Comment on the OFT and Competition Commission Merger Guidelines Review

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Thomas Sharpe QC, Jun 25, 2008

n April 2008, the U.K. Competition Commission and the U.K. Office of Fair Trading launched a joint review of their respective guidelines for the assessment of mergers. Both had started separately, the OFT with a mere 119-page draft document in March 2008. The plan is for the two organizations to produce a single guidance document, consisting of revised and expanded guidance of matters already contained in several publications. The important issue of merger remedies is already the subject of a CC Consultation Draft Guidelines (May 2008). The two organizations pooled their resources with a view to producing draft guidelines for public consultation at the end of 2008, with the aim of issuing definitive new joint guidelines in mid-2009. This is a most welcome development as much has happened since the introduction of the Enterprise Act in 2002. This article intends to summarize briefly some of the emerging issues. The abiding approach, as represented by the many submissions to the CC-OFT Working Party, is for consistency between the two institutions charged with merger control in the United Kingdom, the OFT and CC, for consistency between the U.K. institutions and the European Commission, and for consistency in the application of the relevant economics to merger analysis. This will provide not only a roadmap for the competition authorities but, in a jurisdiction in which there is no compulsion to pre-notify any qualifying merger, guidance to the parties as to the likely attitude of the competition authorities.


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