2015/16: A Record Year For UK Merger Control

This post looks at the pattern of merger control decisions during the Competition and Markets Authority’s (CMA’s) second full year, which ended on March 31st. The decisions covered are those for which final decisions were published during the year.

In summary:

2015/16 turns out to have been a record-breaking year in many different respects

  1. A record low number of Phase 1 merger decisions

The 62 published CMA Phase 1 decisions was the lowest number of any year since the Enterprise Act came into force and well down on 2015/16.

A third successive sharp drop in the number of non-notified mergers that the CMA ‘called in’ for investigation contributed to the fall. Only 10 cases were called in, the lowest number I can recall for any year. Another record.

Phase 1 Merger Decisions – 2015/16 compared to previous years

160406-phase 1 figures 15-16

2. A record low number of decisions was found not to meet the jurisdiction criteria

The number and proportion of published cases found not to meet the qualifying tests for jurisdiction was in 2015/16 a fraction of its historic average – and by far the lowest in any year so far under the Enterprise Act.

3. Phase 1 competition problems at a record high

The proportion of Phase 1 cases meeting the jurisdiction tests (so-called ‘qualified cases’) that was found to threaten a ‘substantial lessening of competition’ (SLC) doubled compared to the CMA’s first year and reached a record high of 38%.

There are two elements to this that are worth noting:

  • Cases that are candidates for a Phase 1 SLC decision are examined in detail at a so-called ‘Case Review Meeting’, late in the Phase 1 process. The proportion of cases taken to a Case Review Meeting was well above average in 2015/16.
  • And of those cases, over 80% resulted in an SLC finding – again well above average.
  1. The lowest ever proportion of cases decided at Phase 1

The proportion of qualified cases decided at Phase 1 was the lowest to date under the Enterprise Act.

This result stems from the fact that, even though the proportion of problematic cases referred to Phase 2 for further investigation was well below average, the percentage of problematic cases in the overall caseload was at a record high, as described above.

  1. The proportion of problematic Phase 1 cases deemed too small to merit a Phase 2 investigation was at a record low

This statistic relates to so-called ‘de minimis’ cases. It is a great example of how one needs to look at individual cases (both notified and un-notified) in order to interpret the result.

Might it indicate that the CMA is taking a harder line on arguments put to it that a case is too small to warrant further investigation? Or does it show that the CMA is calling in fewer potential ‘de minimis’ cases? Cases strongly favour the latter.

6. A record high for Phase 1 remedies

The proportion of problematic cases dealt with by remedies at Phase 1 rose to a record high of nearly 40% in 2015/16.

It is striking that, at one point during the year, seven out of ten consecutive SLC decisions (excluding de minimis cases and automatic references) were dealt with through Phase 1 remedy rather than reference to Phase 2, another record under the Enterprise Act as far as I recall.

It is interesting that this is in the context of there being….

7. No Phase 2 prohibitions for the second consecutive year.

This means that the CMA Phase 2 decision-makers have yet to prohibit a merger.

There have, however, been two previous occasions in which there have been no prohibited mergers for two consecutive years. So this one isn’t a record !

2015/16 – CMA Final Phase 2 Merger Decisions

160406-phase 2 decisions 15-16

Looking ahead

Where does this cascade of new merger records leave the CMA, merging firms, competitors and customers?

There is little doubt that the CMA has become increasingly selective in the cases it has chosen to call in for investigation, to a degree that requires highly reliable information being available from merging parties in order to enable the CMA to avoid missing too many problematic deals of reasonable size.

The particular challenge here for the CMA is to make these ‘call in’ decisions accurately and quickly outside of the formal review process, without the range and quality of cross-checks that comes from interaction with competitors and customers when a case is called in for review.

As some have already recognised, for merging parties greater CMA selectivity is clearly relevant to decisions regarding notification. A key question, therefore, is whether the CMA will decide to be as selective in the year ahead. It is worth remembering here that there has already been more than one occasion under the Enterprise Act when tighter case selection has been followed by a move back to a more expansive approach to calling in cases for review.

For customers and competitors greater CMA case selectivity clearly puts a premium on making representations more quickly, rather than waiting for a formal investigation to begin. The much-expanded role for pre-notification also points in this direction, as does the earlier involvement of the Phase 1 decision-maker than used to be the case.

Turning to substantive decisions made during 2015/16 , as the National Audit Office recently put it, “the CMA is expanding the practice of clearing cases with remedies in phase 1 without the need to go for a more detailed and resource-intensive phase 2 review.”

It would be easy, however, to overstate the extent to which the 2015/16 remedies record is due to the CMA’s expanded Phase 1 remedy ambitions. In particular, the increasing level of challenge in many deal valuations (a factor in the low number of deals) seems to me to have had a notable effect on the appetite for regulatory risk and therefore the pattern of deals being brought to fruition (including their suitability for Phase 1 remedies).

Two other questions are also relevant here:

  • To what extent has the way in which CMA plans and manages its casework (now that Phase 1 and Phase 2 are under one roof) affected the pattern of Phase 1 decisions being made?
  • And what has been the impact of certain ‘bold’ Phase 2 clearance decisions on the attitude to remedies at Phase 1, both by parties and by the CMA?

On the whole, my own 2015/16 casework leads me strongly to suspect that the CMA’s record-breaking year for mergers hides patterns that are more complicated than they first appear from the aggregate statistics.

As always, many of the main lessons for interested parties to future mergers come from understanding what has worked well or badly in individual cases during 2015/16, as well as from understanding what the aggregate figures do and do not show.

In both respects 2015/16 should leave plenty of pause for thought for all concerned.

——————————————————-

© Adrian Payne, 2016

The CMA’s first year – Mergers


On March 31st Competition and Markets Authority (CMA) completed its first year. In those 12 months the new agency took 84 Phase 1 and 3 Phase 2 merger decisions.

This article summarises some of the main points of interest. These focus on the pattern of decisions and the analysis underlying them (as opposed to how the changes to the merger control process have worked – which merits an article in its own right).

  1. Case numbers recover

As the graph below shows, Phase 1 case numbers were nearly back up to the annual average under the Enterprise Act, the highest number of cases since 2007/08.

This was despite a sharp reduction in the number of non-notified mergers that the CMA ‘called in’ for investigation –  one reason why the proportion of cases found not to meet the qualifying tests for jurisdiction was well below average (as also shown in the graph).

Is the CMA being more selective than its predecessor, particularly when it comes to smaller transactions (see also point 4)? Or were there simply fewer problematic non-notified deals among the 600-or-so transactions screened by the agency’s Mergers Intelligence team during the year?

Phase 1 Merger Control: 2014/2015

(Please click on the graph to enlarge it)

 150331-Phase 1 stats

There were only three Phase 2 decisions made during the year, the second lowest number in any year under the Enterprise Act and well below the average. This reflects in part the dearth of references to Phase 2 in the CMA’s first six months –  described in my earlier article – together with only two references being made in the OFT’s final six months.

  1. The 80/20 rule rides again

Around 80% of Phase 1 cases were cleared. Nearly 20% were found to give a reasonable prospect of in a substantial lessening of competition. This proportion is very much in line with the average level under the CMA’s predecessor Phase 1 body, the Office of Fair Trading.

  1. No take-off in remedy numbers

As can be seen from the graph there is little sign so far that the CMA’s new arrangements for remedying competition problems at Phase 1 have resulted in significantly more remedies being proposed and accepted, the main objective of the change.

Of this year’s three Phase 2 decisions, one (Breedon Aggregates/Aggregate Industries) involved a divestment remedy and a price cap remedy where divestment was not possible.

  1. Small is beautiful

By contrast more SLC decisions than usual were deemed too small (so called ‘de minimis’ cases) to justify the costs of a Phase 2 enquiry, including one (WGSN/Stylesight) involving a market of over £6m – the largest so far since the de minimis policy was introduced.

In addition to these, four cases were cleared on de minimis grounds without a final decision being taken on their competition merits (Eden/Riders, Vitec/Autocue, Phonak Comfort/Audio and Key Publishing/Kelsey). This is not entirely new but has not happened on this scale before. Is it an approach that will be expanded further?

De minimis arguments were rejected in only two cases: Reckitt/K-Y and InterCity Railways/Intercity East Coast Rail Franchise. In the former, the CMA worried about the fact that similar deals might happen (so-called ‘replicability’) – a contrast to the ‘wait and see’ approach in some other cases.

Overall, the CMA seems to be taking a more expansive approach to de minimis policy. As the new agency has to demonstrate benefits to consumers that are at least ten times its costs (previously it was five times costs) it would not be surprising if the balance of its case portfolio (within mergers and beyond) was to shift.

  1. Horizontally-challenged

Horizontal ‘theories of harm’ remained the overwhelming focus for the CMA’s analysis as usual. However 23 cases also involved so-called ‘vertical theories’. Once again coordinated effects were out of fashion, featuring in only one Phase 1 case (Ballyclare/LHD).

  1. Exit closed. Please try an alternative route.

As usual, exiting asset/failing firm arguments cut little ice with the CMA at Phase 1 – rejected in all 11 cases in which they were put forward (one of the most interesting being Roanza/Enza).

At Phase 2, however, these arguments played a key part in the clearance of the Alliance Medical/IBA deal , despite representations by one of the party’s competitors that they would have bought or supported the target business in the absence of the merger.

  1. Feeling the pressure

‘Upward price pressure’ measures combining ‘diversion’ and financial margin data turned up in only one Phase 1 case (Asda/Coop) this year. This somewhat understates the importance of the price pressure approach, however, as measures of diversion carried weight in numerous cases (see number 12 below) and financial margins continued to be examined, even though (somewhat puzzlingly) that analysis is not always evident in the CMA’s published decisions.

  1. Signs of entry

While entry arguments were often made by parties and (as usual) were mostly rejected or superfluous, there were nevertheless three Phase 1 examples where the CMA gave weight to timely, likely and sufficient entry by rivals (Ballyclare/LHD, Care Monitoring and Management/Pantzel and Coopervision/Sauflon Pharmaceuticals).

In addition the potential for innovation to enhance competition was given a lot of weight in Cirrus Logic/Wolfson.

Rival entry was also said to meet the ‘timely, likely and sufficient’ criteria in the Phase 2 Omnicell/Surgichem clearance decision.

  1. A rare sighting

Countervailing buyer power arguments appear to have played a part in just one Phase 1 case (Herstal/Manroy), though the summary of the decision gives more weight to this than the main text of the decision.

  1. No smoke without smoking guns

Third party views, internal documents and bidding/tendering data (in that order) were particularly important sources of evidence, with problematic internal documents cited especially frequently in the Phase 1 SLC decisions (a notable example being Pure Gym/The Gym).

However…as every year, seemingly hottish documents do not always mean SLC – witness the Multipackaging Solutions/Presentation products case.

On evidence more generally it is worth noting that the CMA used its new information-gathering powers on 23 occasions at Phase 1, applied to third parties as well as to merging parties themselves.

  1. Competitor concerns do matter

Interestingly the Phase 1 SLC decisions strongly tended to feature complaints from both customers and competitors (as compared to the clearance decisions).

Once more the simple and often-heard ‘conventional wisdom’  that competitor complaints tend to encourage agencies to clear mergers turns out to be pretty wide of the mark.

  1. Best bids

One quarter of all Phase 1 cases involved the use of data on the bids and tenders that the parties had been involved in, primarily to examine the degree of diversion of business between the parties and others.

Particularly interesting cases include: Sonoco/Weidenhammer, Ballyclare/LHD, Multipackaging Solutions/Presentation Products, and Xchanging/Agencyport.

Two points stand out:

  • One – bidding analysis is not as straightforward as it may seem.
  • Two – the results (and the reading of past cases involving this type of analysis) need careful interpretation.

To sum up

In summary, while case numbers recovered, there were few if any that offered great potential for a major policy change. Forthcoming decisions look much more interesting in that regard!

Arguably the main questions raised are:

  • whether there will be a  greater use of Phase 1 remedies in future
  • where de minimis policy is heading and
  • whether the CMA is becoming more selective about the non-notified deals it calls in for investigation.

As usual, however, there have been many interesting lessons for parties about to merge in terms of how to assess their merger and the approach the CMA will adopt.

————————————-

Links to cases referred to above can be found on the CMA’s web pages .

 

2014 in Numbers : An Overview of UK Merger Control

150101-Number picture0  – The number of new merger prohibition decisions

1  – The number of appeals to the Competition Appeals Tribunal

3  – The number of Phase 2 decisions – all clearances

4  – The number of Phase 1 cases that investigated coordination between firms

5   –  The number of rail franchise cases examined

  –  The percentage of cases in which merger efficiencies or customer benefits were examined in some detail

13  –  The number of cases opened in August, the peak month of the year for new cases

16  –  The percentage of cases found not to qualify for investigation under the tests for jurisdiction

18  – The percentage of qualifying cases found to result in a substantial lessening of competition at Phase 1

19  – The percentage of cases in which parties argued that one of the businesses involved would exit if the merger did not proceed

20  – The percentage of cases qualifying for investigation under the turnover test

21  – The number of Phase 1 cases involving ‘vertical’ theories of harm

33 – The number of opened Phase 1 cases being investigated at the peak month-end of the year – October

45  – The percentage of cases involving completed deals

50  – The percentage of cases found to harm competition that were referred for Phase 2 investigation

53  – The percentage of cases in which one or more competitors to the merging parties expressed concerns about the deal

54  – The percentage of cases that investigated more than one theory of harm to competition

59 – The percentage of cases in which one or more customers of the parties expressed concerns about the deal

60  – The smallest share of supply for the parties to those deals found to harm competition

78  – The number of pages in the longest Phase 1 decision

82  –  The number of Phase 1 decisions announced

90  – The highest percentage share of supply of one of the parties to a merger that was cleared at Phase 1

6,500,000  – The size (in pounds) of the largest market deemed too small to justify a Phase 2 investigation (under the de minimis criteria)

———————————————————————————————————

Note: Numbers refer to those OFT, CC and CMA cases for which the decisions were announced during 2014 and for which relevant details were published as at 31/12/14.

© Adrian Payne 2015

 

 

Mergers at the CMA: What’s Up?

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

141006-merger-funnel

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:

  1. New timetables and procedures are revising what is possible at Phase 1 (including pre-notification) in some cases.
  2. 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

141003-SLC per cent

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.

Then again…..

 

——————————————————————————————————————–

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.

 

Recent UK merger control: from soft drinks to hard cheese

UK merger control over the past year – and looking ahead

On April 1st the Competition and Markets Authority (CMA) took over UK merger control responsibilities from the Office of Fair Trading and Competition Commission.

In this article I

  • take a high-level look at trends in UK Phase 1 and Phase 2 merger cases in the final year leading up to the new CMA
  • note some developments in assessment methods
  • set out in brief a few of the lessons that future merging parties may want to consider from the past year’s cases – and
  • look ahead to how the changes in the regime might affect future analysis.

Phase 1

The following chart compares the year to the end of March 2014 with the average across all cases in previous years under the Enterprise Act.

The figures focus on those cases that the OFT decided to qualify for assessment under the jurisdictional tests – hence the term ‘qualified cases’.

140508-Oft-stats-13-14

The key points are as follows:

  • Case numbers have been significantly down on previous years
  • The proportion of ‘substantial lessening of competition’ (SLC) findings was in line with previous years
  • No undertakings-in-lieu of reference were accepted, the first time this has happened (though with one remedy still outstanding)
  • Use of the de minimis discretion was in line with past averages
  • There has been much greater use of initial ‘hold separate’ undertakings, something that looks set to continue under the CMA.

The signs are that the low case numbers have continued (though activity seems now to be increasing):

  • Only 19 Phase 1 decisions up to May 1st this year

…. 50% down on the same point last year.

This should come as no surprise. Merger decisions occur with a time-lag and….

  • There were just 99 domestic and cross border transactions involving UK companies (excluding outward disposals) in the final quarter of 2013…

… the lowest number since quarterly figures were first collected in 1987.

  • For 2013 as a whole such deals were down 50% on 2011 (450, compared to 965).

As in previous years, the number of competitors and low increment to share of supply have been the most important factors in clearance decisions. Buyer power and entry arguments were important, however, in a small number of cases.

Phase 2

Of the references to Phase 2 made in the year up to 31st March to date there have been

  • 4 clearances (including a dissenting opinion in one case)
  • 2 SLC decisions involving remedies – one of them a price cap remedy (a pretty rare animal in the UK these days!)
  • and 2 other decisions are awaited.

Assessment methods – some points of interest

Before looking at some of the lessons for future merging parties I note here a few of the points of interest across the year in terms of the analytical approaches and techniques used by the merger authorities. These include:

  • A customer survey containing both a price rise question and a store closure question, enabling direct comparison of results as to how customers respond to each. This is often a bone of contention in cases where only the store closure question is asked and it is assumed that the answers carry across to consumer behaviour in response to price changes. There is only a handful of UK cases in which both questions have been asked.
  • Use of ‘uplifts’ to create ‘extended’ catchment areas, much larger than the often-used ‘80%’ catchment areas. These extended catchments can increase the number of overlaps between parties but, at the same time, can bring additional competitors into the analysis
  • Use of concentration ‘hotspot analysis’ to pick up concerns relating to particular areas/groups of customers within a catchment
  • Development of GP referral analysis methods, including analysis focused on the GPs most likely to switch referral hospitals.

More generally, there has been relatively little use of price pressure analyses this year and merger simulation has been rarely used.

By contrast, many cases have involved the use of ‘catchment area’ analysis and  analysis of internal documents has been important to a number of decisions.

It is worth noting that the new (much-enlarged) CMA notification form for Phase 1 has expanded the set of internal documents that are requested upfront.

Lessons for future merging parties

Within the scope of this article it is only possible to give a brief overview but below I set out some of the lessons for future merging parties drawn from published material on  Phase 1 and Phase 2 cases over the past year.

Many of the lessons have implications for pre-merger planning, both in terms of:

  1. assessing the risk of a deal being referred to Phase 2 and
  2. planning ahead so that the strongest case can be put within the Phase 1 timetable (which is changing under the CMA).

Here are some of the most notable points arising from the 2013/14 cases:

  • Be aware of the dangers of over-estimating rivals’ shares of supply – but try not to underestimate them either, as happened in one case.

– Large discrepancies between the parties’ figures and those obtained by the authorities in their enquiries of customers and competitors can undermine confidence in other material the parties put forward

  • Remember that the set of companies judged to be competitors can differ from case to case, even in sectors that have been examined previously….and many times over.

– This is important in pre-merger planning, in assessing the risks of a merger being referred to Phase 2 and the risk of it being found to be problematic at Phase 2.

  • Bidding data and data on sales won and lost were used across a large number of cases, more frequently than in previous years (though this may be due to the mix of cases rather than an underlying shift in approach).

– Bid data can be time-consuming to assemble so that it is sufficiently comprehensive. Early planning and gathering of material is therefore important.

  • Bear in mind capacity constraints that rivals may have, an important consideration in one of the 2013 references

– It is particularly important to distinguish between ‘theoretical capacity’ (which may be very large but may be costly to deploy in full) and that capacity that it may be realistic and economic to bring on stream.

  • Modelling of the merger impact on comparative tendering costs among rivals can be very powerful, as one clearance case this year showed.

– In some markets the key constraint on prices is the bidder who comes second. The key question is therefore what the merger does – if anything – to that player’s bid.

  • Once again this year, several cases have shown how important it is for parties to engage with the competition authorities if they are planning their own consumer survey work.

– This will become even more important looking ahead given the new merger timetables.

  • Ensure that in comparing branded and private label products – and the extent to which they compete – that the effect of price promotions is properly considered.

– For example, how close might be the price of branded goods that are heavily promoted to the price of private label products that are not?

  • Past failures can be very helpful !… especially if they relate to past attempts by one of the merging parties to enter a market against the other party.

– This helped dampen concerns about the potential for the parties to compete in one case this year.

  • Though on average they raise the probability of a case being seen to be problematic, customer complaints are not of themselves a good predictor of the outcome of a case

– For example, one notable case was cleared this year despite most customers complaining about it. Equally, many cases have been referred to Phase 2 in previous years without there being significant levels of complaint.

  • They may be rare, but successful efficiency arguments are possible when there are real synergies, backed with the right analysis

– as shown in a ‘3 to 2’ merger where plant location and logistics opened up new opportunities for the merged firm to reduce its costs – opportunities that would not otherwise have been possible.

  • Post-merger price increases – projected or actual (in the case of completed mergers) – often cause difficulties but sometimes evidence can be successfully put forward to justify even very large post-merger price increases

– as happened in one completed merger case this year – in which the increases were judged to be investments in quality

  • There appears to be continuing development in the use of ‘de minimis’ policy (i.e. policy that avoids referring to Phase 2 cases that raise significant competition concerns but are thought to be too small to merit further investigation)

– especially in exercising the discretion not to refer cases to Phase 2 in sectors in which similar deals are possible (perhaps even likely) in other local areas.

Looking ahead

Although much will stay the same, the arrival of the CMA brings a number of changes to UK merger control the effects of which will not be clear for some time.

The main changes being made include:

  • New hold-separate powers
  • Much more extensive Phase 1 notification forms
  • The new 40-day statutory timetable for Phase 1 mergers
  • New information-gathering powers
  • Some overlap between the Phase 1 and Phase 2 case teams
  • A new remedies process at Phase 1
  • Access to the Phase 1 decision-maker for merger parties

For the area that I am most often involved in – merger evidence-gathering and analysis – there are many questions that the next year will start to answer, including the following:

  • What will happen to the overall Phase 1 timetable given the need for more pre-notification discussions?
  • To what extent will the changes delay third party enquiries in terms of their place within the overall process? And what effect will any delay have on the risk of new questions emerging late on and the number of cases going to Phase 2?
  • What in turn will the implications be of any change in these areas for the quality of analysis and for decision-making thresholds?
  • To what extent will the new information-gathering powers blur the distinction between Phase 1 and Phase 2 and affect the decision-making thresholds?

And that is to say nothing of the more process-based questions on matters such as ‘stopping the clock’ and remedies where the devil really will be in the detail.

It may take a considerable time for the implications of the changes to become clear, particularly any unintended consequences.

Case circumstances vary considerably so that making judgements on what the changes may mean over, say, the first 10 cases – or even the first 20 – could prove as unreliable as making judgements on SLC trends from a similarly short run of cases (a topic I hope to return to in a future article).

Much more on all this in future merger workshops….

 

© Adrian Payne 2014