Market Standards Trend Report

Trends in EU/UK parallel investigations post-Brexit

In collaboration with

Background and approach

This trend report provides a high-level overview of key data points in relation to parallel merger investigations that have been carried out by the Competition and Markets Authority (CMA) and the European Commission (Commission) since the end of the Brexit transition period on 31 December 2020 (Brexit).

More specifically, the report examines the following issues:

  • rates of divergent outcomes in parallel investigations
  • analysis of parallel review cases involving remedies or prohibitions
  • key timing statistics in parallel investigations
  • how the parallel merger control landscape tallies with the CMA’s predicated case load four years post Brexit

The report offers market commentary from leading experts on how the CMA and the Commission have approached parallel cases in the four years since Brexit, as well as some general thoughts on what to expect for parallel reviews in 2025 and beyond.

The percentages included in this report have been rounded up or down to whole numbers, as appropriate. Accordingly, the percentages may not in aggregate add up to 100%. The final date for inclusion of developments in this report is 31 December 2024.

Outcome statistics

Unsurprisingly, most parallel cases have led to consistent outcomes between the CMA and Commission decisions.

Since Brexit, 39 mergers that the CMA examined also faced a parallel review by the Commission. This represented 21% of the CMA’s total case load during this period.

Of the 39 parallel review cases completed, 25 (64%) involved cases resulting in the same outcome.

These 25 cases can be broken down further into the following categories:

  • 16 (64%) cases with identical outcomes involving unconditional clearances at phase 1
  • 9 (36%) cases with identical outcomes other than unconditional phase 1 clearances
Given that the UK regime is in theory voluntary, it’s interesting there are so many cases with identical outcomes involving unconditional clearances at phase 1. This suggests that buyers were taking a conservative approach in many cases and filing even when there did not appear to be any real substantive issues and/or that the CMA was requiring filings in such cases. This is perhaps unsurprising given the reputation of the CMA as a difficult merger control regulator with expansive jurisdiction and wanting to impose itself post-Brexit.
Matthew Hall, Partner, McGuireWoods

Identical outcomes – other than unconditional phase 1 clearances

9 (36%) of the 25 cases reached identical intervention outcomes, excluding phase 1 clearances.

Broken down more granularly:

  • 4 (44%) of these cases were conditionally cleared at phase 1
  • 4 (44%) were abandoned either at phase 1 or following competition concerns expressed at phase 2 by the CMA or the Commission
  • 1 (11%) of these cases was unconditionally cleared at phase 2

Identical outcomes – unconditional phase 1 clearances

16 (64%) of the 25 cases resulting in the same outcome involved unconditional clearances at phase 1.

Diverging outcomes

14 (56%) of the 25 cases resulted in divergent or at least non-identical outcomes.

These may not compare like with like unless the geographic markets are wide and/or competitive conditions in the two jurisdictions are the same. In other words, there may be real substantive issues in one jurisdiction and no real issues in the other. That will inevitably lead in many cases to divergent outcomes.

The Vodafone/CK Hutchison JV case is an example of not comparing like with like. The JV would not be active in the EEA, while Booking Holdings Inc/eTraveli Group AB is an example of different competitive conditions.

The CMA then accepted UILs and approved closing of the Microsoft/Activision Blizzard in October 2023. This is a unique case and unlikely to be repeated. Today, the CMA is likely to accept the remedies originally offered by MSFT instead of going through the 'amended transaction' route.
Matthew Hall, Partner, McGuireWoods
Some of the divergence in parallel merger reviews since Brexit can be explained by different market structures and competitive dynamics across the jurisdictions.  Amazon/iRobot and Booking/E-Traveli are two  cases commonly cited by agencies as examples of the differing demand patterns that can exist in the same product markets between the EU and UK.

Depending on how the executive in each jurisdiction reacts to the trade policy promulgated by the Trump administration, divergent market conditions in the UK and the EU may, in future, impact merger reviews across entire industries not just in specific, individual cases if, for example, one jurisdiction is targeted with tariffs while the other is not, or even if the levies themselves differ.

Furthermore, President Trump’s transactional approach to foreign policy may mean that a price is put on clearance in strategic deals involving US businesses. Cases involving critical technology (such as NVIDIA’s 2022 attempted acquisition of Arm, abandoned 12 weeks into the CMA’s Phase 2 review) may be the type of case that, in future, the Trump administration may intervene in, given the strategic and geopolitical importance of critical technologies. The relative willingness of the UK and EU to accede to such demands may become a new cause of divergent outcomes for global deals..
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison.
In the draft strategic steer, the government tasked the CMA specifically with “supporting growth and international competitiveness in the industrial strategy’s 8 key sectors” which the government identifies as driving the “growth mission.” One of these strategic sectors is digital and technologies, presumably encompassing AI. The CMA has, since the launch of Chat GPT in November 2022, been taking a close interest in emerging AI markets, particularly for foundation models. It has looked at a number of AI partnerships, comprising minority investments and acqui-hire arrangements in significant depth to consider whether merger control thresholds were met. The CMA’s most high profile AI partnership review to date, is that of Microsoft’s $13bn investment in Open AI. The CMA pored over it for some 15 months before deciding that it did not have jurisdiction. Moreover, smaller parties in AI partnerships have commented on the burden of being subject to an extended and detailed review, even before jurisdiction has been established. We know from the CMA’s decisions in these cases that some have involved extensive document disclosure exercises before jurisdiction has been established and that the CMA has used the reviews as a means to learn more about AI investment. It will be interesting to see if the CMA reduces the intensity of its scrutiny of this strategic sector given the comment in the UK Government’s draft Strategic Steer that the CMA 'should take particular care to ensure growth and innovation benefits are prioritised, including through supporting the government in delivery of the AI opportunities action plan'.  The AI Opportunities Action Plan talks about a “pro innovation” approach to regulation and the “need for clear rules [to] provide clarity to business so they have the confidence to invest and bring new products to market”.  More generally, the UK (and Europe more generally) has failed to keep pace with the scale of US and Chinese investment and the UK Government recognises that intra- and inwards UK investment is critical.

There has been significant divergence in approach in this area to the extent that the Commission does not have call-in powers and has a higher threshold for jurisdiction. It has not been able to scrutinise these minority interest AI partnerships to the same extent, particularly since the post-Illumina/Grail overturning of its over-extension of Article 22 to secure jurisdiction over below-threshold mergers via Member State referrals.
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison

Parallel reviews involving remedies and prohibitions

Of the 39 completed parallel review cases, 16 have resulted in transactions being cleared subject to remedies or prohibited by one or both regulators. As such, approximately 41% of all completed parallel investigations have involved remedies or a prohibition.

Of the 16 completed remedies cases, only 4 (25%) resulted in identical outcomes:

  • S&P Global/IHS Markit
  • Parker-Hannifin Corporation/Meggitt
  • Ali Holding/Welbilt
  • Bouygues/Equans

3 (19%) further cases had the same intervention outcomes:

  • Sika AG/MBCC Group
  • Korean Air/Asiana Airlines
  • Hitachi/Thales

However, 9 (56%) of the 16 completed remedies cases resulted in either:

  • divergent outcomes (Veolia Environment/Suez; Cargotec Corporation/Konecranes; Microsoft/Activision Blizzard; and Booking Holdings/eTraveli Group), or
  • at least non-identical outcomes (Vodafone/CK Hutchison JV; ALD/LeasePlan; Meta/Kustomer; Broadcom/VMware; and Cochlear/Oticon)

This represented a divergence ratio of approximately 56%.

Type of remedies

The beside table sets out the type of remedies imposed by the CMA and Commission in the 16 completed cases that have involved commitments.

Of the 16 completed cases involving remedies, the table illustrates that structural remedies remain far more common than behavioural remedies.

At the UK level, of the 9 out of 16 completed cases in which the CMA conditionally cleared the relevant transaction, behavioural remedies were only imposed in three (33%) cases (Bouygues/Equans; Vodafone/CK Hutchison JV; and Korean Air/Asiana Airlines).

At the EU level, the Commission accepted remedies in 13 of the 16 completed cases and prohibited 1 of the transactions (Booking Holdings/eTraveli Group). However, it accepted behavioural remedies in 3 (23%) of the transactions (ALD/LeasePlan, Microsoft/Activision Blizzard; and Broadcom/VMware), although one of these cases (ALD/LeasePlan) involved the Commission accepting hybrid remedies.

MSFT/Activision was also effectively behavioural. Interesting that despite professed antipathy to behavioural remedies, the CMA has accepted this number (even excluding MSFT).
Matthew Hall, Partner, McGuireWoods

Diverging approaches to remedies

In September 2023, Lexis+® UK, MLex and Caselex published a joint report analysing the diverging approach to remedies in parallel cases: Merger remedies: EU/UK divergence in a post-Brexit world? | LexisNexis.

The 2023 Report found (as of the date of writing) that of the 12 completed cases involving remedies:

  • 6 (50%) involved situations where the CMA and Commission diverged and reached different substantive conclusions
  • 3 (25%) arrived at identical outcomes
  • 2 (17%) involved ‘amicable’ splits where the CMA and Commission cleared the transactions at phase 1, but where the scope of the remedies package accepted differed to address each regulator’s competition concerns
  • 1 (8%) involved an 'amicable' split where the regulators approved the transaction with remedies. However, their processes diverged

Since the publication of the 2023 Report, there has been 3 further completed parallel cases involving remedies (Vodafone/CK Hutchison JV; Korean Air/Asiana Airlines; and Cochlear/Oticon). Of these 3 cases:

  • 2 (67%) involved situations where the CMA and Commission diverged and reached different outcomes
  • 1 (33%) involved an ‘amicable’ split where the CMA and Commission ultimately cleared the transactions, but where the scope of the remedies package accepted differed

As is shown in the report we have already seen a steady increase in the CMA’s preparedness to consider behavioural remedies over the last few years, culminating in its unprecedented decision in Vodafone/Hutchison to accept that rivalry-enhancing efficiencies could be secured via remedies that seek to hold the parties to their network investment commitments. The CMA's merger remedies review review highlights the case as an example of a remedy that addresses the timeliness, likelihood and/or sufficiency of rivalry enhancing efficiencies and is seeking evidence on how similar remedies should be evaluated and designed, suggesting a willingness to continue in this vein in appropriate cases.

The Commission, meanwhile, has a strong preference for structural remedies, although has accepted behavioural remedies in certain cases (including Microsoft/Activision and in the telecoms sector). However it has expressed scepticism about remedies to secure efficiencies such as in Vodafone/Hutchison and it remains to be seen if this position will change. The Commission – unlike the UK – has the option to enable consolidation for  scale through deepening the single market, so that cross-border consolidation no longer creates concerns about lack of competition in national EU markets. Indeed deepening the single market as a mechanism to achieve greater competitiveness and economic growth is a clear objective in the Commission’s recent Competitiveness Compass. Because single market reforms cannot be achieved in the same timeframe as a shift in merger remedy policy, we may see divergences between UK and EU merger outcomes flowing from a difference in appetite for novel remedies based on investment, innovation or other growth-driving considerations.
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison

Cases with identical outcomes, but different remedies

Korean Air/Asiana Airlines

In Korean Air/Asiana Airlines, the CMA and the Commission both conditionally cleared the transaction but imposed different remedies to reflect their respective concerns.

In the UK, the CMA accepted behavioural undertakings relating to slots at London Heathrow Airport and Incheon International Airport near Seoul, which would facilitate Virgin Atlantic Airway’s entry on the routes.

In contrast, the Commission imposed more extensive remedies. To address concerns in the cargo sector, Korean Air was required to divest Asiana’s global cargo freighter business. On the passenger side, the Commission required Korean Air to enable T’Way (a rival South Korean airline) to start operations on four overlap routes by providing necessary assets. Notably, the Commission went a step further than the CMA by requiring that T’Way must begin operating on the routes before the merger could be completed.

Ultimately, although the CMA and Commission were aligned in their substantive concerns and overall outcome, the differences in their remedy packages reflect the divergent scope of the parties’ operations in the UK and EU. The Commission’s more extensive remedies were necessitated by the broader range of routes and markets affected within the EU.

The UK adopted the usual airlines remedies of airport slots. In contrast, the Commission’s decision reflects a growing skepticism with regard to slot remedies in the airline sector. Until recently, slot transfer remedies were considered standard commitments in airline cases. With growing difficulties of implementing slot remedies (and finding suitable remedy (slot) takers) this decision suggests that the Commission increasingly demands guarantees that the identified competition concerns are effectively remedies on the routes concerned.

Cases with diverging outcomes

There were two cases in which the CMA and Commission diverged and reached different substantive conclusions (Vodafone/CK Hutchison JV and Cochlear/Oticon).

Vodafone/CK Hutchison JV

In one of these cases, Vodafone/CK Hutchison JV, divergent conclusions were reached due to differences in national markets.

The CMA’s investigation—which ultimately cleared the transaction subject to behavioural remedies—centred on the potential for an SLC in the UK retail and wholesale mobile telecommunications markets. The CMA found that reducing the number of mobile network operators from ‘4-3’ could lead to higher prices, reduced service quality, and less favourable terms for Mobile Virtual Network Operators (MVNOs). To address these concerns, the CMA required Vodafone and Hutchison to commit to a legally binding investment plan and imposed temporary protections for retail customers and MVNOs.

In contrast, the Commission’s investigation—which ultimately unconditionally cleared the transaction—was narrower, focusing on whether the transaction would lead to coordination between Vodafone and Hutchison in the Irish market. The Commission concluded that the merger would not increase the risk of coordination, as the joint venture would be ring-fenced from the parent companies' activities in Ireland. The Commission did not identify any significant competition concerns in the UK market, as this was outside the scope of its review.

This is a very interesting outcome and unexpected (e.g. the CMA has oreviously argued against a 4 to 3 mobile merger; O2 and Three in 2016). The case is arguably the first hint of the CMA’s reaction to the Government’s “growth agenda”, approving the deal on the basis of behavioural remedies only, although there are some special circumstances (not least that Ofcom can monitor the remedies). Case shows that evidence of efficiencies and customer benefits will now be considered seriously and deals that promote investment and growth are more likely to be cleared. Those are key lessons going forward not least due to subsequent events including the government’s draft strategic steer to the CMA.
Matthew Hall, Partner, McGuireWoods

Cochlear/Oticon Medical

This leaves one final transaction—Cochlear/Oticon Medical—which, although appearing to involve a divergent outcome, doesn’t seem so far apart when analysed in further detail.  

At the UK level, this transaction was partially prohibited by the CMA after a phase 2 investigation. At the EU level, the transaction was referred to the Commission under Article 22 EUMR by 13 Member States. However, by the time the referral occurred, the CMA had already partially prohibited the deal. As a result, the parties only notified the Commission of the transfer of Oticon Medical's cochlear implant business, which the CMA had already cleared.

This case illustrates how the CMA’s intervention prompted a restructuring of the deal submitted to the Commission. It remains unknown whether the Commission, like the CMA, would have identified issues in the bone conduction solutions market and blocked that part of the transaction. However, both the CMA and Commission shared the view that the cochlear implant business raised no competition concerns.

Timing considerations

This section explores key timing metrics in parallel investigations since Brexit. More specifically, it focuses on the following issues:

  • the average duration of phase 1 and phase 2 parallel investigations
  • the average duration of phase 1 and phase 2 parallel cases involving remedies and/or prohibitions
  • the sequence of notifications – ie which authority was notified first

The Commission has a 25-working day deadline for its phase 1 review, extended to 35 working days if remedies are offered. In contrast, the CMA has a longer 40 working day phase 1 period, followed by additional days for remedies decisions. The two authorities’ ‘standard’ phase 2 statutory review periods also differ (24 weeks at the CMA vs approximately 18 weeks in the EU) but both are subject to extensions and ‘stop the clock’ decisions.

Sequence of notifications

 Analysis of notification sequences in the 39 competed parallel investigations reveals that the CMA was the first authority to launch a phase 1 (67%) investigation in 26 cases. This might reflect the fact that the merger review process is longer in the UK than the EU.

Phase 1 parallel cases

The above table illustrates that the Commission consistently outpaced the CMA in resolving phase 1 parallel cases, with an average duration of approximately 39 working days compared to the CMA’s approximately 60 working days.

The CMA is  under pressure from the government to reduce the periods and has responded. We can expect shorter timeframes and less intervention.
Matthew Hall, Partner, McGuireWoods

Phase 2 parallel cases

The gap increased in phase 2 parallel cases. The Commission took on average approximately 213 working days to issue phase 2 decisions, whereas the CMA took significantly longer, averaging approximately 305 working days.

Parallel phase 1 and 2 investigations involving remedies/prohibitions

In phase 1 and phase 2 parallel cases involving remedies or prohibitions, the CMA exhibits longer timelines across the board. The Commission took on average approximately 108 working days to issue decisions in such cases, whereas the CMA took on average approximately 239 working days.

With its Strategic Steer, the Labour government has publicly tasked the CMA with “supporting and contributing to the overriding national priority of this government – economic growth” through the enhancement of “the attractiveness of the UK as a destination for international investment.” The CMA’s “4Ps” strategy announced in November 2024 put an emphasis on pace, predictability, proportionality and process. This has now been fleshed out with proposals for concrete change. Procedurally the CMA will streamline its RFIs and published decisions in an effort to reduce pre-notification to an average of 40 working days (compared to 65, currently) and straightforward Phase 1 reviews to 25 working days (compared to 35, currently). These are timelines which the CMA managed to hit, on average, in previous years.  The  more condensed  Phase 1 timetable will potentially bring the CMA’s review process into better alignment with the Commission’s 25 working day Phase 1 deadline. Parties will always welcome a parallel and aligned timeline, although this does not address the uncertainty of when the agency will actually start the statutory clock. This reduced target, however, is only for straightforward Phase 1 reviews, therefore,  it may well remain the case that the Commission outpaces the CMA in more complex cases, including where remedies are required.   In addition, the CMA and government have acknowledged concerns from businesses regarding the particular uncertainty of the 'material influence' and 'share of supply' tests. Consultation on legislative changes to jurisdiction updated CMA guidance are both promised for consultation in June.
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison

The CMA's merger caseload

In the run-up to Brexit, the CMA stated that it was planning extensively for the UK’s departure from the EU and that Brexit would have the effect of dramatically increasing the CMA’s caseload.

In 2020, in preparation for Brexit, the CMA made a prediction that parallel review of former EUMR one-stop 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’.

The CMA’s above predictions have not materialised. In 2021, 13 cases were opened. In 2022, 8 cases were opened. In 2023, 11 cases were opened. In 2024, 7 cases were opened.

This would suggest that the Brexit effect was overstated, and the CMA’s merger caseload has not increased as much as expected. These 39 cases represented 21% of the CMA’s docket of 183 phase 1 decisions taken by the CMA since Brexit.

In terms of phase 2 cases, the CMA referred 2 cases in 2024, 6 in 2023, 1 in 2022 and 2 in 2021. Other than 2023, the CMA’s predication regarding the number of phase 2 parallel cases has not occurred.

The Chief Executive of the UK Competition & Markets Authority (CMA), Sarah Cardell, has recently signalled that going forward the CMA is likely to scrutinise fewer global deals when parallel regulatory action by other agencies could adequately address issues arising in markets in the UK. This aligns with the draft strategic steer from government for the CMA’s work and seeks to address an investment-chilling perception of regulatory overreach from the UK, following the removal of the one-stop-shop constraint of the EUMR, post-Brexit. Microsoft/Activision Blizzard – granted conditional Phase 2 clearance by the Commission but initially blocked in the UK – was widely considered an example of over-zealous enforcement by the CMA (until a reworked deal was cleared with conditions). Indeed, between 2020 and 2024, 27% of deals reviewed only in the UK, and 23% of global deals (i.e., deals reviewed in more than one jurisdiction), were blocked, unwound or abandoned.

We may have seen the first example of the new light-touch approach for global mergers in the Global Business Travel/CWT inquiry. Two of the Phase 2 panel members changed their position after publication of the interim report. The CMA’s supplementary interim report accordingly rowed back on the substantial lessening of competition (SLC) identified in its interim report, and the merger was subsequently cleared unconditionally. The fact that the DOJ had commenced litigation proceedings to block the merger between the publication of the two interim reports may not be coincidental.

It is yet to be seen whether this development manifests itself in the CMA making greater use of the Mergers Intelligence Committee’s streamlined review for global deals, or whether they are reviewed more expeditiously at Phase 1. We may end up with a “two speed CMA” – less pacey, high profile intervention in problematic UK deals but a lighter touch for global ones lacking a “distinct and direct UK impact”.

We haven’t seen the CMA stepping back yet to allow the EU to lead on remedies, but it’s worth noting that “false” divergences between the agencies may arise which are not due to a difference in analysis or facts, but instead due to the CMA allowing another agency to address concerns also affecting UK markets or consumers.
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison

Outlook for 2025 and beyond

The expectation in the coming years is that geopolitics will factor prominently in merger control reviews in strategic sectors, to an extent not previously seen. Considerations such as European defence capabilities, security of energy supply and heightened scrutiny of inward investment may mean that FDI approval supplants substantive antitrust concerns as the principle regulatory obstacle to  completion for some deals.

The Commission has signalled a more geostrategic approach to using its various enforcement tools. In the Clean Industrial Deal paper the EC confirmed that it will be issuing guidance on how the foreign subsidies review regime can be used to protect EU interests and objectives, including economic sovereignty and reduced dependencies on extra-EU supply chains. Calls have been made for greater focus on procurement from European companies for European needs.  The European Commission has also called on Member States to use their foreign investment regimes to impose economic conditions that advance EU industrial strategy. FDI regimes are typically administered by member state governments directly, not an independent agency, so the geopolitics of the day will dictate whether we see more or less divergence in sensitive sectors such as AI, defence, critical supplies to government and satellite and space technology, for example, between the UK and the EU/EU member states  as each seeks to protect and promote their own strategic interests.
Nicole Kar, Global Co-chair of the Antitrust Practice at Paul, Weiss, Rifkind, Wharton & Garrison
Three likely changes at UK level following recent government guidance etc.: less intervention in global deals such as MSFT/Activision; less intervention where CMA is pushing the jurisdictional boundaries; more use of behavioural remedies e.g. as in Voda/3.
Matthew Hall, Partner, McGuireWoods

Report written and produced by Lexis+® Competition and Caselex team members

With thanks to our valued contributors

Matthew Hall, Partner, McGuireWoods

Matthew is a London-based antitrust/competition lawyer. He specialises in all aspects of UK and EU competition and antitrust law, including merger control, strategic business advice and competition risk management, cartel and abuse of dominance cases, market/sector investigations, appeals, State aid/subsidies and competition litigation. He also advises on foreign direct investment (FDI)/national security control and the UK Digital Markets, Competition and Consumers Act 2024 (DMCC Act). He has significant experience of acting as coordinating counsel on multinational transactions and investigations. He is co-host of the ABA Antitrust Law Section's "Our Curious Amalgam" podcast series and Vice Chair of the Podcast Committee.

Nicole Kar, Partner and Global Co-Chair of the Antitrust Practice, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Nicole is Global Co-Chair of Paul, Weiss’ Antitrust Practice. She has led on over 40 significant merger and competition investigations in her over 20 years of European competition experience. She has extensive experience in advising on a wide range of regulatory and competition law issues in addition to maintaining a busy investigations and litigation practice. She has expertise in antitrust and regulatory issues spanning tech, financial services, retail, mining and healthcare sectors. Nicole was specialist adviser on foreign investment screening to both the Department for Business and Trade National Security Committee and the Foreign Affairs Committee of the UK Parliament . Nicole is ranked in Tier 1 of Chambers and peers and clients alike hold her in high regard as a top regulatory lawyer. She attracts particular attention for her work on high-profile Phase II domestic merger control investigations. Clients describe her as having ‘her finger on the pulse in terms of what is going on in the competition law world,’ being ‘to the point, really on it and very good with clients’.

Further reading

To track all transactions which have been reviewed by the CMA which were also notified to the Commission since IP completion day see: Parallel UK/EU merger investigations—cases tracker.

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