UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
4.3 Reliance on Case Law The CMA is not required to follow its previous decisions. That being said, the CMA’s past deci - sions, as well as decisions of major jurisdictions (particularly in the US and EU), may inform its assessment but, importantly, the CMA can depart from its past decisional practiceand has frequently done so, especially in the last ten years. 4.4 Competition Concerns See 4.1 Substantive Test . 4.5 Economic Efficiencies The CMA is able to take account of any fac - tors that may prevent or appreciably reduce any harmful impact of the merger, and parties are encouraged to engage with the CMA on this issue as early as possible, if any efficiencies are to be claimed. The CMA considers merger efficiencies to fall into two categories: • rivalry-enhancing efficiencies – these are effi - ciencies that incentivise the merging parties to act as stronger competitors to their rivals (eg, by reducing their marginal costs, which incentivises them to provide better prices or a better quality, range or service to customers); or • relevant customer benefits – these are benefits to UK customers resulting from the merger, such as improved innovation result - ing from the combination of unique assets of the merging parties applying to products on which the parties do not compete, or reduced carbon emissions to the extent that the par - ties do not normally compete on sustainabil - ity.
In claiming such efficiencies, the parties will need to provide supporting evidence demon - strating that: • the efficiencies are timely, likely and sufficient to prevent an SLC; and • the efficiencies are transaction-specific such that they could not exist in the absence of the transaction. 4.6 Non-Competition Issues The general UK merger control regime assesses transactions on the basis of competition con - cerns. However, there are certain contexts where non-competition issues may be considered. National Security The NSI Act enables the UK government to examine and intervene in mergers on the grounds of national security. If a transaction requires both a national security and a competition review, the Investment Security Unit (ISU) and the CMA will work closely together (see 9.1 Legislation and Filing Requirements ). Sustainability In assessing economic efficiencies such as rel - evant customer benefits, the CMA may consider sustainability enhancements. Recently, the CMA has been vocal in its willingness to take account of environmental improvements where appropri - ate and, in general, supporting the UK’s Net Zero Strategy. Public Interest The secretary of state is able to intervene in “pub - lic interest mergers” and ”special public inter - est mergers” under the EA (see 1.2 Legislation Relating to Particular Sectors ). In public interest mergers, transactions will be assessed on public interest grounds and may also be assessed on competition grounds. In special public interest
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