UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
Complying with interim measures In most cases, the CEOs of both parties will be required to provide the CMA with a compliance statement each fortnight, confirming that the relevant business has complied with the interim measures during the appropriate period. The CMA may also require, at the parties’ expense, the appointment of a monitoring trustee and/ or a hold-separate manager as an additional safeguard to oversee compliance with interim measures. Note that the CMA may grant derogations from interim measures, in order to consent to the par - ties taking actions that would otherwise be pro - hibited under such measures. The CMA expects full compliance with such interim measures and can impose a fine of up to 5% of the worldwide turnover of the relevant parties for non-compliance. Perhaps the most significant example of the CMA’s heightened enforcement activity in this area in recent years is its imposition of fines totalling GBP52 million upon Meta for various failures to comply with interim measures imposed in relation to its pro - posed acquisition of GIPHY. 2.13 Penalties for the Implementation of a Transaction Before Clearance See 2.12 Requirement for Clearance Before Implementation . 2.14 Exceptions to Suspensive Effect See 2.12 Requirement for Clearance Before Implementation . 2.15 Circumstances Where Implementation Before Clearance Is Permitted See 2.12 Requirement for Clearance Before Implementation .
sensitive information. However, in exceptional circumstances, the CMA can also prevent the completion of a transaction, if this in itself could result in pre-emptive action (eg, Gardner Aero- space/Northern Aerospace ). Initial Enforcement Orders (IEO) During Phase 1 investigations, the CMA can impose IEOs to prevent and/or unwind pre-emp - tive action in relation to completed and anticipat - ed transactions. An IEO will remain in force until clearance or remedial action is taken, unless varied, revoked or replaced. The CMA may also use its powers to unwind integration that has already taken place prior to the IEO coming into force. Each transaction under investigation will be assessed on a case-by-case basis. Generally, the CMA will use its standard IEO template (available on its website). Interim Orders (IO) Once a transaction has been referred for a Phase 2 investigation, the IEO will remain in force unless the CMA imposes an IO at Phase 2. The CMA may also accept interim undertakings from the parties at Phase 2. Restrictions imposed by the EA Separate to the imposition of interim measures, and where a transaction has been referred to Phase 2, the EA prevents the parties of an antici - pated transaction from acquiring any interest in shares in a company involved as a merging party in the investigation without the CMA’s consent. In completed transactions, the EA prevents the parties from completing any further matters in connection with the transaction without the CMA’s consent, including changes to ownership or control of the target business.
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