|18 May 2018 - 4 June 2018
||Preliminary invitation to comment
||Start of pre-notification period. (*)
(*)As is typical in major merger investigations, the CMA is currently engaging with the Parties in a process of ‘pre-notification’ to ensure that they have provided all the information the CMA requires before a formal investigation can begin. We currently anticipate that this will happen in the coming months. During the pre-notification process, the CMA will clarify and gather the information necessary for its analysis of the merger. More information about the pre-notification process is available in paragraphs 6.39 to 6.48 of the Guidance on the CMA’s jurisdiction and procedure.
18 May 2018: The CMA has today issued a preliminary ‘invitation to comment’, which is an early opportunity for interested third parties to submit any initial views about the impact that the proposed merger could have on competition in the UK.
Publishing correspondence during this inquiry
The CMA takes very seriously the confidentiality of the information it receives during its merger investigations. In certain circumstances, the CMA may be required by law to disclose some of that information (for example, in order to publish the reasons for its decisions). Where this is the case, the CMA will carefully consider:
- the need to exclude from disclosure information whose disclosure might significantly harm the legitimate business interests of the company (or the interests of the individual) to whom the information relates
- the extent to which it is necessary to disclose that information
During its Phase 1 investigation, the CMA will typically only publish interim orders, decisions, and certain information on the case team and timetable. The CMA will not typically publish individual submissions (from merging parties or third parties) or meeting/call notes.
Further information about the CMA’s practice in Phase 1 investigations is provided in paragraph 7.22 of the CMA’s guidance on jurisdiction and procedure. The CMA expects to take the same approach to information received during pre-notification.
During its Phase 2 investigation, the CMA will typically publish a larger body of third party evidence, including responses made by parties to the Phase 2 issues statement and, if appropriate, summaries of other submissions made by third parties, such as through calls or meetings. Before publishing such material, the CMA will first seek to contact the company or individual concerned to confirm what information it considers to be commercially sensitive and should therefore be excluded from publication.
While the final decision on disclosure lies with the CMA, it will consider these representations seriously in light of its legal obligations. If the CMA accepts that certain information should be treated confidentially, it may be possible to avoid disclosure of commercially sensitive information by, for example, anonymising or aggregating that information, rather than excluding it completely.
Further information in relation to the CMA’s practice in Phase 2 investigations is provided in paragraphs 11.25 to 11.32 of the CMA’s guidance on jurisdiction and procedure.
To the extent that a submission (or the substance of a submission) made to the CMA is later made public, the CMA will not generally consider that submission to be confidential. In keeping with its aims to be open and transparent about its work, in this case the CMA intends to publish submissions made to it in connection with the investigation that have been made public (either in full or in substance), as well as any CMA responses to those submissions. Links to these submissions are provided below.
Please send written representations about any competition or public interest to:
Sainsbury’s/Asda merger team
Competition and Markets Authority
CMA staff disclosure