ABSTRACT
Formal pre-notification procedures were first introduced by the Companies Act 1989, which added ss 75A-75F to the Fair Trading Act. The current statutory provisions are contained in ss 96 and 97 of the Enterprise Act 2002. Full details of the merger, including market shares, financial information, and the intended timescale of the merger, must be given in a formal merger notice. Section 97(1) provides that the period for consideration of a merger notice is 20 days after receipt by the OFT and that if this period expires without a reference being made to the CC no subsequent reference can be made. The basic 20 day period may be extended by a further 10 days, and there is also scope for extension where: the OFT is seeking undertakings in lieu of notice; insufficient information has been provided; or there has been an intervention notice in relation to a public interest merger. The obvious advantage to the parties of proceeding with a merger notice under the statutory pre-notification procedure is that a final, formal decision should be guaranteed within 30 days. The procedure is only available if the merger proposals have been made public. However, the parties may consider the statutory procedures and, in particular, the required format of the merger notice to be too inflexible. In that event, parties may proceed via non-statutory informal submission, the advantage being that they can submit information and present the merger in the manner deemed most suitable to them. In recognition of business preference to advise the OFT by informal submission, the OFT has established a nonbinding time limit, currently 40 days, for a decision whether to make a reference. Neither of the alternative notification procedures are confidential, and the OFT will routinely seek the views of interested third parties. An example of the pre-notification process involved the proposed acquisition of NatWest Bank by the Royal Bank of Scotland, where the proposed acquisition was cleared by the Secretary of State in 1999180 and the acquisition thereafter proceeded without concern over competition law intervention. A more recent alternative for parties, in order to avoid duplication of effort, is the submission of a ‘common notification form’, where a merger is to be examined in two or more of the UK, France and Germany; a 40 day deadline is also applicable for this type of informal submission.
