Platypus
UK Merger Control Analysis
Since 2019
Outcomes from 1 Jan 2019 – 30 November 2024
Since 2022
Outcomes from 1 Jan 2022 – 30 November 2024
Outcomes from 1 Jan 2019 – 30 November 2024
Outcomes from 1 Jan 2022 – 30 November 2024
CMA SLC Decisions (1 January 2019 – 30 November 2024)
CMA SLC Decisions (1 January 2022 – 30 November 2024)
Platypus articles
Pro-growth merger control, or how the CMA learned to stop worrying and love mergers
22 November 2024
Yesterday, Sarah Cardell delivered a speech, announcing a review of the CMA’s approach to behavioural remedies, a new outreach series for investors and startups, and emphasised the steps the CMA was taking to address feedback it has already received on proportionality, predictability, process, and pace. More critically however, the speech marked a significant change of tone in how the CMA speaks about mergers.
In this Platypus post, we examine the concrete actions set out in the speech, the context in which they occur, and what (if any) effect they will have on the outcomes of merger reviews. In short, we do believe we are likely to see more (conditional) clearances in marginal cases, but only time will tell how many, and how rough the ride to get there will be.
In defence of the failing firm?
22 October 2024
A successful “failing firm” defence has been as rare and elusive as a platypus in the wild, owing to the high evidential burden on parties seeking to invoke it. Recently, however, the CMA has cleared two mergers on this basis.
In this Platypus post, we ask what we can glean from recent decisional practice in this area, and whether it signals a change in the CMA’s approach that suggests we might see more of these cases in the future.
The rise of ‘intelligent’ partnerships
6 September 2024
Since late 2023, the CMA has opened five merger investigations in relation to AI partnerships – the cases will give important insights into the CMA’s merger policy, both in terms of the limits (or indeed, breadth) of the CMA’s jurisdiction as well as its approach to substantive assessment in (the most) nascent but fast-moving tech markets. In this post, we summarise the state of play on the five investigations, reflect on why they matter beyond AI, and highlight what we’ll be looking out for in the CMA’s Phase 1 decisions when they come.
The unresolved mystery of the Hydra: assessing merger control risk in the face of parallel transactions
20 June 2024
Competition authorities are in the business of predicting the future. The task of comparing two possible futures – one with, and one without the merger – is hard enough, especially in fast-moving markets. The assessment is even more complex when there is the prospect of another merger in the same market. So how do authorities disentangle multiple possible futures in practice and why does it matter?
Platypus / Rhino - the break-up album
14 February 2024
Three years into their divorce, how are the European Commission and CMA approaching parallel cases? This year has been an important one for parallel review of cross-border mergers - so much so that Platypus and Rhino have teamed up to collate the first official break up album in the EC / CMA love story.
Platypus’ Four New Year’s Resolutions for the CMA
15 January 2024
As Platypus welcomes in the New Year with open arms, so it also welcomes the CMA’s draft revised guidance on jurisdiction and procedure. In our latest post, we recap four of the CMA’s key changes and in the spirit of setting ambitious, but achievable, New Year’s resolutions we set out four additional items on Platypus’s wish list for the CMA for 2024.
What’s the difference between… a competition agency and an angel investor?
21 December 2023
Much like an early stage investor, the CMA is in the business of predicting which nascent businesses or products will get wings. Over recent years, a quest for redemption after perceived under-enforcement has led the CMA to significantly expand the framework within which mergers in innovative markets are considered. In this Platypus post, we consider the CMA’s approach to dynamic competition in recent cases – key among them Adobe / Figma – and the extent to which past performance might be indicative of future results.
The CMA’s Call of Duty: merger process introspection and proposed system reforms
20 November 2023
The CMA’s Sarah Cardell and Martin Coleman gave important speeches on UK merger control today which seek to provide more engagement to merger parties in Phase 2 merger investigations and revise the CMA’s guidance in relation to deals in markets considered too small to warrant in-depth Phase 2 investigation.
These changes promise to materially alter how merger parties will interact with the CMA in complex and important cases going forward.
Three years of Platypus, and five suggestions to improve Phase 2
25 August 2023
The CMA issued a “call for information” seeking feedback on its process for Phase 2 merger reviews. The CMA has invited views on whether there are aspects of the process that could work better – Platypus has a few. In this post, we summarise our top five suggestions for procedural changes that we believe would improve the process for the CMA and merging parties alike.
Is breaking up that hard to do?: taking stock on parallel EU/UK merger reviews since Brexit "freedom"
17 March 2023
The end of January marked two years since the UK regained the post Brexit “freedom” to assess “big-target”, big-ticket global deals that were previously reviewed by the European Commission, giving rise to the possibility of differing merger control decisions by UK and EU authorities. There have since been 20 cases reviewed in parallel by the CMA and EC.
In this Platypus post, we consider the merger control cases that have been reviewed by both the CMA and EC, and what the numbers can tell us on the risk of divergence in practice and what to expect in parallel reviews going forward.
Conscious parallelism: is the new fast-track Phase 2 process a win for multi-jurisdictional remedies deals?
18 January 2023
The CMA has recently concluded its first ‘fast-track’ Phase 2 cases. While the process resulted in significant time savings, the merger parties had to concede all competition concerns identified by the CMA during its Phase 1 assessment, thereby sacrificing any hope of unconditional clearance at Phase 2.
In this Platypus post, we consider whether the fast-track remedies framework eases the friction in the CMA’s Phase 2 review process for global deal-doers and which transactions might find the increased flexibility as particularly attractive in light of increased complexity and ultimately high CMA deal mortality.
Canary Wharf, Not Love Island. Post-Brexit Divergence Ratios: The Prime -Time TV Sequel
18 July 2022
This season finale was not just any storm in a port – and it made for gripping viewing. After an in-depth second series, the European Commission conditionally cleared Cargotec/Konecranes in February 2022. For the British remake, the ending was completely changed: the CMA blocked the deal with a new twist on a now-familiar procedural story.
The CMA confounded audience expectations by clearing Facebook/Kustomer at Phase 1 – the subject of our first divergence post. In this Platypus post, we consider the CMA’s post Brexit divergence and why this rupture was so significant from a comity perspective.
When is a jurisdictional GOAT not good enough? UK deal nexus and the CMA’s expanded hunt for ‘killer acquisitions’ and harmful vertical mergers
1 June 2022
Wearing the iconic section #23 “share of supply test” jersey, the CMA becomes the Michael Jordan of Multi-Jurisdictional merger control – almost unstoppable when motivated. Its superpower is the Greatest Of All Time jurisdictional tests, used to sail over opponents and dunk on foreign-to-foreign “incumbent/challenger” deals. In this Platypus post, we consider the Government’s position that GOAT is not good enough, and that share of supply needs more aerial prowess, but with one toe on British hardcourt – a UK nexus test.
Show me the money: should the extent of debt leverage be part of a competition agency’s merger control analysis?
22 February 2022
The recent acquisitions by financial sponsor investors of two major UK supermarkets have raised concerns by Parliamentarians (including from the head of the Business Select Committee) and in the media, about highly leveraged structures leading to reduced competition in markets.
Platypus now asks the question: is the fact that an acquisition is highly leveraged relevant to a merger review (and should it be?).
Divergence ratios after Brexit. Parallel EU/UK merger reviews one year on
10 February 2022
In the run-up to Brexit, the CMA had made a prediction that parallel reviews of former EUMR one-stop shop cases could mean “an additional 30 to 50 Phase 1 mergers per year”, potentially leading to “half a dozen or so additional Phase 2 cases”. So what does the parallel merger control landscape look like one year after Brexit? The sample size is small, but are there any emerging trends or lessons we can draw out?
Bucharest syndrome: holding onto hold-separates and resisting a mandatory regime
30 November 2021
A quiz for the literarily minded: "How can I escape from this dreadful thing of night, gloom, and fear?" Was it: (a) Jonathan Harker plotting his escape from Castle Dracula; or (b) Platypus on the intricacies of the initial enforcement order or IEO?
We do love to hate them. But as is ever the case, better the devil you know than the devil you don’t… Still, Platypus has some judicious suggestions that would make the IEO process work better for the CMA and for parties alike.
Decisive Influenc-er? The Proposed UK Backstop to Block the Next ‘Facebook/Instagram’
28 October 2021
If the UK Government wishes to press ahead with a new regime to block GAFA mergers that are unlikely to harm competition, then it should consider maximising the legitimacy of developing such a powerful weapon.
Last week, we proposed testing for US and EU support in principle as way of increasing legitimacy. This week, we propose a complementary tool to reinforce this… the British courts. Read on to find out more.
Decisive Influenc-er? The Proposed UK Backstop to Block the Next ‘Facebook/Instagram’
20 October 2021
Sweeping competition policy reform proposals by the UK Government include a new test which would allow the CMA to block a Big Tech merger to be on the safe side — one that is realistically but not likely to be anti-competitive. In this post, Platypus asks whether it is wise for the UK to legislate a unilateral British answer to a global question.
Regulatory Squid Game? The stretched tentacles of UK merger control reform
13 October 2021
The CMA’s expansive interpretation of the current jurisdictional tests has recently been confirmed by the CAT. So why is the Government proposing to stretch the tentacles of UK merger control even further in the name of ‘rebalanced merger control’? What’s left to rebalance? Our latest Platypus post answers these questions and more.
The CMA’s new MAGs – Five things to bear in mind for your next deal
19 March 2021
The CMA’s new MAGs are here to stay. While in many ways the content of the new MAGs simply codifies the approach to merger review seen in recent years, there are a number of important practical points to be aware of going into your next deal.
Bonsai is Beautiful: Market definition in the CMA’s draft Merger Guidelines
12 March 2021
Warning: This post is one for the very small but significant sub-section of subscribers who self-identify to the Venn diagram overlap between real UK merger control aficion… nerds and scholars of ’80s movie references. Check back soon for some more useful practical thoughts on the new MAGs when they are published.
Will Not Sync: The challenge of multi-jurisdictional process and substantive friction post-Brexit
15 February 2021
Does it Fit? Not a bit. The CMA would not have worn the Google / Fitbit remedy, as its CEO Dr Andrea Coscelli made clear in a speech on 9 February 2021. Google must be glad for the EU One Stop Shop while it lasted... A Commonwealth tandem of the UK and Australia might have effected a very different outcome had the deal been announced today. This blog post explores the challenge of multi-jurisdictional process and substantive friction post-Brexit.
Platypus in the Competition Law Journal: The long arm of UK merger jurisdiction
27 November 2020
Platypus team members took a pause from blogging to contribute to the latest issue of the Competition Law Journal, focusing on themes that should be familiar to regular Platypus readers – the CMA’s approach to merger enforcement, the elastic nature of its jurisdiction, and its increasing willingness to intervene in “foreign-to-foreign” deals with limited nexus to the UK.
La Mort Subite. The Case of Holmes vs. Poirot
22 October 2020
Business travel is no longer carte blanche. This last week, Platypus pined for the Eurostar and had to settle for armchair amphibian.
Break fee at Tiffany’s? Invoking failure to comply with regulatory conditionality in broken deals
2 October 2020
This blog post considers the facts of a number of high-profile deals which have involved, since the onset of the pandemic, the seller citing the buyer’s failure to comply with regulatory obligations in subsequent litigation and the lessons these cases have for deal doers.
Deeper dive: cause of deal abandonment and the counterfactual absent a UK (Phase 2) merger review
29 September 2020
Platypus was launched as a weekly internal UK merger control blog in the Linklaters London competition team. Spotting a gap in the market, it introduced the Phase 2 deal mortality rate, and not a prohibition rate, as our most useful measure for tracking CMA merger control outcomes. This internal blog is now the nocturnal Platy-day Night Live, while this external version must adapt to the predator hazards of daylight. Regrettably, this makes daytime Platypus more like rice pudding to PNL’s late-night Vindaloo.
The Phase 2 deal mortality meter: there’s more to death than prohibition
25 September 2020
Platypus was launched as a weekly internal UK merger control blog in the Linklaters London competition team. Spotting a gap in the market, it introduced the Phase 2 deal mortality rate, and not a prohibition rate, as our most useful measure for tracking CMA merger control outcomes. This internal blog is now the nocturnal Platy-day Night Live, while this external version must adapt to the predator hazards of daylight. Regrettably, this makes daytime Platypus more like rice pudding to PNL’s late-night Vindaloo.
"Separate and sovereign” – the risk of divergent outcomes in merger control post-Brexit
23 September 2020
Companies involved in global deals are finding that increased levels of CMA intervention coupled with the imminent end of the European One Stop Shop for the UK component of transactions, mean that they need to factor into their deals the possibility of a CMA review.
In this post we consider the implications of Brexit on merger control, in particular the risk of divergent outcomes for deals involving parallel reviews by the CMA and European Commission.
First Platypus post - introducing Platypus and the UKs merger control regime
20 August 2020
The UK’s merger control regime has remarkable similarities to a platypus: it confounds neat classifications. The answer to basic questions about the UK’s regime is both yes and no - is it voluntary? Is there an objective qualifying threshold? Other aspects of the UK’s unique regime allow the Competition and Markets Authority (CMA) to reach deals which are off-limits to other authorities.
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