UK Law and Practice Contributed by: Becket McGrath and Marc Freedman, Van Bael & Bellis
merger control decision-making, there are still some notable relatively recent examples of divergence, such as: • Cargotec / Konecranes and Microsoft / Activi- sion , where the CMA took a more interventionist approach compared to the European Commission; and • Booking / eTraveli and Amazon / iRobot , where – in both cases – the European Commission challenged a transaction that the CMA had cleared uncondi - tionally at Phase I. As the CMA is not permitted to disclose the confi - dential information of businesses, it will typically ask merging parties to sign a confidentiality waiver before exchanging information relevant to the transaction with other competition authorities in relevant jurisdic - tions. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review A CMA merger decision (such as a decision to clear, refer or prohibit a transaction) can be reviewed on application to the UK Competition Appeal Tribunal (CAT) under Section 120 of the EA. Decisions impos - ing fines can also be appealed before the CAT. An appeal to the CAT can only be made on grounds of judicial review. Therefore, the CAT’s review will be limited to examining the lawfulness of the decision and not the merits of the case. The CAT may decide to either dismiss the application or quash the decision and refer the matter back to the CMA, in which case the CMA will be under a direction to reconsider and issue a new decision. 8.2 Typical Timeline for Appeals An application to the CAT must be made within four weeks of the date of the CMA’s decision. The CAT’s Guide to Proceedings states that it will typi - cally consider applications for review of merger deci - sions with a certain level of urgency. However, the CAT is not subject to a fixed statutory timetable within
which to deliver its judgment. In practice, the main hearing will generally take place within three months. A judgment of the CAT may be appealed on a point of law to the Court of Appeal of England and Wales (or, for Scottish cases, the Court of Session) within 14 days and with leave to appeal from either the CAT or the Court of Appeal. 8.3 Ability of Third Parties to Appeal Clearance Decisions Clearance decisions can be challenged by third par - ties who are aggrieved by the relevant decision of the CMA. Aggrieved third parties will typically be market com - petitors, but may extend to customers and interest groups. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements The NSI Act created a separate investment screening regime in the UK, which captures foreign direct invest - ment (FDI) in certain sectors with potential national security implications (see 1.2 Legislation Relating to Particular Sectors and 4.6 Non-Competition Issues ). While certain specified sectors are subject to manda - tory notification, transactions outside of those sectors may be voluntarily notified or called in for review if they pose a national security risk. Mandatory Notification The mandatory regime of the NSI Act applies to 17 sensitive sectors of the economy, such as artificial intelligence, data infrastructure, defence, energy, mili - tary and dual-use, and suppliers to emergency ser - vices and transport (the full list is accessible in the UK government’s guidance on how the rules apply to acquisitions). Qualifying transactions include: • transactions involving the acquisition of a 25% or more stake in an entity in a key sector; or
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