UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
3.10 Accelerated Procedure There is no official accelerated procedure under the UK merger control regime. However, parties may sub - mit a request to the CMA to fast-track its review from a Phase I investigation to either a consideration of UILs or a Phase II investigation; in the latter scenario, the 24-week Phase II deadline may be extended once, by a period of up to 11 weeks, if the CMA considers that there are special reasons to do so. If there are other timing constraints due to the fact that a transaction is subject to other regulatory pro - cedures (eg, filings in other jurisdictions), the parties may inform the CMA and request that it exercise its discretion to come to a decision earlier than the statu - tory deadline. Such requests will be assessed by the CMA on a case-by-case basis. In contrast, the informal briefing paper process is rapid – typically producing a response from the CMA within ten to 14 days. The substantive test for assessing a merger is whether it has resulted or may be expected to result in a “sub - stantial lessening of competition” (SLC) in one or more markets within the UK. • The CMA will consider “calling in” a transaction for a Phase I review if it considers that there is a reasonable chance that the threshold for a Phase II reference will be met, following further investiga - tion. • At the end of Phase I, the legal standard is met if the CMA forms a reasonable belief that there is a realistic prospect of an SLC in light of the relevant facts of the case. • At the end of Phase II, the legal standard is an assessment as to whether there is in fact an SLC, on the balance of probabilities (ie, an SLC is more likely than not). What constitutes “substantial” in the context of the SLC test will be determined by the CMA on a case-by- case basis. Notably, the CMA does not apply market 4. Substance of the Review 4.1 Substantive Test
If the notifying parties wish to participate in pre- notification discussions, the process is initiated by submitting a Case Team Allocation Form to the CMA (available on its website). The CMA will aim to allo - cate a case team within a reasonable timeframe. Upon allocation, the case team will review the draft merger notice and identify any additional information that it requires or considers necessary. This process may involve multiple rounds of questions to reach the stage of the merger notice being considered satisfac - tory. In some cases, the CMA may invite the merging parties to make early submissions on specific theories of harm that it is considering. As pre-notification is not part of the formal process, it has no fixed statutory timeline – and, in certain cases, can last for several months (and may vary significant - ly, depending on the nature and/or complexity of a given case). That being said, the CMA has recently introduced an informal “KPI”, under which it expects pre-notification to take no more than 40 working days from the submission of a full draft merger notice in most cases – although it should be noted that parties may (typically at the start of pre-notification discus - sions) opt out of this target. The case team will often wish to ensure that it has a thorough understanding of the markets and competitive issues involved in a transaction before the clock officially starts. Therefore, the CMA may begin informal market testing if the par - ties have already made the transaction public. Despite this, all pre-notification discussions are confidential. The CMA nevertheless tends to publish an invitation to comment on a transaction on its website before commencing the formal Phase I review. 3.9 Requests for Information During the Review Process In addition to the extensive information provided at the filing stage (see 3.5 Information Included in a Filing ), it is common for the CMA to request further informa - tion from the parties. These detailed requests may arise due to competition concerns raised by interested third parties in relation to the transaction or where complex issues require further investigation (eg, a transaction is referred for a Phase II review).
709 CHAMBERS.COM
Powered by FlippingBook