Helpful Clarity on Responsiveness and Process of Internal Document Production under New UK CMA Merger Guidance

Helpful Clarity on Responsiveness and Process of Internal Document Production under New UK CMA Merger Guidance


By: Tobias Caspary, Kay Jebelli, Julie Flandrin

Last week, on 15 January 2019, the UK Competition and Markets Authority (the 'CMA') completed its consultation on its draft and published the final version of its Guidance on requests for internal documents in merger investigations (the 'Guidance').

While the Guidance does not change the substantive requirements for notifying parties, it helpfully sets out the CMA's expectations regarding merging parties' internal document production exercises. In this way, it is the first of its kind, explaining (1) what the CMA will consider as responsive documents, both up front and in the context of document requests, (2) its use of mandatory requests, and (3) the detailed procedure under which internal documents should be produced. While the Guidance supplements, but does not replace, previous CMA publications on the matter, it does shift the status quo by emphasising the CMA's desire to increase the use of mandatory document requests in Phase 1 cases. This has implications both on the rigour with which parties must comply with the requests, and the potential penalties for failing to do so (including delayed review and even fines). While the CMA does not expect that the introduction of the Guidance will mean longer reviews in Phase 1, the detailed expectations set out in the Guidance, and the CMA's response to the consultation , along with the increased use of mandatory requests, mean that merging parties will need to take more time preparing UK notification than in the past.

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