With regard to the calculation of the turnover of mergers, the Commission`s guidelines state that the date to be taken to determine the competence of a merger is the date of the conclusion of the binding legal agreement, the notification of a public offer or the acquisition of a dominant stake or the date of the first notifications of concentration, depending on the previous date. If one of the relevant events occurs before the end of the transitional period, the Commission takes into account the turnover of the parties to the merger carried out in the United Kingdom. It is a simple approach by the Commission to determine whether it is competent. If the case is not opened until 2021, the Commission`s physical analyses and corrective measures will not be able to deal with the UK market. The CMA`s guidelines state that it is free to invoke concurrent jurisdiction, at least if the Commission has not initiated proceedings before the end of 2020. It remains to be seen to what extent the Commission and the CMA will cooperate in parallel investigations after the transition period. The CMA said it was working to maintain good cooperation with the Commission. In the context of merger control, which is often in the interest of the parties to agree non-disclosure declarations for the exchange of information with other supervisory bodies, cooperation between the two authorities should continue. There are also a number of precedents for administrative cooperation agreements between the Commission and competition authorities in third countries (for example. B with the U.S. Department of Justice and the Federal Trade Commission) that were adopted outside the scope of a formal trade agreement that sets a precedent for a similar agreement with the CMA. The transition period for the UK will end on 31 December 2020 and businesses have already questioned the consequences for them.
Among others, the potential impact on competition legislation and state aid is one aspect among others. Some issues are already being dealt with in a concrete way in the agreement of 17 October 2019 on the withdrawal of the United Kingdom from Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community («the withdrawal agreement»), while other issues remain unresolved (notably with regard to state aid control). It will be interesting to see whether the EU and the UK will be able to agree on other points in the remaining time and, if so, on which. While the UK government has softened its uncompromising stance somewhat in recent weeks and it seems that a compromise can be reached, there is no statement at this stage on the UK`s post-Brexit state aid control stance. The idea that the UK has a separate control system, overseen by the CMA, and to include some «high-level» substantive principles in the future free trade agreement is at the centre of the discussion. The question also arises as to how to deal with differences of opinion, i.e. dispute resolution mechanisms. It remains to be seen, therefore, what way the EU and the UK will have to reach an agreement on state aid control, if any.
The good news is that, in competition law, at least some of the consequences are already outlined on the basis of the provisions of the withdrawal agreement. Companies must take these risks and effects into account in their preparations before the end of the transition period.