The Competition and Markets Authority completed its first six months of cases at the end of September.
Since mid-August it has been in the unusual position (as compared with its predecessor, the Competition Commission) of having no Phase 2 merger cases to consider.
As one FD put it to me last week: “What’s up at the CMA? – I thought there has been a merger boom going on”
Well, actually, in the UK there hasn’t !…………. (as the latest official statistics show).
There are in fact several different elements to the answer, as the following picture shows.
Figure 1: UK Mergers: April 1st to September 30th 2014
On the face of it some of these figures appear very striking.
No wonder some competition practitioners are already talking of a significant change of approach by the CMA, compared to its predecessor agencies.
Indeed change would not be at all surprising because:
- New timetables and procedures are revising what is possible at Phase 1 (including pre-notification) in some cases.
- Putting Phase 1 and Phase 2 into a single organisation gives incentives to optimise resources across the two phases that did not exist when the OFT and Competition Commission were separate agencies.
But, not so fast….
….whatever changes do eventually emerge, there is a real danger of drawing premature conclusions.
Six months of case data is far too short a period from which to infer changes in underlying trends. And bear in mind that the number of cases involved at the lower end of the funnel is small.
Looking at the individual cases involved and comparing them with previous years, it is just as likely that the six month figures reflect the mix of cases in terms of sector, size and the pattern of competition issues raised.
With this in mind it is worth remembering that many of the parameters in the ‘funnel’ shown above can and do vary widely from year to year.
To take just one example: the following chart shows how the proportion of qualified cases (i.e. those that have met the jurisdictional criteria) found to raise competition problems at Phase 1 has varied since the Enterprise Act came into force. The latest year’s figure is in fact not much lower than for six of the previous ten years.
Figure 2: Phase 1 ‘Substantial Lessening of Competition’ findings as a proportion of qualified merger cases
I’ll be returning to this subject in a future article so do drop me a line if you have thoughts.
In the meantime, with eleven Phase 1 decisions due for announcement over the next six weeks, the picture could change rapidly.
Click here for the latest UK merger control statistics.
My article on the one CMA merger reference so far is here.
My ‘A-Z of 2014 UK Merger Analysis’ presentations are taking place in January. Please get in touch if you are interested in arranging one for your firm.