UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
concerns, the merger notice requires extensive information on the transaction, the parties, mar - ket definition, competitive constraints, contact details and the potential effects of the transac - tion in the relevant industry context. Supporting Documents In addition to the merger notice, the CMA will expect parties to provide a substantial num - ber of supporting documents, including cop - ies of any related documents prepared by or for senior management and shareholders, as well as reports on prevailing market conditions. Although it is possible to agree on a narrower scope of required supporting documents dur - ing pre-notification discussions with the CMA, the CMA frequently requests a large volume of internal documents that it considers relevant to the potential theory(ies) of harm/competition concern(s). The CMA typically also requests such docu - ments where there has been no voluntary noti- fication and it has commenced a review of the transaction on its own initiative. Merger notices should be provided in English. 3.6 Penalties/Consequences of Incomplete Notification There are no penalties as such for providing an incomplete draft merger notice. However, a Phase 1 investigation will begin only once the CMA has confirmed that the merger notice is satisfactory. In order to obtain the information it requires, the CMA may issue a notice under Section 109 of the EA (a “Section 109 Notice”), which is, in essence, a mandatory information request. Issu - ing such a notice has the effect of compelling any person given the notice to provide documents,
witness evidence or information by a deadline set by the CMA. If a party fails to respond within the prescribed deadline, the CMA may extend the statutory timetable for its review. 3.7 Penalties/Consequences of Inaccurate or Misleading Information There are criminal and administrative penalties for providing inaccurate, false or misleading information and/or failing to comply with infor - mation requests. Criminal Penalties Intentionally altering, suppressing or destroy - ing any document required under a Section 109 Notice, or knowingly or recklessly providing false or misleading information to the CMA in connec - tion with any of its merger functions, are criminal offences, which could lead to up to two years’ imprisonment for an individual found guilty of such offences, as well as a fine. Administrative Penalties Failure to comply with the requirements of a Section 109 Notice, either intentionally or with - out reasonable excuse, may result in the CMA imposing administrative penalties of: • for individuals, a fixed amount (GBP30,000) and/or a daily rate (GBP 15,000); and • for businesses (following substantially increased fining powers brought in by the DMCCA), up to 1% of annual worldwide turnover and/or a daily penalty of up to 5% of daily worldwide turnover. 3.8 Review Process The CMA’s review process consists of two phas - es: a standard Phase 1 review and, if necessary, an in-depth Phase 2 investigation.
674 CHAMBERS.COM
Powered by FlippingBook