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OFT consults on revised guidance on merger jurisdiction and procedure

42/08    28 March 2008

The OFT has today begun consultation on the text of revised and expanded guidance covering the OFT's merger control jurisdiction and procedure under the Enterprise Act 2002.

The OFT's procedural guidance, which dates from May 2003, has been revised to reflect almost five years of practical experience of Enterprise Act 2002 merger control and relevant judicial guidance, and also provides significant new coverage on the issue of referrals of merger cases between the OFT and the European Commission, following the entry into force of the recast EC Merger Regulation in 2004. In a change of format, the draft text combines guidance on jurisdiction and procedure.

Download the consultation document featuring the proposed revised version of the guidance (pdf 547 kb).

As part of its review process, the OFT has already held informal workshops in London and Brussels with the external user community of practitioners and business to aid in preparing this text. As an active member of the International Competition Network (ICN), the OFT has also taken into account ICN best practice principles and guidance in reviewing its practices.

The OFT will publish its formal response to the consultation exercise in the form of finalised guidance, together with a summary of responses, in autumn 2008.

Simon Pritchard, OFT Senior Director, Mergers, said:

'With the de minimis notice in place, our next priority for revised mergers guidance covers jurisdictional and process issues. This consultation is the formal culmination of a long-standing dialogue on ways to improve the efficiency, flexibility and transparency of our merger casework procedures. Feedback so far suggests that these work well in most cases, so the proposals are generally pitched towards clarification and incremental improvement. However, we look forward to views on jurisdiction and further valuable comments on all aspects of our work.'

NOTES

1. The deadline for comments is 20 June 2008 and responses should be submitted in writing, preferably by email, but alternatively by letter or fax, to: OFT merger control: jurisdiction and procedure - consultation C/o Nicholas Scola, Mergers Group, Office of Fair Trading, Fleetbank House, 2-6 Salisbury Square, London, EC4Y 8JX. Fax:  020 7211 8916/11, Email: Nicholas.scola@oft.gsi.gov.uk

2. Download the current mergers - procedural guidance (pdf 236 kb) and current mergers - substantive assessment guidance (pdf 236 kb) which contains the current section on OFT merger jurisdiction. The OFT considers that an updated version of this information is better included alongside procedural guidance, giving merging parties and legal advisers a consolidated source covering whether a transaction might fall for review under the Act and, if so, how it may be examined by the OFT.

3. This consultation follows the criteria set out in the Cabinet Office's Code of Practice on Consultation.

4.  The consultation period on the procedural guidance guidelines will last 12 weeks and the closing date for consultation is 20 June 2008. The OFT may choose to refer to comments received in response to this consultation in future publications. In deciding whether to do so, we will have regard to the need for excluding from publication, as far as that is practicable, any information relating to the private affairs of an individual or any commercial information relating to a business which, if published, would or might, in our opinion, significantly harm the individual's interest, or, as the case may be, the legitimate business interest of that business (confidential information). If you consider that your response contains such information, that information should be marked 'confidential information' and an explanation given as to why you consider it is confidential. All information received is subject to Part 9 of the Enterprise Act 2002. If you are replying by email, these provisions override any standard confidentiality disclaimer that is generated by your organisation's IT system.

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