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This article concerns BIS's analysis of the UK merger control regime in its 2011 Consultation and its 2012 Response, with a particular emphasis on the proposal to change the UK merger control regime from voluntary (ie qualifying mergers can complete without approval) to mandatory with suspensory effect (ie qualifying mergers would need to be approved before they are implemented). It considers the three specified concerns identified in the Consultation, which ostensibly arise from the voluntary regime, namely: (1) the concern that some potentially anti-competitive mergers were escaping review; (2) the concern that the OFT/CC's ability to impose effective remedies was impaired by the fact that some integration had already occurred at the point at which remedies were to be imposed (commonly referred to as the ‘unscrambling the eggs' problem), and (3) the concern that the merger control process was not streamlined. It also examines whether the decisions adopted by BIS address the identified concerns and argues that the preliminary indications are that either the examination of the issues has not been robust (in particular as regards the issue of whether potentially anti-competitive mergers are escaping review and if so, whether that is a significant problem) or that the objectives have not been achieved (the review period is now longer and it is difficult to foresee the OFT/CMA's new remedy powers being entirely effective at unscrambling the eggs). Its conclusion is that BIS seems to have missed a golden opportunity properly to assess whether the UK regime is indeed ‘best in class'.
To read the rest of this article, see Competition Law Journal: , Issue 2, Articles (link for online subscribers who have already logged in click here).
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