United Kingdom: Merger Control

Introduction

For the UK’s Competition and Markets Authority (the CMA) and the UK’s merger control regime, 2018 ¹and the first quarter of 2019 has been a hugely significant period.

Notably, the CMA intervened in a high proportion of M&A transactions that it investigated. This level of intervention reflects that, as a voluntary regime, the CMA will typically investigate fewer transactions but the transactions it does investigate can often raise potential competition concerns.

• Approximately 34 per cent of the CMA’s merger investigations in financial year 2018 involved either Phase I remedies or a referral for an in-depth Phase II investigation. ² This is a high rate of intervention, particularly compared to other competition authorities. For example, of the 414 notifications made to the European Commission (the Commission) in 2018, 6.5 per cent (27 cases) resulted in Phase I remedies or a Phase II investigation. ³
• 75 per cent of the Phase II investigations concluded during 2018 and 2019 year to date have either resulted in a prohibition or the deal being abandoned or the CMA requiring remedies in order to clear the deal. Of the 12 Phase II investigations that have concluded or been cancelled (seven in 2018 and five so far in 2019) the CMA has prohibited one; two deals were abandoned and six required remedies to obtain clearance.
• These cases cover a broad range of sectors including media, advertising, aerospace, retail, energy, industrial services as well as digital providers.

While the CMA has had a high rate of intervention, it has also cleared a number of transactions involving high shares of supply. Examples are described in the later section of this article. This reflects that the CMA is an evidence-based regulator that focuses its analysis on, for example, whether merging parties are close competitors and that views market shares as an initial screen for identifying possible concerns.

This article considers the key themes from the CMA’s merger investigations during this period.

From a procedural and policy perspective we consider:

• the CMA’s greater enforcement of the UK merger control regime;
• the broad scope of transactions caught by UK merger control;
• the significant changes made to the national security public interest regime (and the wider consultation on a new broad national security regime); and
• the CMA’s focus on internal documents, survey and other evidence.

From a substantive perspective we assess:

• the CMA’s approach to digital mergers and dynamic competition (and the Furman Review of competition in digital markets);
• the use of upward pricing pressure analysis as evidence of competition concerns;
• the scrutiny of vertical mergers; and
• buyer power both as a theory of harm and as a countervailing factor.

Finally, we also consider the fundamental reforms that, at the time of writing, have been proposed by the CMA to the UK merger control regime in the context of Brexit.

Procedural trends in UK merger control

Greater enforcement of the UK’s voluntary regime

A major theme of the CMA’s decisions and policy in the past year has been its focus on enforcing the procedural aspects of the UK’s merger control regime. This is not only in relation to its powers to investigate transactions that have not been notified to it but also in terms of its use of initial enforcement orders (IEOs) where it has issued a number of fines for the first time and its enforcement of its formal information-gathering powers.

The CMA’s substantial use of its power to investigate deals of its own initiative

A key way the CMA enforces the UK merger control regime is through its power to investigate transactions of its own initiative (ie, those transactions that have not been notified to it) and its monitoring of merger activity to determine whether any unnotified merger should be ‘called in’ for review.

The CMA’s monitoring function is performed by the CMA’s Mergers Intelligence Committee (MIC). The MIC has continued to be highly active. While in financial year 2018 the MIC actively considered slightly fewer transactions compared to financial year 2017, this still amounted to more than 600 deals and a higher proportion of these resulted in CMA investigations: clarificatory questionnaires were sent to companies in approximately 100–150 instances with 16 Phase I ⁴ investigations being launched and three proceeding to Phase II. ⁵

The importance of the MIC to UK merger control can also be seen in the continued successful use of the briefing paper process. For companies that do not wish to formally notify their trans­action to the CMA but wish to obtain some informal comfort that the CMA is unlikely to open an investigation, this process provides an option to submit a short (maximum five pages) briefing paper explaining why the transaction does not raise concerns to which the CMA can respond informally.

Stringent application of IEOs

Under the UK’s voluntary regime – which allows companies to complete a transaction prior to or without obtaining CMA clearance – the CMA can impose an IEO at Phase I or an interim order at Phase II.

An IEO prevents the parties to a deal from integrating their businesses and requires them to hold those businesses separate pending the CMA’s decision. IEOs thereby seek to prevent pre-emptive action that might prejudice the outcome of the CMA’s investigation or impede the CMA from taking appropriate remedial action. Penalties for failure to comply include fines of up to 5 per cent of the addressee’s group worldwide turnover (usually the acquirer).

The past year has seen a step-change in the CMA’s approach to IEOs.

First IEOs in anticipated mergers

In recent years, the CMA has almost always imposed an IEO in completed mergers and the number of IEOs imposed has remained largely stable: 20 IEOs were issued in financial year 2016, 19 in financial year 2017 and 17 in financial year 2018. However, for the first time in 2018 the CMA imposed IEOs in two mergers that had not yet closed (Tesco/Booker and Mole Valley/Countrywide Farmers). The Mole Valley deal was ultimately abandoned as a result of the CMA’s investigation.

First unwinding order

The CMA also issued its first unwinding order in relation to the completed Tobii/Smartbox acquisition. This required the parties to unwind integration that had taken place prior to the CMA’s investigation including unwinding an agreement that Smartbox discontinue certain products and halt its R&D projects. ⁶

Fines for non-compliance with IEOs

The CMA imposed four fines on companies for breaching IEOs.

• Electro Rent/Microlease:
  • in June 2018, the CMA imposed its first ever fine for breach of an interim order or IEO. Electro Rent was fined £100,000 for a ‘significant and flagrant’ ⁷ breach for failure to inform the CMA that Electro Rent had served a break notice on a lease. Electro Rent’s appeal to the UK’s specialist Competition Appeal Tribunal (CAT) was dismissed; and
  • in February 2019, Electro Rent was fined £200,000 for a further breach even though the CMA found that the breach had no actual adverse effect on its investigation. ⁸
• Ausurus Group/Metal & Waste: in December 2018 the CMA imposed a £300,000 fine for two separate IEO breaches. ⁹
• Vanilla Group/Washstation: the CMA issued a fine of £120,000 partly for its deterrent effect. ¹⁰

Enforcement of and challenge to information requests

Fine for failure to comply

In addition to greater enforcement of IEOs, the CMA has also actively enforced its information-gathering powers fining Hungryhouse £20,000 (the statutory maximum is £30,000) for failure to provide internal documents, particularly emails, which were responsive to a formal information request. The CMA criticised the way Hungryhouse had gathered the requested information and for not speaking to the CMA at an early stage about the methodology it used (particularly at the time that the CMA provided a draft of the request to the parties). ¹¹

Successful appeal of CMA deadlines

The CMA itself has been challenged for imposing short deadlines for responses to its requests and papers. In January 2019, Sainsbury’s/Asda successfully challenged the deadlines imposed by the CMA to respond to its working papers before the CAT as being unfair. ¹²

The CAT recognised that this is a difficult topic for both the CMA and parties to an investigation given the statutory timetable, the requirement to conduct merger investigations ‘swiftly’ and the size and complexity of mergers. The CAT, therefore, suggested that urgent consideration be given to a revision of the statutory deadlines, to provide for the greater flexibility that is available, for example, under the EU merger control regime.

Broad scope of transactions caught by UK merger control

The CMA’s investigation of Medtronic/Assets of Animas Corporation ¹³ in 2018 highlighted the breadth of transactions captured by UK merger control.

This transaction followed a decision by the seller to exit the insulin pumps market and was intended to enable the acquirer to support customers (through service support and the supply of consumables) for a temporary period while those customers transitioned to alternative suppliers (third parties or the acquirer).

Although the deal involved a limited asset transfer, the CMA found that this was sufficient to amount to an ‘enterprise’ and so was caught by UK merger control. A key reason for this was that the transaction included customer and patient records that had significant value and provided the acquirer with an advantage in securing the transition of customers going forward.

Public interest considerations – national security and media plurality

A further key procedural development this year related to the public interest element of the UK’s merger control regime that allows the UK government to direct the CMA to investigate a transaction on public interest grounds including national security or media plurality.

In 2018, the UK government intervened in two transactions on media plurality grounds, 21st Century Fox/Sky and Trinity Mirror/ Northern & Shell.

However, the UK government also made significant changes to the national security public interest test reflecting the global trend towards greater scrutiny of foreign investment.

It significantly expanded the UK jurisdictional thresholds for transactions in certain sensitive sectors and product areas: the target turnover threshold was reduced to £1 million and the 25 per cent share of supply threshold was amended such that there is no longer a requirement for a transaction to lead to an increase in the parties’ combined share of supply. The CMA’s stated intention is that these broader thresholds apply only to national security and not merger control considerations. These expanded powers were used for the first time in Northern Aerospace/Gardner Aerospace. ¹⁴

The UK government is also currently consulting on the creation of a new broad national security regime, similar to the US Committee on Foreign Investment in the United States (CFIUS) regime, which would sit alongside the UK’s merger control regime. For further information on these proposals and for updates see the Eversheds Sutherland guide and website. ¹⁵

Internal documents, surveys and other evidence

The CMA’s focus on internal documents as well as survey and other evidence – which play an integral role in the CMA’s analysis and are assigned considerable evidential weight – was reflected both in terms of the CMA’s policy and in its merger decisions during the past year.

The CMA’s approach to internal document requests was formalised in new guidance finalised in January 2019 (the Guidance). ¹⁶

• The Guidance confirms the CMA’s greater willingness to use its formal powers to require companies to provide internal documents. These powers place a statutory obligation on companies to comply. The CMA also notes that it may request the CEO or general counsel of the company to sign a compliance statement confirming that the business has complied with the formal request for information when it provides a response. As described above, the CMA has shown that it is willing to enforce these statutory requests.
• ‘Internal documents’ include all types of documents in the merging parties’ possession that have been prepared, sent or received by their officers or employees. However, the Guidance states that handwritten notes and instant messages are ‘rarely likely’ to be requested.
• The CMA does not expect to receive documents such as emails in response to its pro forma requests in Phase I but it makes clear that it may ask for such documents where those initially submitted to it ‘do not appear to fully capture the merging parties’ analysis of the merger or their assessments of competitive conditions within the markets at issue’. ¹⁷
• The types of documents requested, as well as the identity of the custodians ‘will be driven by the way in which a party conducts its commercial operations’. To this end, the CMA relies on information from the merging parties on their decision-making procedures and the way in which they gather, assess and disseminate competitive analysis.
• When the CMA issues a formal statutory information request and the request is particularly complex or extensive, the CMA may share a draft request with the merging parties where ‘practicable and appropriate’.

The importance of internal documents as well as survey evidence can be seen throughout the CMA’s Phase I and Phase II merger decisions during the past year. In Sainsbury’s/Asda, for example, the CMA revealed that it had reviewed 136,000 of the parties’ emails and ‘thousands of pages’ of other internal documents. Similarly, the CMA confirmed that it had conducted three large surveys of customers enabling it to obtain the detailed views of over 60,000 shoppers and motorists. ¹⁸

Substantive developments in UK merger control

The past year has seen significant developments in terms of the CMA’s analysis of mergers. This is particularly in digital markets where the CMA has made a concerted effort to assess competition on a dynamic basis but also in terms of its use of the Gross Upward Pricing Pressure Index (GUPPI) in retail cases, its scrutiny of vertical mergers and its approach to buyer power. These developments are described below.

Focus on mergers in digital markets and the dynamic counterfactual

Promoting better competition in online markets is a key strategic objective for the CMA ¹⁹ and it has sought to be at the forefront of the international debate about how competition law should apply to the digital economy.

This strategic objective has been reflected in the CMA’s merger investigations during the past year. Two of these have resulted in digital mergers being abandoned: TopCashback/Quidco ²⁰ (which involved the merger of the two leading UK cashback websites and which the CMA found had a combined share of supply of above 90 per cent) and Experian/Clearscore, ²¹ described further below.

Dynamic competition – Just Eat/Hungryhouse

A consistent theme of the CMA’s assessment of digital mergers has been its concern that ‘. . . online commerce can present greater challenges in predicting whether there will be harm to future competition’. ²²

The CMA has explicitly sought to deal with this issue by assessing digital competition not only in terms of static competition as it exists at the time of the merger but also in terms of dynamic competition; the threat imposed by potential competitors who have yet to enter the market.

In Just Eat/Hungryhouse, ²³ looking at market shares alone, it is clear to see why on a static view it could be argued that this merger may have been expected to result in a substantial lessening of competition: the CMA found that the parties had a combined share of supply of over 80 per cent, with Deliveroo’s share of supply at 5–10 per cent, and UberEats’ at 0–5 per cent. In addition, third parties considered that the parties were close competitors.

Despite this, the CMA assessed the merger on a forward-looking basis, taking into account evidence of how the market would be likely to develop and cleared the transaction.

• The CMA found that the competitive constraint imposed on Just Eat by Hungryhouse had been in decline since late 2015, and was likely to continue in the future.
• The CMA also recognised that ‘well-funded competitors, with strong brands and technological and logistics experience and expertise’ were likely to significantly increase their shares of supply in less than a year to approximately 20–30 per cent of the market. ²⁴

Dynamic counterfactual

The CMA has also taken account of dynamic competition in its assessment of the counterfactual, the analytical tool used to understand what the competitive situation would have been in the absence of the transaction (and which is used as a benchmark against which the expected effects of the transaction can be measured).

eBay/Motors and PayPal/iZettle (ongoing at the time of writing) each involved large multinational technology companies acquiring smaller online competitors. The CMA considered whether eBay and PayPal – which, at the time of the mergers, both competed to a limited extent with Motors and iZettle respectively – would, in the absence of the mergers, have become stronger competitors than suggested by a static analysis of competition.

• In eBay/Motors, the CMA concluded that while eBay did have a clear strategy to invest in its competitive service this would only be to maintain the service’s existing competitive position and not to enhance it. ²⁵
• In PayPal/iZettle, the CMA’s provisional findings were that PayPal would have been a stronger competitor than at the time of the transaction albeit that the CMA recognised ‘the limitations of what PayPal could achieve in the shorter term . . .’. ²⁶

In Cox/Autotrader, the CMA decided on a more competitive counterfactual than suggested by the prevailing conditions of competition at the time of the transaction, concluding that Autotrader would have developed its products to become a more direct competitor to Cox and that other players may also have entered or expanded their activities. ²⁷ By contrast in ATG/Lot-tissimo, the CMA considered whether Lot-tissimo would have entered the UK market to compete with ATG but found no evidence of this. ²⁸

In Experian/ClearScore ²⁹ (concerning online and mobile app-based personal credit checking tools and comparison platforms), the CMA considered but rejected the parties’ argument that regulatory developments in the personal finance industry such as Open Banking as well as technological advancements such as the use of application programming interfaces would lead to a more competitive counterfactual than suggested by a static analysis of competition. Instead the CMA was concerned that the transaction would reduce investment in product development and user experience and more generally would reduce the ‘. . . rate of innovation’. ³⁰

Furman Report – a step-change in analysis of transactions in digital markets?

While the CMA has actively sought to investigate transactions in the digital economy, the UK Government’s Digital Competition Expert Panel ³¹ (the Panel) in its final report ³² (the Furman Report) nevertheless determined that there has been an under-enforcement of digital mergers in the UK and globally, ³³ with, for example, none of Amazon, Apple, Facebook, Google and Microsoft having voluntarily notified or had their more than 400 acquisitions investigated by the CMA during the past 10 years.

In order to address this, the Furman Report made a number of recommendations that would significantly affect the way digital mergers are assessed in the United Kingdom. These include that:

• the CMA should prioritise digital mergers in its case selection and assessment;
• digital companies designated with a ‘strategic market status’ ³⁴ should be required to inform the CMA of all intended acquisitions; and
• legislative changes should be enacted to enable the CMA to use a ‘balance of harms’ approach so that the CMA is better placed to intervene in digital mergers that are likely to damage future competition, innovation and consumer choice.

The CMA ³⁵ has acknowledged the challenges of digital mergers. However, its view at the time of writing is that fundamental changes to the regime are not required and that the regime is ‘fit for purpose’, citing some of the cases described above where the CMA has explicitly assessed dynamic competition and non-price factors such as product quality and innovation.

This policy debate will remain a key issue in the United Kingdom and elsewhere over the coming years. At the time of writing, the UK government is expected to launch a consultation on the UK competition law regime including these proposals in Autumn 2019.

Pushing the boundaries: GUPPI as evidence of horizontal competitive harm

The CMA aims to be at the forefront of economic analytical techniques and in the past year it has expanded its use of the GUPPI to identify and quantify competition concerns particularly in retail mergers.

The GUPPI seeks to measure the incentive for merging parties to increase prices post-merger by assessing the level of sales likely to divert between merging companies in the event of a price increase and the companies’ gross margins. If, for example, there is material diversion of sales between merging parties and gross margins are of a sufficient level, then this would imply that the combined company would have an incentive to increase prices. The GUPPI is a percentage figure quantifying this.

As described below, a key development has been the CMA’s use of the GUPPI to assess vertical retail mergers. However, in the past year, a more controversial decision was how it applied the GUPPI to Sainsbury’s/Asda, ³⁶ which the CMA prohibited in April 2019.

As with previous retail cases, the CMA utilised the GUPPI to identify those markets at a national and local level that it believed raised competition concerns. However, the CMA applied a significantly lower GUPPI threshold for finding competition concerns than it had done in previous cases. For example, the CMA found competition concerns for supermarkets where the GUPPI exceeded 2.75 per cent and 3.25 per cent for convenience stores. ³⁷ This is considerably lower than the thresholds used in other large retail cases such as Tesco/Booker ³⁸ and Ladbrokes/Coral ³⁹ where the intervention threshold for finding a competition concern was 5 to 10 per cent or more.

While it is to be expected that the CMA’s methodology will develop and change over time and the CMA stresses that its approach is always case-specific, this is nevertheless a significant departure from previous cases. If the same thresholds were to be applied in other retail cases it would imply that low levels of diversion between merging parties (eg, in the range of 10 per cent) could, depending on the margins, result in the CMA finding a competition concern.

Continued scrutiny of vertical mergers

As the International Competition Network has highlighted, vertical mergers continue to be a significant challenge for competition authorities including the CMA. ⁴⁰ In the past year the CMA has been at the forefront of investigating these types of transactions.

Vertical mergers in the retail sector

In the retail sector, the CMA assessed the acquisitions by Tesco of Booker, ⁴¹ a leading wholesaler and by Co-op of Nisa, ⁴² also active at the wholesale level. In both cases the CMA was primarily concerned that the merged entity may have the incentive to raise wholesale prices (or reduce quality) to stores supplied by one of the merging parties. The CMA’s theory of harm was that this strategy would be profitable if the sales that the merging parties lost resulted in shoppers switching to a store owned by or supplied by the other merging party.

To assess this, the CMA applied a version of GUPPI to measure the level of diversion in a local area between the relevant parties’ stores (or stores supplied by them) and the upstream margin. This provided an estimate of upstream pricing pressure post-merger and therefore the risk that rivals may be foreclosed.

Sharing of commercially sensitive information as a vertical theory of harm

In Thermo Fisher Scientific/Roper Technologies (ongoing at the time of writing), in addition to finding input foreclosure concerns, the CMA is also concerned that Thermo Fisher’s acquisition of an upstream supplier would enable it to receive commercially sensitive information on downstream rivals’ bids and sales (including pricing information), technical product specifications and product innovation plans. The CMA has provisionally found that this would allow Thermo Fisher to compete less aggressively or foreclose rivals, for example, by bidding in tenders at a level below rivals but above what Thermo Fisher would have otherwise bid (and similarly offering marginally better product specifications and innovations to customers). ⁴³

Buyer power as a theory of harm and as a countervailing factor

Another feature of the CMA’s merger investigations during the past year has been its consideration of buyer power arguments.

Difficulties of buyer power as a theory of harm

In some cases, buyer power has been considered as a theory of harm, ie, that the transaction would lead to the merging parties having greater purchasing power over suppliers and that this would lead to anticompetitive effects. These cases show, however, that the CMA is reluctant to accept this argument.

In Tesco/Booker, the CMA rejected a number of buyer power theories of harm, including that additional buyer power would weaken rival wholesalers, supplier innovation would reduce as a consequence of the merged entity favouring sales of its own-brands and that the merger could lead to a reduction in the range of branded products stocked by Booker, thereby reducing customer choice. While acknowledging that there are circumstances where the exercise of buyer power may lead to harm, the CMA held that ‘the exercise of buyer power by wholesalers or retailers is not likely to raise competition concerns and might even be beneficial to customers’. It took the approach that when competition is effective, wholesalers or retailers are expected to pass on to customers a substantial portion of any better supply terms received. ⁴⁴

In Sainsbury’s/Asda, the CMA similarly examined whether increased buyer power over suppliers would result in adverse effects for customers and considered and rejected two theories of harm:

• innovation theory of harm: that increased buyer power might result in reduced incentives or ability to invest and innovate on the part of suppliers who may have less funds to do so; and
• waterbed effect: that increased buyer power might cause suppliers to raise prices to and hence the purchasing costs of rival retailers (ie, the ‘waterbed effect’).

Buyer power as a countervailing factor – retail versus other sectors

The CMA’s continued reluctance to accept buyer power theories of harm has, however, been accompanied by an increased receptiveness to accept arguments of countervailing buyer power in the retail sector.

By way of example, in Tayto/The Real Pork Crackling Company, ⁴⁵ despite a combined market share of more than 70 per cent in branded savoury pork snacks, the CMA was able to clear the transaction unconditionally at Phase I, in part due to it taking a favourable view on the ability of retailers to use their negotiating power to resist price increases. The CMA cleared the transaction in Valeo Foods/Tangerine Confectionery ⁴⁶ at Phase I on similar grounds, despite the parties having a combined market share of 50–60 per cent in the supply of own-label mints.

By contrast the CMA has, during the past year, rejected these arguments in deals in other sectors. The parties to Rentokil Initial/Cannon Hygiene ⁴⁷ (washroom services), TopCashback/Quidco ⁴⁸ (cashback websites) and Horizon Global/Brink International ⁴⁹ (automotive parts – towbars) each argued that customers would continue to have countervailing buyer power post-transaction. However, the CMA rejected this, finding that customers would not have sufficient choice to enable them to exercise buyer power post-transaction.

Proposed reforms to the UK merger control regime

A hybrid mandatory and voluntary merger control system?

Finally a review of UK merger control in 2018 cannot be complete without mentioning the impact of Brexit. At the time of writing, Brexit remains one of the CMA’s biggest challenges to date and the UK’s departure from the European Union is set to lead to a substantial change to UK competition law including in relation to merger control.

Currently, the Commission has exclusive jurisdiction to assess transactions that meet the turnover thresholds set out in the EU Merger Regulation, including the aspects of the deal that could affect any UK market. At the time of writing, it is expected that once the United Kingdom leaves the EU, the CMA will have exclusive authority to review transactions in the UK regardless of whether or not the same transaction is also being considered by the Commission. This means that, post-Brexit, the CMA is likely to review ‘bigger and more complex global cases’, ⁵⁰ alongside the Commission and potentially other competition authorities worldwide. The CMA estimates that it will review an additional 30 to 50 mergers annually.

Furthermore, section 60 Competition Act 1998 will be repealed once the UK leaves the EU meaning that the UK competition regulators and courts will no longer be required to ensure consistency with EU competition law, including EU merger decisions and case law, unless it pre-dates exit date. This opens the door to the possibility of divergent outcomes between the EU and the UK.

With this in mind, the CMA has proposed a ‘hybrid’ merger control system in the UK. ⁵¹

• For large international mergers that meet certain thresholds, the CMA is proposing a mandatory merger control regime. This will include a standstill obligation that will prohibit parties from implementing their transaction prior to the CMA’s clearance. The CMA is also considering introducing a ‘short-form notification’ process to minimise the impact of non-problematic mergers on businesses.
• Alongside this, the CMA proposes to maintain the current voluntary merger regime that allows parties to notify their transaction and enables the CMA to review transactions at its discretion, where separate thresholds are met (eg, based on the share of supply or turnover of the merged entity).

The proposed reforms are wide-ranging in other respects, with the CMA suggesting new financial sanctions to strengthen the CMA’s information-gathering powers (bringing it in line with peer regulators such as the Commission). Boards of public companies would also be required to strengthen competition and consumer law compliance, the CMA would have an overriding ‘consumer interest’ statutory duty and the scope of appeals of CMA decisions would be reduced.

Further details of these proposals will be published and consulted on in summer 2019. For updates on this and other Brexit-related items please refer to the Eversheds Sutherland website. ⁵²

Notes