On 9 February, the Competition and Markets Authority (CMA) announced that it would refer the merger for an in-depth investigation unless Clariant offered acceptable undertakings to address the CMA’s competition concerns regarding the supply of ADF in the UK.
After the initial decision identifying competition concerns, the acquirer has 5 working days in which to offer undertakings to address the CMA’s competition concerns in lieu of reference. As Clariant has not offered undertakings in lieu, the CMA will therefore now refer the merger.
A decision on the merger will be made by a group of independent panel members supported by a case team of CMA staff. The deadline for the final report will be 3 August 2016.
All information relating to the investigation is available on the CMA case page.
Notes for editors
The CMA is the UK’s primary competition and consumer authority. It is an independent non-ministerial government department with responsibility for carrying out investigations into mergers, markets and the regulated industries and enforcing competition and consumer law. From 1 April 2014 it took over the functions of the Competition Commission and the competition and certain consumer functions of the Office of Fair Trading, as amended by the Enterprise and Regulatory Reform Act 2013.
The reference test: under the Enterprise Act 2002 the CMA has a duty to make a reference to phase 2 if the CMA believes that it is or may be the case that a relevant merger situation has been created, or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
Under the Enterprise Act 2002 a relevant merger situation is created if 2 or more enterprises have ceased to be distinct enterprises; and the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million (‘the turnover test’) or as a result of the transaction, in relation to the supply of goods or services of any description, a 25% share of supply in the UK (or a substantial part of the UK) is created or enhanced (‘the share of supply test’).
All the CMA’s functions in phase 2 merger investigations are performed by inquiry groups chosen from the CMA’s panel members. The appointed inquiry group are the decision makers on phase 2 merger investigations.
The CMA’s panel members come from a variety of backgrounds, including economics, law, accountancy and/or business; the membership of an inquiry group usually reflects a mix of expertise and experience (including industry experience).
The inquiry group may extend the 24-week period within which it is required to publish its report by no more than 8 weeks if it considers that there are special reasons why the report cannot be published within that period.
The full text of this decision will be placed on the case page as soon as is reasonably practicable.