UK Merger Control: Finely Tailored but Time for a New Suit?

Abstract

The introduction of the Enterprise Act 2002 formally ended a much-maligned public interest approach to merger control in the UK, oft-criticised for the uncertainty permeated by ministerial decision-making. In its place came a new competition-based test to be applied by independent competition authorities with new powers and resources at their disposal. Despite initial teething problems related to the interpretation of the statute and several instances of fine-tuning to tighten up enforcement powers, the reforms have succeeded in delivering one of the most transparent and business-friendly merger regimes in the world. But new challenges lie in wait. The caseload implications posed by Brexit, heightened calls for public interest interventions, and the novel theories of harm associated with mergers in the digital sector all stand to test the limits of the existing legal and institutional model, such that further fine-tuning and tailoring may no longer be sufficient to yield a mergers system that is fit for purpose. This chapter reflects on key developments in the evolution of UK merger control under the Enterprise Act and, drawing on lessons from the past, comments on the credibility of the agenda for future reform.

Keywords: merger control, competition law

JEL Classification: G34, K21, K40