Strategic implications of changes in UK merger remedy policy

Abstract

2022 saw significant changes to policy on merger remedies in the UK. This article examines what they mean for merger clearance strategy along four vectors of change: (i) clarification of the Competition and Markets Authority’s remedial powers and procedural constraints following recent judgments of the Competition Appeal Tribunal; (ii) the CMA’s increased focus on intangible assets when designing remedies; (iii) a revolution in Phase 2 remedies procedure via the first use of a mechanism to concede a substantial lessening of competition to the CMA; and (iv) a substantive evolution in Phase 1 undertakings with the acceptance of creative remedies despite the high threshold for undertakings in lieu of reference to Phase 2 being accepted by the CMA.