CMA consultation on document requests in merger investigations

The Competition and Markets Authority is consulting on draft guidance on requests for internal documents in merger investigations.  This reflects a tightening of the CMA’s approach in this area and is intended to assist merging parties to provide responsive and complete information.

The CMA states that it is likely to use section 109 notices in future investigations where internal documents are requested from main parties in both Phase 1 and Phase 2 merger investigations.

The guidance is well due, particularly as merger filing requirements in the UK are becoming more onerous in terms of document production. 

Although there are differences between the various notification forms internationally (and the information required from jurisdictions that do not require an actual form to be completed), a general range of boilerplate and often substantive questions and issues need to be considered.

The more straightforward filing under the Hart Scott Rodino Act in the US has not been the model favoured by the majority of the world’s merger control jurisdictions.  However, even in the US a filing needs to be accompanied by documents prepared by or for officers or directors used to evaluate or analyse the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets.  In most jurisdictions, significant time and costs are involved in preparing merger notifications.  The supporting documents that need to be provided with the notification also vary by jurisdiction.

The CMA seeks responses to this consultation on the draft guidance by 25 April 2018.

Source: https://www.gov.uk/government/news/cma-tightens-its-approach-to-requests-for-internal-documents