1. No change to voluntary and non-suspensory merger review process

• The Competition and Markets Authority (CMA) will continue to actively review markets and call in transactions it considers may raise antitrust concerns. It will impose strict “hold separate” obligations, particularly in completed deals.

Merger control thresholds summary

Current thresholds:

• Target’s U.K. turnover > GBP70m; or
• Parties’ share of supply ≥ 25% of any goods or services in the U.K. (or a substantial part of the U.K.) in which they overlap. 

New thresholds:

• Target’s U.K. turnover > GBP100m; or
• Parties’ share of share of supply ≥ 25% of any goods or services in the U.K. (or a substantial part of the U.K.) in which they overlap and at least one party has U.K. turnover > GBP10m; or
• (i) One party has a share of supply ≥ 33% of any goods or services in the U.K. (or a substantial part of it) and has U.K. turnover > GBP350m; and (ii) another party is a U.K. business/body, at least part of its activities are carried on in the U.K. or it supplies goods or services in the U.K.

2. New “acquirer-focused” threshold will enable more scrutiny of vertical deals

• The CMA will have newfound jurisdiction to investigate deals where:

1. one party has a share of supply of at least 33% of any goods or services in the U.K. (or a substantial part of it) and has a U.K. turnover of more than GBP350m; and
2. another party is a U.K. business or body, at least part of its activities are carried on in the U.K or it supplies goods or services in the U.K.

• This will make it easier for the CMA to assert jurisdiction over non-horizonal mergers, including purchases by large players of start-ups or small innovative firms.
• Digital and pharma deals will most likely come under scrutiny, although the threshold is sector-agnostic.

3. Increase to target turnover threshold from GBP70 million to GBP100m

• There will also be a new exemption where each party has U.K. turnover of less than GBP10m.

4. Share of supply test unchanged meaning continued unpredictability

• The test (see above for details) gives the CMA huge flexibility to take jurisdiction over deals that appear to have only limited or no impact in the U.K.
• We expect the CMA to continue to use the test creatively. However, the government has previously pledged to monitor its operation and may consider reforms at a later date.

5. New fast-track procedure will streamline in-depth reviews

• Parties can request an automatic reference to phase 2 at any stage of pre-notification or the phase 1 review, potentially shaving months off the overall process.
• The CMA will not have to determine whether the merger has resulted or will result in a substantial lessening of competition (SLC). Nor will parties need to accept that the merger may create an SLC.
• Other recently implemented changes to the phase 2 process (to facilitate increased engagement between the parties and CMA decision-makers, and enable earlier focus on the issues and remedies) will complement these reforms.

6. Parties can agree with the CMA to extend an in-depth review

• This will allow time for the consideration of remedies, which could be invaluable in complex cases.
• It could also be a useful tool to help parties align parallel reviews in multi-jurisdictional mergers.

7. Firms designated under the new digital markets regime must report deals

• Large firms designated as having “strategic market status” will be obliged to report transactions that meet certain thresholds (lower than those under the general merger control regime - see our digital markets takeaways for more information).
• They cannot complete these deals until expiry of a waiting period, which will run for five to ten working days after the report is submitted.
• If a reported deal raises concerns, the CMA can take forward an investigation through the standard merger control regime and may impose a “hold separate” order.

8. New rules prevent foreign ownership of U.K. newspapers

• With immediate effect, the Secretary of State will be able to intervene in transactions where they suspect a “foreign power” will have ownership, control or influence over U.K. newspapers or periodical news magazines.
• The CMA will be required to report on whether relevant thresholds are met. This includes a reduced turnover test of GBP2m. If they are, the Secretary of State will prohibit the transaction.