UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
• Energy network mergers – CM190; • Retail mergers commentary – CMA62; and • Review of NHS mergers – CMA29. 1.3 Enforcement Authorities The CMA is the sole merger control authority in the UK (see 1.1 Merger Control Legislation ). There are no specific merger control provisions for other regulated utilities, such as telecom - munications, postal services, rail, airports or air traffic services (see 1.2 Legislation Relating to Particular Sectors ). That said, a transaction in these industries may require the modification of an operating licence or give rise to other issues falling within the competence of the relevant sectoral regulator. The CMA therefore works closely with sectoral regulators where merg - ers raise questions that fall within their sectoral competence or expertise. Note that the CMA no longer has jurisdiction to review mergers solely involving NHS foundation trusts, NHS trusts or a combination of these, as these are now assessed by NHS England under the Health and Care Act 2022. The UK is technically a voluntary (and non-sus - pensory) jurisdiction. However, it should more accurately be described as a “self-assessment” or even ”ignore at your own risk” regime. While merging parties are not obliged to notify a merger to the CMA (and there is thus no require - ment for merging parties to obtain clearance from the CMA before completing a transaction), the CMA has a duty to track merger activity in order to determine whether an unnotified merger 2. Jurisdiction 2.1 Notification
that falls within the CMA’s jurisdiction may raise potential substantive concerns. As such, the CMA’s mergers intelligence function not only receives complaints but also very actively scans for proposed or completed mergers to investi - gate on its own initiative. Therefore, the decision not to notify in cases where the CMA could investigate carries poten - tially significant risks – especially for the purchas - er. In addition to the typical legal/deal execu - tion, cost and timing implications of a thorough review by a sophisticated and well-resourced merger control authority, the CMA also has the power to issue interim orders, which prevent any action that may prejudice or impede its investi - gation (eg, integrating the merging businesses). If the CMA has reasonable grounds to believe that the parties to a completed merger are inte - grating their businesses, it can require that this integration is stopped and potentially unwound (see 2.2 Failure to Notify ). Accordingly, where a proposed transaction meets the relevant jurisdictional thresholds – and, more importantly, potentially gives rise to competition concerns that will very likely attract the CMA’s attention if unnotified – the purchaser is typically incentivised to file a formal merger notification with the CMA for reasons of legal certainty. Briefing Note The merging parties also have the option of sub - mitting a short “briefing note” (usually of around five pages) to the CMA’s mergers intelligence function. As a general rule, the CMA will consider a briefing note only after the parties have entered into the transaction agreement. In such a note, the merging parties explain why the transaction in question should not attract further CMA scru - tiny – ie, typically because:
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