UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
their remedy proposals to address the concerns that have been identified. • Following the merging parties’ response to the Interim Report on Remedies, they may be invited to a final remedies call with the CMA, which is primarily intended to enable the CMA to clarify any aspects of the merger parties’ response that may be unclear. • In light of the constraints imposed by the CMA’s statutory timetable and the need to prepare and publish the final report setting out the inquiry group’s final decisions on the SLC and remedies, the CMA case team will indicate to the merging parties a deadline after which the inquiry group will not be able to take further submissions on rem- edies into account (or further modifications to their remedy proposal). • Following consultation on the Interim Report on Remedies and any further discussions between the CMA and the parties, the CMA will take a final decision on remedies, which will be published in the Phase II final report. • Following the final report, the CMA has 12 weeks to accept final undertakings, where offered by the parties, or to make a final order. The time period may be extended by up to six weeks if the CMA considers that there are special reasons for doing so. 5.5 Conditions and Timing for Divestitures The acquisition of a divestment by an “upfront buyer” will be subject to the CMA’s acceptance of UILs (at Phase I) or undertakings (at Phase II); see 5.4 Nego- tiating Remedies With Authorities . The process and timing regarding the divestment to a “non-upfront buyer” is slightly different but it still requires the parties to obtain the CMA’s approval of an appropriate purchaser, and to conclude a sales agree - ment with that purchaser. The length of time for the merging parties to achieve effective disposal of the agreed divestiture package to a non-upfront buyer (ie, the divestiture period) will depend on each individual case, but it will normally be for a maximum period of six months.
In determining the appropriate divestiture period, the CMA will seek to strike a balance between factors that favour a shorter duration (such as minimising asset risk and giving timely effect to the remedy) and those that favour a longer duration (such as the sourcing and selection of suitable purchasers and facilitating adequate due diligence). If no appropriate purchaser is found within the speci - fied time period, the CMA may appoint a monitoring trustee to sell the divestment business at no minimum price. If a case has been referred for a Phase II review or if interim measures or undertakings are in place, it is possible to complete a transaction while the divest - ment process is in progress, as long as the CMA con - sents to this. If any remedies or conditions are breached by the parties, the CMA can take enforcement measures by commencing civil proceedings. Affected third parties may also choose to commence proceedings, such as damages actions. 5.6 Issuance of Decisions The CMA will provide the formal, confidential version of its decision to the parties at Phase I and/or Phase II, typically very shortly before such decision is for - mally announced. Commercially sensitive information of third parties will be excised. The CMA will then, in due course, publish a formal, non-confidential version of its decision on its website, with commercially sensitive information of the parties involved excised. In addition, the CMA’s merger decision will be announced via the Regulatory News Service. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions See 2.5 Jurisdictional Thresholds and 2.8 Foreign- to-Foreign Transactions .
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