Guidance

Merger cases if there's no Brexit deal

Published 30 October 2018

This guidance was withdrawn on 31 January 2020

This guidance was published to outline the CMA’s position if the UK left the EU without a withdrawal agreement in place. The government has now agreed a deal with the EU, and this guidance is therefore withdrawn.

Merger cases where the European Commission has reviewed a merger and published a decision before Brexit

If the European Commission has issued a decision before Brexit then, unless the decision is annulled, in full or in part, following an appeal, the UK has no jurisdiction over that same concentration, or in UK terminology, relevant merger situation.

Merger cases where the European Commission is reviewing a merger when the UK exits the EU

If the European Commission has not issued a decision before Brexit then the Competition and Markets Authority (CMA) is no longer excluded by the EU Merger Regulation from taking jurisdiction over the merger and the provisions of the Enterprise Act 2002 apply.

This means that the CMA has jurisdiction to review the merger, and its effects within the UK, subject to the merger control requirements being met (see section 4 in the CMA’s guidance on jurisdiction and procedure (CMA2) and the CMA’s guidance on changes to jurisdictional thresholds for UK merger control).

Where merging parties anticipate that such a scenario is possible, they are advised to engage with the CMA at an early stage (for example, around announcement), particularly where the transaction may raise potential competition concerns in the UK.

In the months prior to Brexit, the CMA will monitor non-notified merger cases, including cases falling under the jurisdiction of the European Commission over which the UK may obtain jurisdiction after Brexit.

Although the CMA would not start a formal investigation until after Brexit, it may suggest to the merging parties that they begin pre-notification discussions with the CMA (which would be expected to follow the procedure set out in Chapter 6 of CMA2), with a view to an investigation commencing after Brexit.

In advance of Brexit, the CMA may also:

• Make informal approaches to merging parties to obtain more information so it can assess whether to start a formal investigation after Brexit. The CMA would seek to ensure that such requests remain proportionate and do not create an unnecessary burden for the merging parties.
• Decide to issue an invitation to comment before Brexit, and therefore before opening a formal investigation where appropriate (for example, where the merger is in the public domain and seeking input from third parties is likely to be useful for the efficient assessment of the case).
• Engage in preparatory analysis of the issues likely to be relevant to the merger in question, including through direct engagement (for example, through written questionnaires and calls or meetings) with the merging parties and third parties.

After Brexit, the CMA may formally investigate mergers notified by the parties or identified by its mergers intelligence function, in which the European Commission has not already taken a decision.

Where a merger may affect competition within the UK and it appears unlikely that a case will be decided by the European Commission prior to Brexit, parties may wish to consider requesting referral of a case to the CMA under Article 4(4) EU Merger Regulation (see paragraphs 18.16 to 18.25 of CMA2).

The CMA may consider requesting a referral under Article 9 EU Merger Regulation (see paragraphs 18.26 to 18.31 CMA2).

If the European Commission does not accept a request for a referral from the CMA, then it will retain jurisdiction to review the case.

Cases where a merger was referred from the European Commission to the CMA before Brexit

The CMA will continue to apply its usual processes in Phase 1 and 2. The timetable for Phase 1 will remain at 45 working days.

Fees if cases notified to the European Commission are independently investigated by the CMA after Brexit

The existing rules for the payment of merger fees will also apply to mergers notified to the European Commission into which the CMA opens an investigation after Brexit.

For more information read:

• the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 SI 2003/1370
• chapter 20 of CMA2
• merger fees payment information (January 2016)

Stay up to date

The UK is leaving the EU. This page will be updated if anything changes.

Sign up for email alerts from the government to get the latest information.