of fines totalling GBP52 million upon Meta for various failures to com - ply with interim measures imposed in relation to its proposed acquisition of Giphy. 2.13 Penalties for the Implementation of a Transaction Before Clearance See 2.12 Requirement for Clearance Before Imple- mentation .
706 CHAMBERS.COM
Powered by FlippingBook