The UK Competition and Markets Authority ("CMA") has a
duty to refer a transaction for an "in depth" phase 2
investigation in instances where it believes that there is a
realistic prospect of a transaction resulting in a
"substantial lessening of competition", subject to
certain exceptions. This includes a de minimis exception
in markets of "insufficient importance", where the costs
involved in investigating the transaction would be disproportionate
to the size of the market concerned.
On 23 January 2017, the CMA launched a public consultation on
possible changes to the de minimis exception. The proposed
changes would increase the upper threshold for markets considered
to be sufficiently important to justify a merger reference from
£10 million to £15 million, and would raise the lower
threshold for markets not considered to be sufficiently important
from below £3 million to below £5 million.
In instances where the size of the market falls between these
two thresholds, the CMA would continue to evaluate, on a
case-by-case basis, the potential harm of the transaction against
the cost of an investigation when assessing whether to make a
The proposed changes are likely to reduce the number of smaller
merger investigations carried out by the CMA, and also provide
smaller businesses with wider scope to self-assess whether a merger
filing to the CMA may be required.1
Stakeholders are invited to provide
feedback on the consultation by 13 February 2017. Further details
can be found here.
1. Note that the UK operates a voluntary merger control
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