UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
5.2 Parties’ Ability to Negotiate Remedies
mergers, transactions will be assessed on public interest grounds only. 4.7 Special Consideration for Joint Ventures Joint ventures are assessed using the same con - siderations as other relevant merger situations. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions Whilst this section is accurate at the time of writ - ing, it should be noted that, in March 2025, the CMA launched a consultation on its remedies policy, focusing on three key areas: • how the CMA approaches remedies, includ - ing the circumstances in which a behavioural remedy may be appropriate; • how remedies can be used to preserve any pro-competitive effects of a merger and other customer benefits; and • how the process of assessing remedies can be made as quick and efficient as possible. The CMA now intends to use this and other feed - back to develop specific proposals in this area, which are expected to be published for consul - tation in the autumn. At Phase 2, if the CMA establishes that the transaction has resulted, or may be expected to result, in an SLC, it must decide whether the SLC or any resulting adverse effect(s) should be remedied, mitigated or prevented (see 4.1 Sub- stantive Test ). In general, this means the CMA will typically impose remedies at the end of the Phase 2 review, which may include prohibiting or unwinding a completed transaction.
Merging parties may offer remedies to address competition concerns raised by the CMA at either Phase 1 or Phase 2, or during pre-notifi - cation discussions. Merging parties are encour - aged to consider possible remedy packages at an early stage of the process, if a transaction is expected to raise competition concerns. This approach is usually taken to avoid a Phase 2 reference, aiming to offer remedies capable of resolving issues raised by the CMA at Phase 1, known as UILs. If the CMA decides to accept offered UILs, it will no longer be able to refer the case to Phase 2. Therefore, the CMA will need to be convinced that the UILs will effectively resolve the identified competition concerns and are capable of being implemented within the Phase 1 timetable. Note that the CMA is not able to unilaterally impose UILs on merging parties – ie, UILs are entirely voluntary and it is up to the parties con - cerned to formulate and offer them as they see fit. 5.3 Legal Standard In considering any remedies put forth, the CMA is required by the EA to have regard to the need to achieve a comprehensive solution that is fit for the purpose of remedying, preventing or miti - gating an SLC as well as any resulting adverse effects, taking account of how reasonable, pro - portionate and practicable such a solution would be. 5.4 Negotiating Remedies With Authorities The CMA’s guidance on merger remedies sets out the common principles that apply to the assessment of remedies at Phase 1 and Phase
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