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Press releases 2009 -

OFT publishes revised guidance on Merger jurisdiction and procedure

76/09    30 June 2009

The OFT has today published its revised merger guidance which provides information and advice to companies on the procedures it uses when reviewing merger cases.

Download the Jurisdictional and procedural guidance (pdf 1.97 mb)

The new guidance reflects six years of practical experience of merger control by the OFT under the Enterprise Act, and provides relevant information on legal issues including the jurisdictional test applied by the OFT.

The guidance highlights:

  • the different types of transactions and arrangements, and the different levels of control being acquired, that may give rise to a reviewable merger
  • when parties should consider voluntarily notifying the OFT of mergers they believe may create competition concerns, and the best way to do this
  • the process the OFT follows in carrying out its competitive assessment
  • how the OFT will exercise its powers to preserve the possibility of remedial action in completed mergers
  • the way in which the OFT considers offers of remedies, and how the remedy process works in practice, and
  • how the mergers referral process operates between the OFT and the European Commission.

Alastair Mordaunt, OFT Director of Mergers, said:

'The maturity of the UK merger regime has brought increased clarity and predictability, enabling more firms to assess their own mergers. At the same time, the OFT's improved intelligence functions mean that genuinely problematic mergers are ever more likely to receive scrutiny.'

'Responses to our consultation asked for more detailed and practical guidance on the merger regime, including on the jurisdictional tests, and confidence that merger reviews will be carried out efficiently and proportionately. We believe that this guidance, alongside the joint OFT/CC substantive assessment guidance (currently out to consultation), delivers those things, and hope the additional transparency will be useful to merging parties and their advisers.'

NOTES

1. The finalised guidance replaces OFT publications: Mergers - procedural guidance (OFT526), Mergers - guidance note on the calculation of turnover for the purposes of Part 3 of The Enterprise Act 2002 (July 2003), Interim arrangements for informal advice and pre-notification contacts (April 2006), Explanatory note in relation to 'Interim arrangements for informal advice and pre-notification contacts' (October 2007) and chapter 2 of Mergers - substantive assessment guidance (OFT516).

2. The OFT consulted on draft guidance from 28 March 2008 to 20 June 2008 in line with the Cabinet Office's Code of Practice on Consultation. The OFT received written submissions in response to its consultation from 14 law firms and four professional bodies or trade associations. In September 2008, it published a Summary of responses to draft guidance consultation document and emerging thinking. This provided interested parties with an update on how the key issues eliciting comment might be crystallised in the final document.

3. The OFT is currently consulting - jointly with the Competition Commission - on draft joint guidelines on how they assess the competitive impact of mergers. See press release 49/09. When finalised, the joint mergers assessment guidance will replace the following OFT publications: Mergers - substantive assessment guidance (OFT516) and Guidance note revising Mergers-substantive assessment guidance (OFT516a). It will also replace CC publication: Merger References: Competition Commission Guidelines CC2. The deadline for responses to that consultation is 7 August 2009; comments are invited from interested parties and should be sent by email to tony.gooch@cc.gsi.gov.uk.

4. The OFT intends to publish in due course a consultation document covering its exceptions to the duty to refer and undertakings in lieu. This will sit alongside the joint guidelines published with the CC. The OFT currently expects to begin consultation on this towards the end of the year.




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