Overall, the average time to get unconditional clearance at phase 1 (by far the most likely outcome of a merger review) remained consistent last year at 22 working days.

But for deals raising antitrust concerns, the story is rather different. Review periods are getting longer. The average time to receive a conditional phase 1 clearance, for example, increased to 97 working days across all jurisdictions surveyed.

The picture for phase 2 investigations remains extremely varied across jurisdictions. Adding in the often-lengthy pre-notification period before a transaction is formally filed, the merger control process for complex deals can last many months, and even years.

Fast-track procedures speed up many reviews

Keen to reduce the regulatory burden on merging parties and free up their own internal resources, several antitrust authorities made further improvements to fast-track or simplified procedures in 2023.

• EU: September 2023 revisions to EU merger control rules brought more deals within the scope of the simplified procedure. This means a lighter notification form and a quicker clearance decision. Average phase 1 unconditional clearance times have already fallen steadily in the past decade – a further decrease is likely.
• China: 90% of the nearly 800 merger control decisions taken by State Administration for Market Regulation (SAMR) last year were under the simplified procedure. 97% of those simplified cases were cleared at phase 1 in an average of 11 working days. SAMR continues to bring efficiencies to its simplified cases through its ongoing pilot scheme to delegate certain reviews to provincial-level market agencies.
• Spain: a reduction in the deadline for the review of simplified cases from one month to 15 working days has resulted in the average review period for unconditional phase 1 approvals dropping to just 12 working days.
• Brazil: fast-track notifications can now be submitted digitally. The authority then plans to use AI (likely from mid-2024) to clear these deals on the same date as filing. The platform may be extended to non-fast-track cases in future. It will be interesting to see if this model is adopted in any other jurisdictions.
• U.K.: it is not just “no-issues” cases that can take advantage of fast-track procedures. Last year, several deals that raised antitrust concerns were fast-tracked to the phase 1 remedies stage, shaving around 30 working days off the review period. Proposed revisions to U.K. merger control rules include a new mechanism enabling parties to request (even in pre-notification) a fast-track to phase 2 without having to accept that their deal raises antitrust concerns.

Greater use of suspensions and extensions creates delays in complex cases

On the flip side, many deals raising antitrust concerns have faced longer merger control investigations due to the in-depth review period being suspended and/or extended.

• EU: suspensions of in-depth investigations continue to be the norm. In five of the eight phase 2 European Commission decisions in 2023, suspensions were imposed and ranged from 15 to 168 working days (a median of 59). Extensions to the phase 2 statutory review deadline are also commonplace, occurring in three quarters of cases last year. These can add up to 35 working days to the standard 90-day timetable.
• U.K.: it is usual for the Competition and Markets Authority (CMA) to extend its 24-week phase 2 review period to enable it to conduct further analysis or consider remedies. We saw this in all but one of the eight in-depth reviews concluded in 2023. Six of these were extended by the full eight-week maximum. The CMA’s review period can also be extended if parties fail to respond to information requests by the required deadline. Until 2021, these types of extension were rare at phase 2. In the past three years, the CMA has extended its in-depth review on this basis in over a quarter of cases (seven of 26). Hitachi Rail/Thales, a 2023 conditional clearance, had over nine weeks added to its review timetable following two separate extensions.
• Ireland: the authority made frequent use of its powers to request further information, which suspend the review period. All four of its phase 2 reviews concluded in 2023 were suspended at some point.

In China, a “stop-the-clock” mechanism was introduced in 2022 to inject greater flexibility into the review process and remove the need for parties to refile their transaction if SAMR was unable to complete its assessment by the statutory deadline.

SAMR has started to make use of this tool, stopping the clock in three of its four conditional clearances last year (for around six, five and two months respectively). There are signs that this may be having a positive impact on in-depth review periods, but more examples are needed to confirm this. 

Parties less willing to enter U.S. timing agreements

After the parties have substantially complied with a U.S. Second Request (i.e., where the antitrust agency seeks additional information to kick off an in-depth review), the agency has 30 days to complete its assessment.

Traditionally, parties have entered “timing agreements” with the relevant agency, giving it more time – typically an extra 30 to 60 days, with further extensions often agreed – to reach a decision. However, over the past year we have increasingly seen parties to complex deals resisting such agreements.

With the agencies taking an aggressive approach to enforcement and more frequently challenging deals, parties want to ensure that any court proceedings get underway as soon as possible and are not delayed by giving the agency additional time to reach its decision to launch a complaint.

For the agencies, this development puts strain on their already stretched resources. Federal Trade Commission Chair Lina Khan has recently called for longer statutory review periods to relieve some of the pressure.