Exceptions to the duty to refer and undertakings in lieu guidance consultation

Start date: 1 October 2009
End date: 15 January 2010

The OFT has published a consultation on the text of revised guidance on the exceptions to the duty to refer and its ability to accept undertakings in lieu of reference.

This revised guidance will update the existing guidance found in chapters 7 and 8 of the OFT Mergers substantive assessment guidance (OFT516) in the light of six years of practical experience gained through the application of the Act, and taking account of judicial guidance. It also takes into account the OFT's decisional practice in the application of its revised guidance on the Exception to the duty to refer: markets of insufficient importance (OFT516b) since November 2007. Despite the relatively short time period that has elapsed since the publication of revised 'de minimis' guidance, the OFT has considered the exception in around 20 cases and has applied it in 10 cases.

The enclosed consultation document comprises a draft of the OFT's proposed revised guidance on which we invite comments. At the end of chapters 2, 3, 4 and 5, specific questions are raised in consultation boxes on which the OFT is particularly keen to receive comments. Those questions can be found in consolidated form at Annexe A.

We would welcome comments from all our stakeholders, including business and consumer groups, legal advisers as well as individual businesses.

In addition, the OFT is considering running one or more workshops with stakeholders in December to discuss the proposed guidance. To the extent that you would be interested in attending such a workshop, please contact Nicholas Scola (details below) by 30 October 2009.

Download the Exceptions to the duty to refer and undertakings in lieu consultation (pdf 662kb)

Responses

The OFT received 17 responses to its consultation. Where respondents have given permission, their submissions are available below. A summary of the responses, together with the OFT’s response to these, will be published in due course.

All files are in PDF format:

• Ashurst LLP (790kb)
• Baker & McKenzie LLP (74kb)
• CBI (161kb)
• Clifford Chance LLP (151kb)
• Edwards Angell Palmer & Dodge UK LLP (441kb)
• Eversheds LLP (222kb)
• Freshfields Bruckhaus Deringer LLP (160kb)
• Joint Working Party of the Bars and Law Societies of the United Kingdom on Competition Law (80kb)
• Mr Alistair Lindsay (69kb)
• Olswang LLP (390kb)
• Simmons & Simmons (58kb)
• Slaughter and May (790kb)
• Mr AWG Stubbs (55kb)

Back to: Closed consultations awaiting response