UK merger remedies—practice and policy
UK merger remedies—practice and policy

The following Competition guidance note provides comprehensive and up to date legal information covering:

  • UK merger remedies—practice and policy
  • Structural remedies
  • Behavioural remedies
  • Prohibiting completed mergers
  • Remedies in relation to foreign-owned assets
  • Remedies process
  • Judicial review of merger remedies
  • International co-operation
  • Practical considerations
  • Accepting a phase 2 reference instead of offering more extensive undertakings in lieu at phase 1

BREXIT: The law and practice referred to in this Practice Note may be impacted by Brexit. For further information on the potential impact, see: The effect of Brexit on UK competition law in a deal or no deal scenario.

Under the Enterprise Act 2002 (EnA 2002), when investigating mergers, the Competition and Markets Authority (CMA) has the power to accept remedies (undertakings in lieu (UiL)) after a phase 1 investigation and impose remedies after a phase 2 investigation. The CMA cannot impose remedial action on parties at phase 1. Rather, it is up to the parties to offer UiLs to avoid a phase 2 investigation.

The different types of remedies that can be accepted or imposed include:

  1. structural remedies, for example:

    1. divesting all or part of the business acquired, or to be acquired, to a suitable purchaser

    2. carving a divestiture package out of the two merging businesses, with the purchaser keeping some of both businesses and selling some of them too

    3. keeping the acquired business and divesting the business already owned

    4. the sale of key assets (eg a manufacturing plant or take-off/landing slots at an airport)

    5. licensing/assigning brands and/or IP rights (this is a specialised type of structural remedy)

  2. behavioural remedies, for example:

    1. price controls

    2. commitments to continue supplying certain customers.

If necessary, the CMA may prohibit a transaction from taking place in

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