The OFT has used its de minimis discretion not to refer to the CC the acquisition by Atlas Copco of the medical gas division of Penlon Limited.

The OFT found that the parties overlapped in the manufacture of gas equipment and components for hospitals and the provision of installation and maintenance services. The OFT concluded that it is or may be the case that the transaction may be expected to result in a substantial lessening of competition in the manufacture and supply of terminal units (connection points for the user into the medical gas system) in the UK.

The OFT concluded that it believed the annual cumulative size of the market concerned in the UK to be less than £10 million, and it therefore assessed whether it should apply the 'de minimis' exception to the duty to refer. As part of that assessment the OFT found that it did not consider, based on its objective evaluation of the transaction, that undertakings in lieu were 'in principle' available since doubts existed that a clear-cut effective structural remedy was possible. Further, the OFT’s inquiry did not identify any exceptional circumstances which justified a reference to the CC. As such, the OFT considered it appropriate to exercise its 'de minimis' discretion.

Squire Sanders Hammonds advised Atlas Copco on the acquisition, including its submissions to the OFT.