UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The CMA will not usually give a view in its merger decision as to whether a transaction-related restric - tion constitutes an ancillary restraint. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties play an important role throughout the CMA’s review process, and the CMA will actively seek third-party feedback at key stages of the review, including in the context of remedies (see 3.7 Review Process , 5.4 Negotiating Remedies With Authorities and 7.2 Contacting Third Parties ). Examples of how third parties may be involved in the review process include the following: • where merging parties have notified a transaction and it raises competition concerns, the CMA will typically contact businesses that the parties have identified in the notification as their main competi - tors, customers or suppliers; • where the CMA has decided to initiate its own investigation, it will consult any person likely to be impacted in a substantial way by its decision; • shortly before opening a Phase I review, the CMA will post an invitation to comment on its website; and • during a Phase II review, the CMA will usually pub - lish key documents (with confidential information excised) related to the transaction on its website, which third parties may be invited to comment on. 7.2 Contacting Third Parties See 7.1 Third-Party Rights . The CMA may request or invite information from third parties in writing or orally. In practice, this may take the form of questionnaires, telephone calls and/or online or in-person meetings.
In addition, the CMA may require third parties to pro - vide information or documents, or give evidence as a witness, by issuing a Section 109 Notice, which constitutes a mandatory request (see 3.6 Penalties/ Consequences of Incomplete Notification ). In the context of remedies, and following its provisional finding of an SLC, the CMA will invite comments from interested third parties on any proposed remedies (see 5.4 Negotiating Remedies With Authorities ). 7.3 Confidentiality The CMA has an obligation to protect the confiden - tiality of commercially sensitive information provided to it by the merging parties as well as interested third parties. However, the CMA is also required to pub - lish its decisions as well as the supporting reasons, which sometimes creates a trade-off between these two obligations. During its investigation, the CMA will actively publicise the transaction at issue so as to solicit views from interested third parties. Therefore, upon submitting a merger notice, parties are required to confirm that the transaction has been publicised (see 3.5 Information Included in a Filing ). With respect to documents published by the CMA in the context of an investigation, the parties may request that certain commercially sensitive informa - tion is kept confidential and excised from such docu - ments before publication. 7.4 Co-Operation With Other Jurisdictions The CMA generally seeks to co-operate with other competition authorities in multi-jurisdictional mergers. This co-operation may relate to substantive assess - ment of the transaction, the discussion of any poten - tial or actual remedies and, where appropriate, the gathering of information to facilitate co-ordinating cer - tain stages of the investigation timetables between the CMA and other competition authorities. However, the CMA maintains its independence as a decision-making authority uninfluenced by the deci - sions of other regulators. In particular, whilst generally speaking the CMA and European Commission have in recent years been relatively aligned in terms of their
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