ABSTRACT
Chapter 8 on merger control looks first at UK merger control under the Enterprise Act 2002. The Competition and Markets Authority can deal with any qualifying merger although notification is not mandatory. The substantive test for assessment of mergers in the UK is whether a merger will lead to a substantial lessening of competition (the SLC test). There are special provisions for public interest mergers. UK merger control has two phases. Normally, these will be structural remedies to ensure competition in the market for the longer term. All aspects of the UK merger control process are subject to judicial review by the Competition Appeal Tribunal. Following UK withdrawal from the EU, there are likely to be considerable resource implications for the CMA with many merger cases being reviewed in parallel with a separate assessment under EU merger control rules.
The EU merger control rules are in Regulation 139/2004. Any merger (termed a concentration) with a ‘Community dimension’ (based on turnover thresholds) must be notified to the European Commission for approval. The Regulation creates a one-stop shop, whereby Community dimension mergers only have to be notified and approved by the European Commission rather than by various Member State NCAs. This simplifies the process of merger approval, but retains some flexibility. Where a merger raises serious competition concerns parties will usually make structural commitments, such as divestment or sale of part of a business to allow the deal to proceed. Very few mergers lead to a final prohibition decision. The Commission decision-making process is subject to review by the European Courts.
