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9780199276882

Merger Control in the United Kingdom

by ; ; ;
  • ISBN13:

    9780199276882

  • ISBN10:

    0199276889

  • Format: Hardcover
  • Copyright: 2006-03-23
  • Publisher: Oxford University Press

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Summary

Merger control in the United Kingdom has recently entered a new phase in its development. The advent of the relevant aspects of the Enterprise Act 2002 has been welcomed as a 'depoliticisation' of the regime. The role of the Secretary of State has been all but excised, and the substantivecriteria against which mergers are assessed have been revised to offer formally a competition-based standard. Together with guidance published subsequently, the reforms also prescribe a range of new procedural guarantees for those parties affected under the regime. In addition, the EC mergercontrol regime and in particular the nature of its relationship with the competent authorities of the Member States has been significantly revised.It is against this backdrop that the authors - leading experts with first rate regulatory, practical and academic experience - offer a comprehensive statement of the law, architecture, and procedure of merger control in the United Kingdom; explain the factors pertinent to the economic appraisal ofmergers in a manner accessible to a legal audience; and give invaluable practical guidance on managing the transactional process and regulatory risk.

Author Biography


Dr Andrew Scott is a lecturer at the Norwich Law School (University of East Anglia), and a Competition Editor for the Practical Law Company. He is the Director of the LLM in International Competition Law and Policy at UEA, and a contributing editor of the Encyclopedia of Competition Law. He has held visiting academic positions at the Universities of Trier and Muenster. He has published widely on competition issues, and was awarded the Modern Law Review Wedderburn Prize 2003.
Professor Morten Hviid became Professor of Competition Law at the Norwich Law School (University of East Anglia) in 2004 having previously taught economics at the Universities of Copenhagen, Warwick and UEA. He is a former editor of the Journal of Industrial Economics and the International Journal of Industrial Organization. He has published widely on competition issues, and was awarded the Journal of Economic Integration Daeyand Prize 1999.
Professor Bruce Lyons is Professor of Economics at the University of East Anglia. He is a Reporting Member of the UK Competition Commission and a member of the Academic Advisory Group to the Competition Directorate of the European Commission. He has held visiting academic positions at the European University Institute, Florence and the University of Melbourne. He is a former editor of the Journal of Industrial Economics, an associate editor of Economica, and has published widely on competition issues. Mr Christopher Bright, a partner of Shearman and Sterling LLP, practices in the field of antitrust law in the UK and Europe. He has extensive experience of major cross-border M&A transactions, as well as advising a wide range of sectors on joint ventures, cartels, monopoly infringement, complex contractual arrangements and the European Union public procurement and state aid rules. He is also a leading practitioner in utility regulation, with particular expertise in energy and water sectors. He is experienced in enforcement of antitrust rights in the UK courts. Christopher Bright joined Shearman and Sterling LLP as a partner in 2001. He came from Clifford Chance where he was head of its European competition practice.

Table of Contents

Preface vii
Table of Cases
xxiii
Table of Legislation
xxxiii
Introduction the Structure and Context of Merger Control in the UK
The Structure and Context of Merger Control in the United Kingdom
3(14)
Introduction
1(5)
Evolution of the Substantive Principles
6(7)
The Institutional Architecture
13(12)
The Office of Fair Trading
14(3)
The Competition Commission
17(2)
The Secretary of State for Trade and Industry
19(1)
The Competition Appeal Tribunal
20(2)
Workload
22(3)
Sources of Law
25(1)
Summary
26
I. THE SCOPE OF MERGER CONTROL IN THE UK
Introduction: The Relevant Merger Situation
17(4)
Introduction
1(7)
The Merger Situation
2(1)
Determining the Relevance of a Merger Situation
3(3)
Relationship with the EC Merger Control Regime
6(2)
Summary
8(13)
The Merger Situation: `Enterprises Ceasing to Be Distinct'
21(28)
Introduction
1(4)
The Definition of an `Enterprise'
5(9)
Ceasing to be Distinct
14(47)
Methods of Acquiring Control
15(7)
Common Ownership or Common Control
22(16)
A Lacuna in Orthodox Opinion on Control
38(6)
Miscellaneous Points regarding Ceasing to be Distinct
44(17)
Ancillary Restraints
61
Identification of Ancillary Restraints
64(4)
Ancillary Restraints in Practice
68(2)
Withdrawal of the Exclusion from the Competition Act
70
Determining Relevance: The Threshold Tests
49(16)
Introduction
1(3)
The Turnover Test
4(10)
The Calculation of Relevant Turnover
6(5)
The Calculation of Relevant Turnover in Financial Industries
11(3)
The Share of Supply Test
14(16)
The Distinction Between Share of Supply and Market Share
19(3)
Calculation of the Share of Supply
22(2)
A `Substantial Part of the United Kingdom'
24(6)
Time Limits on Consideration of Completed Mergers
30(9)
The Extra-territorial Reach of the UK Merger Control Regime
39(26)
Relationship with the EC Merger Control Regime
65(24)
Introduction
1(8)
Pre-notification Referrals: The Article 4 Mechanisms
9(14)
Article 4(4): Pre-notification Referral to a National Authority
12(5)
Article 4(5): Pre-notification Referral to the European Commission
17(6)
Referral Back: The Article 9 Mechanism
23(16)
Criteria for Referral
24(11)
Time Limits
35(3)
Article 9 Referral in Practice
38(1)
Referral Forward: The Article 22 Mechanism
39(9)
Criteria for Referral
41(3)
Time Limits
44(3)
Article 22 Referral in Practice
47(1)
Protecting the Legitimate Interests of the State
48(41)
II. THE SUBSTANTIVE APPRAISAL OF MERGERS IN THE UK
Introduction: The Substantial Lessening of Competition
89(10)
Introduction
1(3)
The Substantive Assessment
4(14)
Effects on Competition
5(8)
Countervailing Benefits: The Efficiency Defence
13(5)
Summary
18(81)
Determining the Relevant Market
99(20)
Introduction
1(5)
Demand
6(17)
Derivation of a Simple Demand Curve
7(4)
Factors Affecting Demand: Income
11(1)
Factors Affecting Demand: Availability of Related Goods
12(5)
The Consumer Surplus
17(2)
Elasticity of Demand
19(4)
Estimating the Demand Curve in Practice
23(6)
The Hypothetical Monopolist
29(16)
Weaknesses in the SSNIP Test: The Cellophane Fallacy
37(4)
Weaknesses in the SSNIP Test: Product Differentiation
41(2)
Weaknesses in the SSNIP Test: Market Segmentation and After-markets
43(2)
Supply Side Considerations
45(4)
Summary
49(70)
Horizontal Effects: Non-coordinated
119(28)
Introduction
1(2)
Production
3(5)
Monopoly
8(14)
Durable Goods
18(4)
More than One Firm
22(21)
(Pure) Price Competition
23(3)
Capacity (or Quantity) Competition
26(10)
Product Differentiation, Location and Other Non-price Strategies
36(6)
Lessons from Oligopoly Models
42(1)
Entry
43(6)
Many Firms: Perfect Competition
49(1)
Buyer and Seller Power
50(4)
Applying the Theory to Finding an SLC
54(93)
Additional Note: Monopoly Price Discrimination
59(88)
Horizontal Effects: Coordinated
147(18)
Introduction
1(4)
Collusion
5(2)
An Illustrative Example of the Economics Approach
7(16)
The Stage Game
8(2)
Binding Agreements
10(5)
Repetition
15(8)
When Do Coordinated Effects Arise?
23(8)
What Hinders and What Facilitates Conscious Parallelism?
31(16)
The Intensity of Competition
36(1)
The Number of Firms
37(1)
The Importance of the Future
38(1)
Detection and Punishment Lags
39(1)
Asymmetries
40(3)
Contracts with Consumers
43(1)
The Stability of the Industry
44(1)
Entry Barriers
45(1)
Buyer or Seller Power
46(1)
The Competition Commission Test
47(4)
Awareness of Competitor Behaviour
48(1)
Incentive to Conform to the Prevailing Behaviour
49(1)
Weak Competitive Constraints
50(1)
Summary
51(114)
Vertical Effects
165(18)
Introduction
1(2)
Efficiency Effects
3(4)
The Chicago View
7(9)
No Leverage of Market Power into Competitive Markets
8(3)
Double Marginalization
11(4)
Conclusion on the Chicago View
15(1)
When Vertical Mergers Can Lessen Competition
16(19)
Price Discrimination
17(3)
Input Substitution
20(1)
Foreclosure of Potential Entrants
21(2)
Foreclosure of Existing Rivals
23(4)
Informational Advantages in Bidding Markets
27(2)
Full Exploitation of Market Power when Contracts are Negotiated and Secret
29(2)
Coordinated Effects
31(2)
Avoidance of Price Controls
33(1)
Investment and Innovation
34(1)
Case Studies
35(148)
BSkyB/Manchester United
35(2)
Centrica/Rough/Dynergy
37(2)
BUPA/CHG
39(144)
Indirect Effects
183(18)
Introduction
1(3)
Efficiencies
4(7)
Producer Costs and Customer Convenience
5(3)
Complements and the Elimination of Double Marginalization
8(1)
Efficiencies and Competition
9(2)
Bundling and Tying
11(31)
Efficiency Reasons
14(4)
Hidden Pricing
18(3)
The Chicago View on Leverage
21(3)
Tying and Foreclosure
24(8)
Tying to Extract Maximum Monopoly Profit
32(6)
Price Discrimination and Metering
38(2)
After-markets
40(2)
Effects Not Related to Common Customers
42(159)
Predatory Cross-subsidization
43(1)
Coordinated Effects and Multi-market Contact
44(157)
Quantitative Techniques in Merger Analysis
201(20)
Introduction
1(3)
Data Sources
4(5)
Market Definition and the Hypothetical Monopolist (SSNIP) Test
9(7)
Price Correlation Analysis
10(2)
The Hypothetical Monopolist (SSNIP) Test Based on Consumer Surveys
12(4)
Structural Measures
16(8)
Market Shares
17(2)
Concentration
19(5)
Prediction of Merger Effects
24(197)
Simple Links between Prices and Market Structure
25(2)
Modelling the Post-Merger Incentive to Change Price, Service or Capacity
27(10)
Bidding Markets
37(4)
Coordinated Effects
41(180)
III. THE PROCEDURE AND ENFORCEMENT OF MERGER CONTROL IN THE UK
Introduction: The Two-stage Assessment of Mergers
221(6)
Introduction
1(1)
Respective Roles of the Competition Authorities
2(7)
Choice between Two Models of Assessment
3(3)
IBA Health v Office of Fair Trading
6(3)
Procedural Safeguards in the Merger Control Regime
9(3)
Summary
12(215)
The Office of Fair Trading and Referral Decisions
227(44)
Introduction
1(5)
Process at the Office of Fair Trading: Advice in Advance of Notification
6(13)
Confidential Guidance
8(6)
Informal Advice
14(4)
Pre-notification Discussion
18(1)
Process at the Office of Fair Trading: Notification
19(21)
Notification: Voluntary Statutory Pre-notification Procedure
24(7)
Notification: Informal Submission
31(3)
Notification: Proceeding Without Clearance
34(6)
Process at the Office of Fair Trading: Staged Review
40(17)
Preliminary Assessment
41(3)
Issues Letter and Hearing
44(3)
Case Review Meeting
47(3)
Decision Meeting
50(1)
Publication of Decisions
51(6)
Powers of the Office of Fair Trading
57(11)
Interim Enforcement Measures
58(3)
Requests for Additional Information
61(7)
Miscellaneous Aspects of the Office of Fair Trading Review
68(21)
Consultation of Third Parties
69(7)
Confidentiality of Information
76(5)
Contemporaneous Mergers
81(2)
Merger Fees
83(6)
The Referral Decision
89(182)
The Duty to Refer
90(14)
Exceptions to the Duty to Refer
104(5)
Review of the Referral Decision
109(162)
The Competition Commission and Substantive Decisions
271(28)
Introduction
1(5)
Commission Personnel
6(5)
The Inquiry Group
7(3)
The Remedies Standing Group
10(1)
Investigation Process
11(43)
Assessment Timetable
18(8)
Information Gathering and Assessment
26(12)
Statement of Issues
38(3)
Oral Hearings
41(5)
Provisional Findings
46(4)
Final Report
50(4)
Miscellaneous Aspects of the Commission's Investigation
54(245)
Implementation of Interim Undertakings and Orders
55(8)
Investigatory Powers
63(3)
Confidentiality
66(4)
Cancellation of a Reference
70(1)
Judicial Review of Substantive Decisions
71(228)
The Agreement of Merger Remedies
299(28)
Introduction
1(4)
Reprise: The Nature of Remedies
5(26)
Identifying Appropriate Remedies
8(6)
Illustrative Use of Remedies
14(16)
Statistics on Recent Practice
30(1)
Procedure for Agreeing Undertakings in Licu Office of Fair Trading
31(12)
Assessment Timetable where Remedies are Involved
33(2)
Discussion of Possible Remedies
35(3)
Consultator on and Confirmation of Proposed Remedies
38(4)
Enforcement of Undertakings in Lieu
42(1)
Procedure for Determining Final Remedies: Competition Commission
43(284)
Interim Undertakings and Orders
45(1)
Determination of Remedies
46(8)
Implementation and Oversight of Remedies
54(273)
The Competition Appeal Tribunal and Judicial Review
327(18)
Introduction
1(5)
Role of the Competition Appeal Tribunal in Section 120 Review
6(23)
Procedural Impropriety
11(7)
Illegality and Objective Justification
18(6)
Irrationality
24(5)
Procedural Aspects of the Review Function
29(16)
Decisions Subject to Review
30(1)
Timing of an Application
31(3)
Standing to Make an Application
34(2)
Forum of Proceedings
36(2)
Expert Evidence
38(3)
Interim Relief and Remedies
41(2)
Costs
43(1)
Appeal
44(1)
Appeals in Relation to Penalties
45(300)
Managing Risk in the Regulatory Process
345(16)
Introduction
1(1)
Preparatory Issues
2(8)
Early Identification of the Substantive and Commercial Issues
3(2)
The Parties' Attitudes Towards Risk
5(5)
Transaction Documents and Relevant Terms to be Considered
10(24)
Filing Obligations
11(1)
Conditions Precedent
12(7)
`Efforts' Obligations
19(3)
Termination Provisions
22(2)
Cooperation
24(1)
Obligation to Inform and Involve
25(1)
Break Fees
26(1)
Business as Usual Covenant
27(1)
Access Provisions
28(1)
Compliance with Law
29(1)
Restrictive Covenants and Ancillary Agreements
30(2)
City Code on Takeovers and Mergers
32(2)
Extra-contractual Arrangements
34(1)
Confidentiality Arrangements
35(6)
Confidentiality of Communications Between Each Party and its Advisers
36(2)
Confidentiality of Communications Between the Parties
38(2)
Confidentiality vis-a-vis the Regulatory Agencies
40(1)
Timetable
41(1)
Remedies
42(1)
Management of Multi-jurisdictional Filings and Timetable
43(318)
IV. SPECIAL CASES IN UK MERGER CONTROL
Introduction: The Exceptional Character of Some Mergers
361(4)
Introduction
1(8)
(Special) Public Interest Cases
2(3)
Mergers in the Media Industry
5(2)
Mergers in the Water Industry
7(2)
Ancillary Controls
9(1)
Summary
10(355)
Intervention by the Secretary of State: (Special) Public Interest Cases
365(8)
Introduction
1(4)
Public Interest Cases
5(8)
Intervention by the Secretary of State
6(1)
Office of Fair Trading Report
7(1)
The Secretary of State's Reference Decision
8(2)
Commission Investigation
10(1)
The Secretary of State's Remedies Decision
11(1)
Judicial Review of Public Interest Decisions
12(1)
Special Public Interest Cases
13(360)
Intervention by the Secretary of State: Mergers in the Media Industry
373(26)
Introduction
1(9)
Scope of the Media Public Interest Rules
10(8)
The Modified Share of Supply Test
13(1)
Identification of a Newspaper or Media Merger
14(4)
Procedure for Consideration of Media Public Interest Cases
18(22)
Informal Advice and Confidential Guidance
19(4)
Notification
23(2)
Intervention by the Secretary of State
25(4)
Office of Fair Trading and Ofcom Reports
29(3)
The Secretary of State's Reference Decision
32(3)
Commission Investigation
35(2)
The Secretary of State's Remedies Decision
37(2)
Judicial Review of Media Mergers Decisions
39(1)
The Decision to Intervene in Media Mergers
40(7)
Assessment against the Media Public Interest Considerations
47(352)
Accurate Presentation of News
50(2)
Free Expression of Opinion
52(6)
Sufficient Plurality of Views
58(8)
Sufficient Plurality of Control Over Media Outlets
66(4)
Quality and Breadth of Appeal of Broadcasting
70(1)
Genuine Commitment to Broadcasting Standards
71(328)
Mergers in the Water Industry
399(16)
Introduction
1(3)
Scope of the Water Merger Control Regime
4(5)
Procedure for the Consideration of Water Mergers
9(5)
Substantive Assessment of Water Mergers
14(12)
General Regulation of the Water Industry
16(4)
The Competition Commission's Assessment
20(6)
Remedies
26(389)
V. CONCLUSION: THE FUTURE OF UK MERGER CONTROL
The Future of UK Merger Control
415(166)
APPENDICES
Relevant Statutes
Enterprise Act 2002 (Parts)
423(114)
Communications Act 2003 (Parts)
537(10)
Relevant Guidance
Summary of Office of Fair Trading and Competition Commission Guidance
547(2)
Schematic Diagrams of the Merger Control Process
Typical Shape of a Competition Commission Merger Inquiry
549(2)
Procedure under Article 4(4) ECMR
551(2)
Procedure under Article 4(5) ECMR
553(2)
Procedure under Article 9 ECMR
555(2)
Procedure under Article 22 ECMR
557(2)
Standard Forms
Merger Notice
559(8)
Template for Interim Undertakings (Competition Commission)
567(4)
Form RS: Reasoned Submission pursuant to Article 4(4) and (5) ECMR
571(10)
Bibliography 581(6)
Index 587

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