UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
Phase 1 A standard CMA Phase 1 review lasts up to 40 working days, running from the first working day following the CMA’s confirmation to the parties that it has received a complete merger notice or that it has sufficient information to begin an investigation. This timeline may be extended in certain circumstances, such as where the parties fail to respond to a Section 109 Notice within the prescribed deadline. During Phase 1, the CMA will also solicit views from interested third parties (see 7.2 Contact- ing Third Parties ) and, separately, may receive spontaneous feedback in response to its public announcement of the review. At the end of Phase 1, the CMA will decide whether to refer the transaction for a Phase 2 investigation. However, as explained in more detail in 5.4 Negotiating Remedies With Author- ities , if the parties offer remedies (so-called “undertakings in lieu”, or UILs) to address any concerns identified by the CMA at Phase 1 (with a view to avoiding an in-depth, Phase 2 review), an additional period for negotiating and finalising such remedies may apply. Phase 2 The CMA has a statutory time period of up to 24 weeks to conclude a Phase 2 investigation. This deadline may be extended once, by a period of up to eight weeks, if the CMA considers that there are special reasons to do so (following changes brought in by the DMCCA, a Phase 2 review can also be extended beyond the statu - tory time period where the merging parties and the CMA agree to do so). The Phase 2 review clock can also be stopped if the parties fail to respond to a Section 109 Notice within the pre - scribed deadline.
In addition, in cases where the CMA proposes to impose remedies on the parties or to clear the transaction on condition that remedies are implemented, it will have a period of 12 weeks from the date of its Phase 2 Final Report within which to implement those remedies, potentially extendable by up to a further six weeks, in cer - tain circumstances. On 25 April 2024, the CMA issued updated guidance outlining a revised process for Phase 2 investigations. However, these changes are procedural as opposed to substantive in nature. 3.9 Pre-Notification Discussions With Authorities Pre-notification discussions with the CMA are common prior to the commencement of a Phase 1 review, where the parties are planning to for - mally notify the transaction. This reduces the risk of a notification being declared incomplete after submission (see 3.6 Penalties/Consequences of Incomplete Notification ). It may also reduce the risk of a transaction being referred for a Phase 2 investigation. If the notifying parties wish to participate in pre- notification discussions, the process is initiated by submitting a Case Team Allocation Form to the CMA (available on its website). The CMA will aim to allocate a case team within a reasonable timeframe. Upon allocation, the case team will review the draft merger notice and identify any additional information that it requires or consid - ers necessary. This process may involve multiple rounds of questions to reach the stage of the merger notice being considered satisfactory. In some cases, the CMA may invite the merging parties to make early submissions on specific theories of harm that it is considering.
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