Tag Archives: Phase 1

Twenty Two Too

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Fully understanding the prospects for a UK merger control investigation – whether as an investor, a merging firm, or a merging firm’s rival – depends on how well you interpret the CMA’s stance towards mergers and over what period.

I find that the best-prepared look at the CMA’s track record in merger assessments over both the short- and the longer-term, in order to help evaluate what has changed and what is changing.

And they also recognise that developments in the UK can differ from the more global narratives that tend to dominate a lot of merger control commentary.

This is especially important for investors and companies from outside the UK.

With all that in mind, here’s a quick synopsis of key UK themes from my series of posts looking back at 2022 and putting it in the context of what came before:

Which of these themes is most relevant to your merger in 2023?

According To Our ForFarmers

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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 :

  1. 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
  2. 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
  3. 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.

Late Exit Pass

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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?

More Problematic Than Not

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Number Four in my look back at 2022…..

This was the year in which there were more Phase 1 merger interventions than unconditional clearances (among Phase1 decisions published during the year) – for the first time.

Despite the very low number of published Phase 1 decisions, the number of remedy decisions was well above the CMA average (10 versus 6) and the highest since 2017.

The number of reference-to-Phase-2 decisions was just above the average for previous years (11 versus 10).

Also:

Between 2017 and 2021 the number of references had been more than twice the number of remedies.

In 2022 they were roughly even.

2022 is also, therefore, the year in which Phase 1 remedies came into their own again.

Basement Clearances

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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?

More on this in future posts………..

Much De Minished

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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

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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):

201462
201570
201660
201761
201855
201958
202047
202140
202241

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.

How The CMA Merger Numbers Are Made Up

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There’s been a big overall decline in the percentage of CMA cases cleared unconditionally (at Phase 1 or Phase 2)* in recent years.

It’s been much commented on and interpreted.

But it’s not quite what it seems when you look behind the headline numbers.There are very different patterns when looked at by case type.

In fact, arithmetically at least, the aggregate change is accounted for by just one type of case.

Here’s the overall pattern for 2019 and 2020 cases, with the size of the different elements proportional to the number of outcomes in each category – where

  • green = unconditional clearance at Phase 1 or 2
  • yellow = remedies at Phase 1 or 2
  • red = prohibited or abandoned …….

Source: Adrian Payne analysis of published CMA decisions

It illustrates how important it can be to look behind the aggregate numbers when considering past or potential case outcomes and when interpreting ‘trends’ in the aggregrate numbers.

In one of my next Merger Insight briefings I’m going to be discussing the reasons behind these patterns and what they mean for companies planning mergers.

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(* Percentage of publically-investigated cases. Takes no account of cases the CMA chooses not to investigate publically, on which no meaningful data are published.)

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CMA Phase 2 Decisions: The Long And Short Of It

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There is a lot of interest at the moment as to what governs extension of the CMA Phase 2 timetable and whether extension has been a ‘good or bad sign’ for merging parties.

In my latest Merger Insight briefing yesterday I therefore looked at the Phase 2 cases to date for which the CMA extended the timetable for review – usually by up to eight weeks.

Below is a key chart that informed the discussion.

From left to right it ranks the Phase 2 final outcomes in ascending order of the duration of the Phase 2 process.

Each case is coloured as follows:

  • Black – merger abandoned
  • Green – unconditional clearance
  • Orange – clearance with remedies
  • Red – prohibition

The chart rather explains itself….

 

About a third of Phase 2 investigations to date have been extended. With one or two exceptions these are concentrated in the right-hand third of the chart.

It’s immediately apparent therefore that the proportion of cases unconditionally cleared has been very low for extended cases – less than half that for cases that ran to the usual timetable.

However it’s not all bad news for parties involved in extended cases. Extension can lead the CMA to become comfortable with a relaxation of remedies proposed at the provisional findings stage and enable late-emerging evidence to be explored in full.

Even so – the fact remains that only just over one in five extended cases have ended up being cleared.

Or – to put it another way – over two-thirds of mergers that have been prohibited or remedied at Phase 2 have involved extended investigations.

The other talking point yesterday was the proportion mergers that parties have decided to abandon. But that’s a story for another day….

For details of my free Merger Insight briefings please click here.

 

 

More Merger Remedies Than Ever

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The Competition and Markets Authority has just completed its fourth year.

One particular development stands out, looking at the pattern of outcomes among the 250+ CMA merger decisions since 2014….

More Phase 1 remedies: Fewer Phase 2 investigations

On average, the Competition and Markets Authority (CMA) has accepted between 3 and 4 more remedy outcomes each year at Phase 1 than the Office of Fair Trading (OFT) which had responsibility for Phase 1 mergers until 2014.

At first glance that increase doesn’t look significant…. until one considers that:

  • the average number of Phase 1 remedies under the OFT was only 5 in the first place and that
  • the CMA has been formally considering 30% fewer cases than did the OFT.

The number of references to Phase 2 is on average just over 3 lower each year than it was before the CMA took over responsibility for Phase 2 mergers from the Competition Commission.

Pre-CMA the average annual number of references was 11.

While there is not be a direct one-for-one relationship between the increased average number of remedies and the lower average number of references, a  link would not be too surprising given the CMA’s stated policy of resolving more cases at Phase 1.

Overall, the percentage of problematic Phase 1 cases resolved through Phase 1 remedies, rather than reference to Phase 2, has been more that a third higher in the CMA’s first four years than for any four-year period under the OFT.

What has been the change in the pattern of outcomes at Phase 2?

The reduction in the average number of Phase 2 cases under the CMA reflects, in order of scale of change:

  • fewer mergers being abandoned on reference to Phase 2
  • fewer Phase 2 clearances
  • the near elimination of Phase 2 prohibitions and
  • a lower number of Phase 2 remedy outcomes.

This is consistent with the notion that, if there is some link between more Phase 1 remedies and fewer references to Phase 2, it is the more ‘marginal’ and more ‘fragile’ that may have been most affected.

If so it means that some cases that might have been cleared at Phase 2 are undergoing merger remedies at Phase 1.

This may be one reason why the proportion of cases being unconditionally cleared at Phase 1 or at Phase 2 is sharply lower under the CMA than it was under the OFT. (Another is the CMA’s greater selectivity in which cases formally to investigate.)

How Are Companies Responding?

Judging from conversations during some of my recent merger briefing sessions ,some companies considering or implementing mergers are already paying much closer attention to the potential for a Phase 1 remedy outcome than used to be the case.

This includes thinking harder about the more expansive types of Phase 1 remedy that the CMA has shown itself prepared to consider and accept.

For some it also means attending more to how they shape and scope their transactions and how they measure the degree of merger control risk they are taking on.

There are plenty of lessons merging companies can learn from the CMA’s 34 Phase 1 remedy cases so far – the subject of one of my recent briefings.

In recent months the rate of remedied cases has come back somewhat from its peak. Looking ahead, it will be interesting to see, therefore, whether we have already reached ‘peak Phase 1 remedy’.