Phase 2 In 2022

Posted on February 21, 2023 by Adrian Payne Consulting

In my previous posts reviewing 2022 I have focused on Phase 1 outcomes.

To complete the picture here are the key figures regarding the CMA’s completed Phase 2 merger investigations in 2022…………………..

The Most To Date…

In 2022 there were 14 final decisions, the highest under the CMA and well above the previous years’ average of 10.

But for some of the merging companies involved there was good news……

Good News?…

First, the deal survival rate (8 out of 14) was the highest since 2017, the last time that survivors outnumbered terminated deals.

Second, the number of Phase 2 remedies accepted (5) was the highest number since 2016.

As I noted in my review of Phase 1 outcomes, remedies at that phase were also at their highest since 2017, a theme I’ll return to in a forthcoming post.

And third, the five Phase 2 remedies included two of the new ‘fast-track’ Phase 2 remedies that are now potentially available to merging parties – Sika/MBCC and Carpenter/Recticel.

Quick Fix Questions…

It will be interesting to see how this new policy works in practice.

Here are two questions about it worth keeping in mind….

1.How will this new fast-track process affect the incentives of the parties to offer undertakings at Phase 1 and overall case strategy at Phase 2?

2. And how might it affect the substantive competition assessment at Phase 2 and thereby change the overall enforcement pattern at Phase 2?

If you have thoughts on this, do feel free to comment.

Click here for an interesting piece on Phase 2 fast-track cases by Sofia Platzer and colleagues

According To Our ForFarmers

Posted on February 15, 2023 by Adrian Payne Consulting

The CMA’s write-up of its Phase 1 decision regarding the joint venture between Forfarmers and Boparan raises several important points relevant to parties assessing merger control prospects, including :

It cannot be assumed that the CMA will use the same travel distances for catchment areas as in previous cases that the parties think are similar
Local share of supply thresholds can form the SLC decision rule (rather than a trigger for further analysis) – even in cases where the number of local areas for consideration is small
The level of the share of supply thresholds used to determine SLC (in this case 35% + 5%) depends on the facts of the case – for example, whether rivals have spare capacity.

The CMA identified horizontal and vertical competition concerns.

The deal has been abandoned shortly after reference to a Phase 2 investigation.

An Unusual Call Of Duty?

Posted on February 13, 2023 by Adrian Payne Consulting

Last week the CMA announced that it has provisionally found so-called ‘vertical’ competition problems with the Microsoft/Activision deal, centring on the popular game ‘Call of Duty’.

A vertical problem is one that results from of the coming together – or greater coming together – of different levels in a supply chain, rather than a combination at the same level.

In the past few days there has been a lot of commentary on last week’s announcement, some of it suggesting that this case is somehow unique or unusual.

So – How unusual is this outcome?

As always, it depends how you measure it. But here are a couple of thoughts………

1……………..

This case is one of 14 where the Phase 1 investigation identified vertical competition problems sufficient to justify reference to an in-depth Phase 2 investigation.

To put this is context, there have been around 90 completed CMA Phase 2 investigations to date.

Five of the previous thirteen survived the CMA process.

This is a very similar survival rate to other Phase 2 cases

2………….

In my assessment, the Microsoft/Activision CMA Phase 2 investigation is one of eight to focus primarily or exclusively on vertical matters.

If the CMA decided to prohibit the current transaction it would mean that three of the eight did not survive the CMA process.

If, instead, the CMA accepted a remedy to the competition problems identified, this would the first among these eight cases.

————————–

There may well be other ways of looking at the question of how distinctive this case is.

Do comment below or drop me a line if you have other perspectives.

This post builds on data from a briefing on this case held in the first week of the year which also looked at the detail of the Phase 2 process and the significance of the extension to the Phase 2 timetable.

UK Merger Insights: 2023 No.1

Posted on February 8, 2023 by Adrian Payne Consulting

Here are links to some of the most insightful merger control articles I’ve come across so far this year:

In this article Scott Sher discusses a number of matters that are highly pertinent in the UK as well as in the US, the focus of the piece.

Will pressure on disposable incomes affect the CMA’s priorities in terms of which mergers it looks at?

James Baker and colleagues look at this question here.

What can we learn from the two fast-track CMA Phase 2 remedy cases to date?

Sofia Platzer and colleagues take a look here.

The future of merger remedies.

In this piece John Davies reports on the main themes of a recent conference on the subject

The first year of the National Security and Investment Act

Kate Kelliher and Marc Israel review what happened in 2022. Link here.

Please feel free to add a comment or press the ‘like’ button if you’d like more of these occasional round-ups.

Late Exit Pass

Posted on February 6, 2023 by Adrian Payne Consulting

The CMA’s recently-published Phase 1 decision on the Korean Air Lines/Asiana Airlines merger includes interesting discussion on the way in which arguments unfolded as to whether that the target would exit if the merger did not proceed.

The merging parties’ initial submission was that, in the absence of the merger, Asiana would be a substantially weaker competitor.

According to the decision write-up the parties only later argued that the criteria for the ‘exiting firm’ test are met, an argument that the CMA rejected.

In the parties’ response to the CMA’s issues letter, they indicated that they had not made this argument earlier because the CMA had indicated that it would be highly unlikely to accept such a counterfactual in Phase 1.

The CMA said that the fact that the Parties only submitted that the exiting firm test is met at a very advanced stage of the CMA’s investigation (ie in response to the issues letter) limited the CMA’s ability to conduct the evidence-gathering that would typically be required to assess whether this test is met.

This is all rather circular!

But it isn’t new.

Late and unsuccessful deployment of an exiting firm case at Phase 1 has been seen many times before.

In fact I talked about it in my very first blog – nearly ten years ago!

In a later post I’ll aim to look at some of the reasons why this scenario recurs.

In the meantime, here’s the key question that firms contemplating merger in the UK might want to ask very early on:

What can be learnt from the 48 previous CMA cases in which ‘exiting firm’ arguments have been deployed about :

prospects for success and

how best to make the argument?

The Great Bake … Off

Posted on January 31, 2023 by Adrian Payne Consulting

Cérélia/Jus-Rol

On January 20th the CMA announced its first merger prohibition of the new year by concluding that merger between Cérélia andJus-Rol is likely to reduce competition substantially and that Jus-Rol needs to be sold to an independent buyer.

It is unusual to see a case in the food manufacturing sector referred to a Phase 2 inquiry. In fact it’s only the second time for the CMA, out of 29 cases to date.

And this is the first to be prohibited.

According to the CMA, Jus-Rol is by far the largest supplier of branded ready-to-bake products in the UK, while Cérélia is the largest supplier of own-label ready-to-bake products, making these items on behalf of some of the nation’s largest grocery retailers.

Key to the CMA’s Phase 2 conclusion were the following findings:

the merger brings together the 2 leading suppliers in the market by a considerable margin – ready-to-bake items supplied by Cérélia and Jus-Rol account for nearly two-thirds of all such products sold to grocery retailers in the UK.
Jus-Rol items compete with supermarkets’ own-label products supplied by Cérélia for the same space on many supermarket shelves.
grocery customers regard the companies’ products to be important alternatives to one another – particularly because there are few credible alternative suppliers of either branded or own-label products.
the merging businesses face limited competition, with all other suppliers being far smaller and many of them lacking the capabilities held by Cérélia and Jus-Rol.

So is this food sector prohibition as unusual as it might seem?

Not if you look more widely than this particular sector.

According to my analysis there have been 10 previous deals with the same pattern of key evidence, across all sectors. Only two have raised no significant competition problems and none have so far survived the Phase 2 process.

The link to the CMA’s Phase 2 report is here.

Basement Clearances

Posted on January 18, 2023 by Adrian Payne Consulting

This is the third of my posts looking back at UK merger control in 2022……….

The first looked at the low overall number of cases and the second at the near disappearance of so-called ‘de minimis’ cases.

In this post I look at Phase 1 clearance cases.

Here are the figures for Phase 1 clearance cases (in which I include ‘de minimis’ decisions)…

Four points stand out –

1.In 2022 there were just 20 Phase 1 published decisions that reported unconditional clearance, by far the lowest under the CMA.

2. And most of these were in the first half of 2022. The second half saw only 7.

3. It is the fourth successive annual fall and a sharp drop from 2021.

4. And the first year that fewer CMA Phase 1 published decisions reported clearance than did not.

Which all begs the question – Where have the clearance cases gone?

Much De Minished

Posted on January 13, 2023 by Adrian Payne Consulting

Continuing my look back at 2022….

One of the features of the very low number of cases in 2021 and 2022 is the tiny number of cases considered for application of the ‘de minimis’ (low market size) exception to the CMA’s duty to refer.

In simple terms this exception enables the CMA to decide that it is not worth taking further action against mergers where an investigation has shown that competition problems may arise but where the size of the markets involved and/or the effects of the competition harm are too small to justify a reference to an in-depth Phase 2 investigation

In 2021 and 2022 I am aware of only one case in each year where ‘de minimis’ was considered in a public investigation – and accepted in both cases.

In the CMA’s early years between six and nine were considered in each year, with many being unsuccessful.

It is true that, in 2017, the CMA increased the market size below which it would be likely to exercise the exception.

This inevitably takes some cases out of the CMA’s reach (by my calculation, perhaps about half of them at the original thresholds).

But it also shifted the lower de minimis boundary upwards, meaning that cases that would once not have qualified for de minimis treatment, now do so.

So where are these cases?

Perhaps there simply haven’t been many in recent times and they will reemerge in due course.

Perhaps the CMA’s Merger Intelligence Committee has paid them less attention than before.

Or maybe more are now being dealt with through the CMA’s non-public briefing paper system , under which – since 2016 – merging parties have been able to submit a short paper to the CMA setting out why the CMA should not formally investigate the deal.

If there were, say, 50-100 briefing paper cases during 2022, it would be quite plausible that 5-10 or so might feature de minimis aspects (though less clear why none would make it through to investigation).

In the absence of published data on the CMA’s briefing paper activity how likely is this scenario?

If you have views on this (or any of the above) do let me know, either in the comments box below or by dropping me a line.

A Low, A Low

Posted on January 5, 2023 by Adrian Payne Consulting

Happy New Year everyone.

As we look forward to 2023, what better time to review some of the key features of UK merger control in 2022?

Let’s start with the number of cases. (In coming posts I’ll look at other aspects).

Here’s my calculation of the number of Phase 1 published decisions by year (excluding those cases that were investigated but failed to meet the jurisdiction thresholds and national security-driven cases):

2014	62
2015	70
2016	60
2017	61
2018	55
2019	58
2020	47
2021	40
2022	41

The headline point is clear: the number of published Phase 1 decisions remained near its record low in 2022, despite the UK taking on responsibility for more merger cases after leaving the EU. Some predicted a big increase in the CMA’s caseload as a result.

A number of factors are relevant here, including:

Deal numbers – still affected by pandemic-related disruption
The type of deals being done
How selective the CMA is in the deals it chooses to investigate

What’s your view on the balance between these?

Do feel free to post your comments in the box below.

Adrian Payne

Specialist in Competition Assessment and Merger Analysis

Phase 2 In 2022

An Unusual Call Of Duty?

UK Merger Insights: 2023 No.1

Late Exit Pass

The Great Bake … Off

More Problematic Than Not

Basement Clearances

Much De Minished

A Low, A Low

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