The Competition and Markets Authority (CMA) has published final guidance for a situation where the UK leaves the European Union (EU) without a withdrawal agreement (a no-deal Brexit). The guidance sets out how a no-deal Brexit would impact on the way the CMA carries out its role in relation to (among other things) merger control.
The final guidance clarifies the position for mergers notified to the European Commission before the date on which the UK leaves the EU (“exit day”):
- As at present, if the Commission refers the merger to the CMA, the CMA will review the merger and the Commission will not be involved.
- If the Commission issues a decision on a merger before exit day, the CMA will not be able to review the merger unless the Commission’s decision is annulled following an appeal. In other words, the “one-stop shop” will continue to apply.
- If the Commission does not issue a decision on a merger before exit day, the CMA will be able to review the merger with effect from exit day if the UK thresholds are met. The transaction could lead to notifications under both the UK and EU regimes.
After exit day, parties to a merger will need to assess a merger separately under the UK and EU regimes. In practice, this may require an additional merger control review where any UK aspects of a merger would previously have been dealt with by the Commission. This would inevitably be more time-consuming, costly and administratively burdensome than at present.
The guidance also covers the CMA’s powers and processes for anti-trust and cartel enforcement and consumer law enforcement. It will come into effect on exit day if there is a no-deal Brexit.