UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
Penalties/Consequences of Inaccurate Notification There are criminal and administrative penalties for providing inaccurate, false or misleading information and/or failing to comply with information requests. Criminal penalties Intentionally altering, suppressing or destroying any document required under a Section 109 Notice, or knowingly or recklessly providing false or misleading information to the CMA in connection with any of its merger functions, are criminal offences, which could lead to up to two years’ imprisonment for an individual found guilty of such offences, as well as a fine. Administrative penalties Failure to comply with the requirements of a Section 109 Notice, either intentionally or without reasonable excuse, may result in the CMA imposing administra - tive penalties of: • for individuals, a fixed amount (GBP30,000) and/or a daily rate (GBP15,000); and • for businesses (following substantially increased fining powers brought in by the DMCCA), up to 1% of annual worldwide turnover and/or a daily penalty of up to 5% of daily worldwide turnover. 3.7 Review Process The CMA’s review process consists of two phases: a standard Phase I review and, if necessary, an in-depth Phase II investigation. Phase I A standard CMA Phase I review lasts up to 40 working days, running from the first working day following the CMA’s confirmation to the parties that it has received a complete merger notice or that it has sufficient infor - mation to begin an investigation. This timeline may be extended in certain circumstances, such as where the parties fail to respond to a Section 109 Notice within the prescribed deadline. During Phase I, the CMA will also solicit views from interested third parties (see 7.2 Contacting Third Par- ties ) and, separately, may receive spontaneous feed - back in response to its public announcement of the review.
At the end of Phase I, the CMA will decide whether to refer the transaction for a Phase II investigation. How - ever, as explained in more detail in 5.4 Negotiating Remedies With Authorities , if the parties offer rem - edies (so-called “undertakings in lieu of reference”, or UILs) to address any concerns identified by the CMA at Phase I (with a view to avoiding an in-depth, Phase II review), an additional period for negotiating and finalising such remedies may apply. Phase II The CMA has a statutory time period of up to 24 weeks to conclude a Phase II investigation. This dead - line may be extended once, by a period of up to eight weeks, if the CMA considers that there are special reasons to do so – or by up to 11 weeks, in fast- track cases (see 3.10 Accelerated Procedure ) (and, following changes brought in by the DMCCA, a Phase II review can also be extended beyond the statutory time period where the merging parties and the CMA agree to do so). The Phase II review clock can also be stopped if the parties fail to respond to a Section 109 Notice within the prescribed deadline. In addition, in cases where the CMA proposes to impose remedies on the parties or to clear the trans - action on condition that remedies are implemented, it will have a period of 12 weeks from the date of its Phase II Final Report within which to implement those remedies, potentially extendable by up to a further six weeks, in certain circumstances. On 25 April 2024, the CMA issued updated guidance outlining a revised process for Phase II investigations. However, these changes are procedural as opposed to substantive in nature. 3.8 Pre-Notification Discussions With Authorities Pre-notification discussions with the CMA are com - mon prior to the commencement of a Phase I review, where the parties are planning to formally notify the transaction. This reduces the risk of a notification being declared incomplete after submission (see 3.6 Penalties/Consequences of Incomplete or Inac- curate Notification ). It may also reduce the risk of a transaction being referred for a Phase II investigation.
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