Introduction
The Competition and Markets Authority (CMA) sets out its merger control procedure in its guidance document, Mergers: Guidance on the CMA’s jurisdiction and procedure. The guidance took effect in 2014 when it replaced the CMA's predecessor, the Office of Fair Trading's guidance. The guidance has since been updated in December 2020 and again in January 2022.
Phase 2 investigations occur where, following an initial Phase 1 investigation, the CMA believes that the merger has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets for goods or services in the UK. Where a case is referred to Phase 2, an Inquiry Group is selected from a panel of independent members to make a final determination on the merger.
Following a consultation which ran from June to August 2023, where the CMA sought views from interested parties on how its in depth Phase 2 investigation process could be revised to ensure that the process operates as effectively and efficiently as possible, the CMA has now announced further plans to amend aspects of its Phase 2 procedure.
Why is the CMA proposing changes?
The CMA notes in the consultation document that the Phase 2 process has not significantly changed since the CMA was founded in 2014, despite significant changes such as Brexit, which has resulted in the CMA investigating an increased number of multi-jurisdictional cases. The CMA's investigatory practices have also evolved over time. The CMA is therefore looking to reform Phase 2 procedures to ensure that they are sufficiently agile and efficient in the contemporary merger control landscape.
Is the law changing?
The CMA is keen to emphasise that the proposed changes are not statutory and do not change the legal framework of the Enterprise Act 2002, which underpins the UK merger control regime. The key components of the CMA’s merger processes remain unaffected, and the proposals will not require any new or amended legislation.
Instead, the proposed changes revolve around enhancing engagement between the CMA and businesses involved in Phase 2 merger investigations, making updates to reflect changes to the CMA's practices, and to reflect recent judgements of the Competition Appeal Tribunal and legislative changes.
What are the proposals?
Increased engagement between the CMA and the merger parties
A key theme in consultation feedback was that parties want more opportunities to engage directly with the Inquiry Group throughout the process, especially in the early stages of the inquiry.
The CMA therefore proposes facilitating increased engagement between the CMA and the merger parties on the key issues in the phase 2 process via:
- Streamlining the starting point for the phase 2 investigation by abolishing the issues statement.
- Providing parties with additional early-stage opportunities to engage directly with the Inquiry Group, such as via a "teach-in" session, where parties have the opportunity to inform the Inquiry Group about the relevant markets by explaining how the businesses work and their relevant products or services.
- Making increased use of informal update calls throughout the inquiry
- Making provision for direct engagement with the merger parties’ economic advisers on particular evidence or aspects of the CMA’s analysis where appropriate.
Interim report and redesigned main party hearings
Feedback has indicated that main party hearings currently lack meaningful dialogue between the Inquiry Group and the merging parties. Instead, they could be improved by allowing the parties an opportunity to discuss and address the Inquiry Group’s core substantive concerns.
The CMA is therefore proposing:
- Publishing an interim report for consultation with merger parties and third parties earlier in the process than is typically the case currently with provisional findings. The goal of this is to refocus the main party hearings, giving the merger parties the chance to engage on the substantive case with the Inquiry Group, having had the opportunity to see the full case against them.
- Changing the focus of the main party hearings so they are less focused on information gathering and more interactive. Merger parties will have the opportunity to directly respond to the Inquiry Group’s provisional decision as set out in the interim report, and will be allocated a significant portion of the hearing to make oral submissions.
Remedies
In response to feedback that merger parties would like to discuss possible remedies with the CMA earlier in the phase 2 process, the CMA intends to encourage earlier without prejudice remedy discussions between the CMA and merger parties and, wherever practicable, basing those discussions on detailed remedy proposals.
Other changes
Other changes include amendments to reflect guidance from recent court judgments, and updating the current merger notice (notices to the CMA of proposed transactions which may result in a "relevant merger situation" falling within the scope of its merger control rules) to reflect changes to the Merger Assessment Guidelines and other developments, such as Brexit. The CMA's confidentiality waiver template is also to be updated.
Outlook
The CMA is seeking the views of interested parties on its proposed amendments. Responses should be submitted to Mergers.Consultation.Nov23@cma.gov.uk by 5pm on Monday 8 January 2024. After the consultation, the CMA will decide whether to make the proposed changes to the guidance, merger notice and template waiver, and whether any further changes are necessary.
Whilst there are no legislative changes for businesses to be aware of, and the legal framework underpinning the procedure has not changed, it will still be interesting to observe whether these proposals are implemented following the consultation, and to what extent they are amended. Whilst not a radical overhaul, the procedural changes as set out by the CMA have the potential to make the merger control process more engaging and efficient for merger parties subject to Phase 2 investigations. In particular, the increased opportunities to engage with the Inquiry Group should be a welcome development, helping to facilitate increased procedural fairness and better understanding of the businesses at hand earlier in the procedure, in turn leading to more robust investigations.
