UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
Supporting Documents In addition to the merger notice, the CMA will expect parties to provide a substantial number of support - ing documents, including copies of any related docu - ments prepared by or for senior management and shareholders, as well as reports on prevailing market conditions. Although it is possible to agree on a nar - rower scope of required supporting documents dur - ing pre-notification discussions with the CMA, the CMA frequently requests a large volume of internal documents that it considers relevant to the potential theory(ies) of harm/competition concern(s). The CMA typically also requests such documents where there has been no voluntary notification and it has commenced a review of the transaction on its own initiative. Merger notices should be provided in English. Briefing Paper In contrast, a briefing paper (which should not be more than five pages long) need only cover the key aspects of a transaction, namely: the identity of the parties, an outline of the transaction, brief analysis of whether the CMA has jurisdiction to review and key reasons why the transaction does not raise competition concerns sufficient to justify investigation. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification Penalties/Consequences of Incomplete Notification There are no penalties as such for providing an incom - plete draft merger notice. However, a Phase I inves - tigation will begin only once the CMA has confirmed that the merger notice is satisfactory. In order to obtain the information it requires, the CMA may issue a notice under Section 109 of the EA (a “Section 109 Notice”), which is, in essence, a man - datory information request. Issuing such a notice has the effect of compelling any person given the notice to provide documents, witness evidence or informa - tion by a deadline set by the CMA. If a party fails to respond within the prescribed deadline, the CMA may extend the statutory timetable for its review.
• GBP160,000 if the target’s UK turnover is above GBP120 million. It is worth noting that there are limited exceptions where the merger filing fee is not applicable. If the CMA finds that the transaction does not qualify as a relevant merger situation, then no fee is payable. No fee is payable for submitting a briefing note. 3.4 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 purchaser to file, and thus bear responsibility for paying the filing fee. Where two parties are merging or forming a joint venture, it is usually the case that both file jointly. Briefing papers may be submitted by the purchaser or both parties. Formally notifying a transaction to the CMA requires completion of the CMA’s template merger notice (available on its website). The merger notice sets out the categories of information to be provided by the parties; the specific information that will be required depends on the relevant facts (eg, the activities of the parties and any horizontal overlaps). For the purposes of advancing pre-notification discus - sions, merging parties are encouraged to submit a draft notice to the CMA that includes any information the parties consider necessary for a Phase I investiga - tion, and providing brief explanations as to why any information requested but not provided is not relevant. During pre-notification discussions, it is common practice for the CMA to issue a number of requests for further information, with few or even no requests being sent during the investigation itself. 3.5 Information Included in a Filing Template Merger Notice and Draft Notice Given that the CMA typically reviews transactions that raise at least potential competition concerns, the merger notice requires extensive information on the transaction, the parties, market definition, competitive constraints, contact details and the potential effects of the transaction in the relevant industry context.
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