Mergers with a Public Interest Element
For public interest cases, BERR's Secretary of State (SoS) will decide whether to clear a merger, refer it to the Competition Commission (CC), or seek undertakings in lieu of a reference following receipt of advice from the OFT and, in the case of media mergers, from OFCOM.
The SoS will also decide whether to make an adverse public interest finding following receipt of the CC’s report. In making these decisions, the SoS must accept the views of OFT and CC as to jurisdiction and whether there is an anti-competitive outcome.
Copies of the OFT and OFCOM advice in public interest cases, together with the original intervention notices from the SoS asking OFT to investigate in particular cases, are published on the relevent web pages (see links on the right).
For a merger situation raising defined public interest issues, but which falls below the turnover and share of supply tests, the SoS may issue a special intervention notice allowing the competition authorities to consider those issues. As with other public interest cases, the SoS will make any decision on reference to the CC and on an adverse public interest finding.
All CC reports are published. Details of mergers investigated by the CC can be found on the CC inquiry reports website. Companies can also obtain confidential guidance or informal advice from the OFT on whether or not a potential merger would be likely to be referred.
Mergers between water and sewerage companies
A special regime exists for mergers between water and sewerage companies. These are considered under sections 32-35 of the Water Industry Act 1991, as amended (from 29 December 2004) by the Enterprise Act and the Water Act.