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Sheila Tormey, Jun 25, 2008
The Draft Procedural Guidance reflects the OFT’s increased concern with the difficulties it faces in reviewing completed mergers. Because notification under the U.K.’s merger control regime is voluntary, parties may complete and implement mergers without notifying the OFT or, where a notification has been made, before the OFT has issued a decision. While the “light touch” nature of the voluntary regime is considered desirable by many, it means that OFT and the CC face the challenging task of reviewing completed mergers where integration between the businesses has already taken place. The OFT’s desire to preempt this situation by encouraging notification of all mergers which are likely to give rise to competition concerns and, where this is not the case, by detecting and imposing “hold separate” undertakings on such transactions at an early stage, is a strong theme throughout the Draft Procedural Guidance. A further theme is the OFT’s increased use of Undertakings in Lieu (UILs) to clear transactions at first phase rather than refer them to the CC. This article highlights the key amendments to the OFT’s guidance in the context of these observations.