UK Law and Practice Contributed by: Alex Stratakis and Marc Freedman, Van Bael & Bellis
Process for Proposing Remedies at Phase 2 As a general matter, the CMA’s updated proce - dural guidance codifies – at various points – the CMA’s position that it encourages early “without prejudice” discussions/proposals on remedies at Phase 2. More specifically, in the updated guid - ance, the CMA now envisages enhanced oppor - tunities for the merging parties to propose draft submissions and hold early discussions with the inquiry group – and, crucially, obtain feedback – ahead of the publication of the interim report (eg, on the basis of a draft Phase 2 Remedies Form). Notwithstanding earlier opportunities to engage on remedies, where the inquiry group identifies an SLC in its interim report, it will consider poten - tial remedies it deems appropriate to address the SLC and will consult with the merging parties, as well as third parties, on any proposed remedies. • In order to propose possible remedies for the inquiry group’s consideration, merging parties should submit a Phase 2 Remedies Form (or an updated version if a draft Phase 2 Rem - edies Form has already been submitted) as soon as practicable, but usually no more than 14 calendar days from the notification of the interim report. Merging parties should confirm to the CMA case team whether they intend to submit a completed Phase 2 Remedies Form as soon as possible after they are notified of the CMA’s interim report – and, in any case, within three working days of publication of the CMA’s interim report. The level of detailed information required by the CMA in the Phase 2 Remedies Form will vary according to the type and structure of remedy/remedies pro - posed. • Following submission of the Phase 2 Reme - dies Form by the merger parties, the CMA will publish an Invitation to Comment on Reme - dies, which will set out any remedy proposals
• propose remedies at Phase 2 once the CMA has reached a provisional finding of an SLC. Process for Proposing UILs at Phase 1 Offered UILs should be formally submitted to the CMA using the CMA’s Remedies Form for Offers of Undertakings in Lieu of Reference and the CMA’s applicable template (available from its website). The UIL process at Phase 1 can be summarised as follows. • Upon receipt of the CMA’s SLC decision, the parties have up to five working days to offer UILs to address the SLC. • Once UILs are offered, the CMA has until the tenth working day after receipt of the SLC decision by the parties to decide on the acceptability of the offer. If the CMA decides to accept a modified version of the UILs offered, the parties will have a short period of time to confirm their agreement with the modified package. • If the CMA decides that the offered UILs might be acceptable in principle, it will con - firm this to the parties and publish a non-con - fidential version of its decision on its website, which triggers a public consultation process. • Third parties will have the opportunity to sub - mit their views to the CMA during the public consultation period, which lasts at least 15 calendar days. If the UILs are modified in a material way, then a second consultation of at least seven calendar days is required. • Taking account of third-party comments, a full assessment of the offered UILs will be undertaken by the CMA, which will decide whether to accept the UILs within 50 work - ing days of the SLC decision. An extension of up to 40 working days is available if the CMA considers that there are special reasons for granting this.
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