Mergers 2026 – One year on from the CMA's pivot to the Government's growth agenda

Fiona Garside:

Hello and welcome to Ashurst Legal Outlook. In this episode, we're going to reflect on a number of recent changes to UK competition law, and in particular, on what has happened in the 12 months since the UK Competition and Markets Authority (the CMA) was forced to refocus its activities to support economic growth. This followed the sacking of the CMA's chairman, Marcus Bokkerink, by the Chancellor after the Government felt that the CMA had failed to convince them that it was sufficiently focused on growth. At the time, Rachel Reeves said she wanted regulators to play their part by "tearing down the regulatory barriers" that hold back economic growth, and she added that she wanted regulators to undergo a "cultural shift from excessively focusing on risk to helping drive growth".

My name is Fiona Garside, and I'm an expertise counsel in Ashurst's Antitrust, Regulatory, and Trade team in London. I'm delighted to be joined today by three members of our London team: partners Nigel Parr and Chris Eberhardt, and one of our senior economists, Tom Punton. Thank you all for joining me.

Nigel Parr:

Good morning, Fiona.

Chris Eberhardt:

Hi Fiona.

Tom Punton:

Hi Fiona.

Fiona Garside:

In addition to the Government's relatively recent call for the CMA to help drive economic growth, we've seen significant changes to competition law enforcement in the UK over the last five years, with Brexit having significantly changed the CMA's jurisdiction, giving it the ability to review mergers and to pursue investigations which would previously have been reserved to the European Commission. In addition, the continued growth of digital platforms has raised novel challenges which competition authorities worldwide are grappling with.

Nigel, taking a step back, where are we now in the UK, and how did we get here?

Nigel Parr:

I think that's a very good question, Fiona.

I've been practising competition law for more than 30 years, and I think it's fair to say that we are living in interesting times. I will focus on merger control because I think that's at the heart of developments over the last 12 months or so. There are a number of issues to consider. First, the very flexible nature of the legal concepts underlying UK merger control. Second, Brexit which, as you say, has given the CMA the ability to review global mergers, which would've been reviewed exclusively by the European Commission when we were a Member State. Third, the digitalisation of markets, which many economists consider requires a new approach to assessing competition risks. And, finally, what I call the cultural policy of the CMA.

On the first point (the flexibility of UK merger control), the legislation captures enterprises that cease to be distinct, including through the acquisition of something called material influence, where a share of supply of 25% or more is created or enhanced in a substantial part of the UK. These are pretty technical terms, they've been around in the legislation since the 1960s, and they've been interpreted quite extensively by the courts. The upshot is that the CMA has been given the ability to review a very wide range of transactions, and it potentially has the broadest jurisdictional reach in the world. In the past, senior CMA officials have remarked that they have the ability to review literally any transaction that they may consider raises concerns.

Now, whilst the UK was an EU Member State that reach was limited because the CMA was essentially limited to looking at domestic mergers. The very large international mergers fell within the European Commission's jurisdiction. But following Brexit that constraint was removed, and the CMA was free to review global mergers that satisfied these very flexible jurisdictional requirements.

So that's the second point. Brexit has enabled the CMA to take back control and review very large global deals.

The third point (the challenges of digital markets) was explained by Andrea Coscelli, who was a former Chief Executive of the CMA from 2016 to 2022. In February 2021, he gave a speech at the ACCC in Australia in which he emphasised three points. First, that the focus of economic analysis in delivering competitive markets, which for many years, 30 years or more, had been on consumer welfare (and in particular the effect on prices) was becoming less effective and should take other objectives into account, such as the effect on innovation, particularly in digital markets, which he suggested were under-regulated and that competition authorities had struggled to stay ahead of the curve.

His second point was that competition authorities were generally cautious in the face of evidential uncertainty in order to avoid over-enforcement. For example, they didn't generally intervene in mergers that did not clearly show horizontal or vertical detriments, but he said this approach could fail to safeguard innovation that could otherwise benefit consumers.

The third point he made is that maintaining competitive markets through effective merger control is preferable to regulation. That's a pretty standard view. He added that, following Brexit, there was an extra impetus for the CMA to adapt and develop its approach, having acquired responsibility for major antitrust and merger cases that were previously reserved to the Commission, and that is effectively what the CMA did. It intervened in a number of mergers that often had a tenuous link to the UK, culminating in Microsoft / Activision, which was a global gaming merger, where the parties' UK sales represented less than 5% of their total revenue. The deal was cleared by the DOJ in the US and the European Commission, subject to remedies, (behavioural remedies) at the time, but blocked by the CMA following a phase 2 investigation due to concerns about cloud gaming.

After Microsoft restructured the deal to licence its non-EEA cloud streaming rights to Ubisoft for 15 years (which interestingly the CMA considered to be a structural rather than a behavioural remedy) the CMA then reversed its initial prohibition decision. Following the initial decision, Microsoft's president (Brad Smith) had claimed that the UK was closed for business: a sentiment that concerned the UK Government, which was actively promoting a tech-friendly image to encourage investment. The CMA's Chief Exec, Sarah Cardell, explicitly denied that the CMA had succumbed to pressure, stating that its decisions are made free from political influence. So that's the third point.

The fourth point I mentioned earlier is what I refer to the CMA's cultural policy. In essence, this is that the CMA has, for a long time, been a global thought leader in competition policy and antitrust economics and had some very smart people at senior levels. As a consequence, it developed an approach that reflected this, as was illustrated by Andrea Coscelli's speech. The result was that the CMA became one of the world's toughest merger enforcers. So I think it's for these reasons that the business community, particularly in the US, expressed concerns leading to the Chancellor's call for a cultural shift away from focusing on risk to focusing on growth.

Fiona Garside:

Thanks, Nigel. So how's the Government responded to that?

Nigel Parr:

Well, the Government has, for a number of years, issued strategic steers every five years or so, and most of them in the past have pretty much left it to the CMA to get on with things, to make their own mind up. It stressed the independence of the CMA. The most recent steer in May 2025 emphasised that the primary mission of the Government is economic growth, and the key message to the CMA in the steer was to prioritise pro-growth and pro-investment interventions, focus on markets and harms, which particularly impact UK-based consumers and businesses, and support growth and competitiveness in deciding which investigations to commence and when assessing remedies. By that time in May 2025, the CMA had already refocused its activities around the so-called 4Ps framework with its CEO, Sarah Cardell, stating in November 2024 that the CMA does not operate in a political vacuum and that it is right that the CMA is informed by the policy context in which it operates.

Fiona Garside:

Thanks, Nigel. And picking up on the 4Ps framework. Chris, what is this, and what's the impact been?

Chris Eberhardt:

Thanks, Fiona. Sure.

As Nigel mentioned, the 4Ps framework was first introduced by the CMA chief exec, Cardell, in her speech in November 2024. Since then, really has been the work to implement that across all of the CMA's functions. I'm sure many listeners will likely be very familiar with these already, but running through them: the 4Ps are, firstly, pace, so looking at work to act more swiftly, to deliver more timely outcomes for reviews into shorter timelines. Secondly, predictability, meaning the CMA is looking to provide really greater clarity on its processes and expectations. Thirdly, proportionality, so ensuring that the CMA's actions, interventions, and remedies are balanced targeted, and, as the name suggests, proportionate. And then, fourthly, process, which is all about looking at how the CMA engages with stakeholders throughout its work to ensure better engagement, as well as work to ensure that the process is as efficient as possible. Now, obviously, setting out a framework is the easy part, and the key really is actually implementing that framework and those principles in practice. I think we'll come back to these in more detail.

In the past year, we really have seen a number of changes to the CMA's policies, guidelines, and procedures in the context of its merger work as it seeks to implement those 4Ps. Just to give a couple of those, for example, we've seen significant changes really aimed at shortening the time taken to clear straightforward mergers, in particular with the introduction of KPIs (key performance indicators) for both the pre-notification discussion stage and also the phase 1 review. Interestingly, those KPIs will be tracked centrally on a central government website, monitoring performance across a number of regulators. To achieve those KPIs, the CMA intends to introduce efficiencies to its process, including looking to streamline issues and focusing its resources really on the key emerging areas of concern whilst closing down quickly other lines of inquiry, and also by being more targeted in terms of the information gathering, which I think will be welcomed by many stakeholders, and, thirdly, by having greater engagement with the parties throughout the process, for example, through introductory teach-ins, more regular check-ins, as well as earlier remedies discussions. We've seen a bunch of changes really looking to make the process more efficient and improve timelines.

The second big area of change I think has been, in relation to process, to update the jurisdictional thresholds. Now, there have been calls for really some time now for the jurisdictional test to be reformed to provide increased predictability and greater clarity for businesses as to whether or not their transaction will be caught by the UK merger control and could be reviewed by the CMA. And Nigel's already mentioned some of the most prominent examples of cases in which the CMA controversially intervened, despite the transactions having only fairly tenuous links to the UK. The CMA consulted on and published in November revised procedural guidance, and these introduced some changes to reflect updates to take into account the CMA's most recent practice in relation to both the material influence and share supply tests that Nigel's mentioned, and we will come back to look at these in more detail.

At this stage, I'll just say I think those updates are directionally helpful, but probably are just the start as the UK Government has separately confirmed, but it plans to consult on proposals to amend both tests under the Enterprise Act, although we haven't yet seen the details, so we'll need to see what's proposed here and see at that stage how far it's likely to move the dial in practice.

Fiona Garside:

Thanks, Chris.

The other area in which the CMA's come under criticism in relation to merger control is its approach to remedies. Tom, what developments have we seen here?

Tom Punton:

We've seen some significant changes in the last 12 months in this regard. As most of you know, historically, the CMA has preferred structural remedies (in particular divestments) over behavioural remedies that seek to change the aspects of the future conduct of the merging parties. This is because structural remedies are seen as offering a one-off intervention that doesn't require significant ongoing monitoring, and they're more likely to deal with the change in market structure that's brought about by the merger and restore competitive rivalry. However, as Nigel touched upon, in recent years, the CMA has come under criticism for adopting an overly cautious approach to behavioural remedies and rarely accepting such remedies in practice. This came to a head a few years ago in the Microsoft Activision case, where the CMA's approach was in stark contrast to the Commission, both in that case and more generally. So the Commission has often been seen as open to behavioural remedies, particularly in cases involving vertical theories of harm.

Changes to the CMA's approach to behavioural remedies have been anticipated since the end of 2024 when Sarah Cardell announced the CMA's intention to review its merger remedies process and, in particular, to look at when behavioural remedies may be appropriate. Since then, the CMA has signalled a greater willingness to consider behavioural remedies. We have seen this both in terms of new guidance on remedies from the CMA, which was published at the end of last year following a consultation in the summer, and in a couple of key recent cases. In particular, in Vodafone / Three, which the CMA cleared at phase 2, subject to behavioural remedies, and in Schlumberger / ChampionX, which the CMA cleared at phase 1, subject to undertakings being offered by the parties, including a behavioural remedy to address one of three SLCs.

The CMA's new guidance explicitly acknowledges that behavioural remedies can be effective in some cases, and effectiveness will be assessed on a case-by-case basis. This represents a departure from the CMA's previous approach of generally only accepting behavioural remedies in cases where either there is a time-limited SLC, or there are substantial relevant customer benefits, or structural remedies are not feasible.

Chris Eberhardt:

I think, Tom, the guidance also sets out a wider range of circumstances in which behavioural remedies would satisfy the effectiveness criteria.

Tom Punton:

Yes, that's right, Chris. While the guidance maintains the CMA's position that most behavioural remedies do not directly address the SLC at source and that such remedies are subject to a variety of risks, which might limit their effectiveness, the revised guidance sets out the following factors in which the risks associated with behavioural remedies may be reduced:

• where the behavioural remedy has a limited duration. This was a factor in Vodafone/Three where the CMA used time-limited price control remedies to protect consumers in the short term until the benefits of greater network investment could be realised.
• Second, in regulated sectors where the regulator has the ability to effectively monitor the remedy, again, this was key in Vodafone / Three, where the support of Ofcom, the communications regulator, was seen as a key factor in the merger being cleared.
• Third, behavioural remedies may be more appropriate in industries with certain characteristics, in particular a high degree of transparency, which make it more likely that third parties are in a strong position to identify non-compliance.
• Fourth, if behavioural remedies align with pre-existing market practices and norms in the relevant industry.
• Fifth if the market is sufficiently stable and mature such that competitive conditions are unlikely to materially change in ways which mean that the behavioural remedy becomes ineffective.
• And sixth that the merging parties appoint and pay for a monitoring trustee.

Some enabling remedies may also be used to secure merger specific rivalry enhancing efficiencies. This was important in Vodafone / Three, where the CMA adopted a behavioural remedy to secure the merging parties' efficiency commitments in the form of a joint network plan. Whilst Vodafone / Three suggests that the CMA is willing to consider behavioural remedies in horizontal mergers, the focus of the CMA's guidance on behavioural remedies appears to be on vertical mergers. For example, the guidance specifically refers to academic evidence that behavioural remedies may be more appropriate in certain cases involving vertical and/or conglomerate, rather than horizontal, theories of harm.

I expect we will continue to see structural remedies being the norm in horizontal cases (with the occasional exception such as in Vodafone / Three), but behavioural remedies will become more common in cases involving vertical or conglomerate theories of harm with Schlumberger / ChampionX being a good example of this.

Fiona Garside:

Thanks, Tom. I think that's an area we're all going to be watching with interest to see how it develops. And one other change that we wanted to pick up this week was the introduction of the CMA's 'wait and see' approach. Chris, can you tell us when this applies and how we are expecting it to work in practice?

Chris Eberhardt:

Sure. So I think ironically actually it's an area that we will need to wait and see to see exactly how it plays out. But stepping back, again as we've said a number of times, there's been criticism of the CMA for intervening in international mergers which really appear to have very limited impact on the UK. So to respond to that the CMA has said okay we'll consider adopting a wait and see approach to global transactions. Now on its face, this should essentially mean that the CMA is less likely to open investigations where the markets are global and the transaction is already subject to review by other regulators, or where the remedies agreed in other jurisdictions would be likely themselves to address any competition concerns in the UK. So for those cases, the CMA is saying look we'll effectively wait to see the outcome of review by other regulators before deciding if we need to take any additional action. Now that certainly sounds sensible on paper but there really remains very little guidance on how that approach will work in practice. I think it has a number of practical implications and we’ll need to see how those work through, both for predictability but also the pace of CMA reviews. The risk for the parties is clearly that the CMA only decides to intervene at a really very late stage in the transaction, potentially disrupting the deal timetable, which is obviously not good for deal predictability. I think we may end up finding out that in practice merging parties will be reluctant to refrain from engaging with the CMA until late in the day to avoid that risk of delaying their deal.

Fiona Garside:

Thanks, Chris. And now I think we should think about the 4Ps in a little more detail. So starting with pace, Tom, what's been happening here?

Tom Punton:

So, 2025 has been a relatively quiet year in terms of the number of cases reviewed by the CMA, but we've seen the 4Ps being implemented through updated guidance and in the CMA's decisional practise. The CMA consulted on updated merger guidelines in June 2025, and the final version was published in October. The updated guidance touches on all 4Ps. Starting with pace, the updated guidelines set out shorter target timelines for pre-notification, with a target of 40 working days for pre-notification in comparison to the average of around 60 to 70 working days that the CMA has been achieving in recent years. To meet this target, the guidelines set out new requirements for merging parties before the CMA will commence formal pre-notification.

The CMA must be satisfied that the draft merger notice provides the necessary information for the CMA to carry out the initial stages of pre-notification; that includes identifying all relevant overlaps and providing contact details and documents. The intention is to identify concerns at an early stage in the merger review process to allow for a shorter overall timetable.

In addition, the CMA is aiming to reduce the timeline for CMA clearances in straightforward cases from 35 working days to 25 working days. This brings the CMA in line with the European Commission's phase 1 timeline. The CMA has made a good start on this goal in the last quarter of 2025. Of the 15 phase 1 decisions announced in Q4 2025, 11 were cleared within 25 working days.
To help the CMA meet the shorter phase 1 timeline, the CMA has indicated that decisions in straightforward cases will be in a more summarised format than we have seen in previous years. For example, the phase 1 decision for Global Payments / WorldPay was just nine pages, and the decision for Norcros / Fibo was only five pages. The CMA appears to now only publish detailed decisions, so 40 to 60 pages or so, in cases which go to a case review meeting.

Fiona Garside:

Thanks, Tom. For the second P, predictability, the CMA has been looking at clarifying its remit to call in and review transactions, particularly the concepts of material influence and share of supply. Nigel, did you want to pick this one up?

Nigel Parr:

Yeah, very happy to discuss that, Fiona.

By way of background, the UK merger control regime has been around for much longer than most other jurisdictions, and our concepts are pretty unique. Material influence is at the lower end of control. So if you're buying a small stake, or you are entering into a commercial agreement, will that constitute a merger? In most jurisdictions, it won't. The other aspect is if you are acquiring a company with pretty small turnover but it has an impact, the share of supply test enables the CMA to look at mergers where many other jurisdictions around the world would simply be unable to intervene. Commentators have said for many years that these tests do not aid predictability. It's often difficult for parties to know in advance whether the CMA will be able to review their transaction. So predictability is clearly a key P that the CMA has identified, and I think a lot of people would say rightly so.

The CMA building on predictability has reissued its guidance in relation to material influence. Material influence, historically, was very flexible. There's one case, a JV between British Airways and Sabena, where the fact that the two BA directors (Lord King and Sir Colin Marshall) were strong characters was held to be a particular factor indicating that BA would have material influence over the joint venture. The CMA's guidance is trying to row back and get some predictability into this.

Three main aspects are focused on in the guidance. The first is the acquirer's ability to block or approve commercial decisions using special resolutions (more than 25% of the vote), the acquirer's ability to appoint members to the target's board and other agreements between the merging parties that put the target in a position of dependency when making commercial decisions. Importantly, it's not a question of whether the acquirer has actually exercised material influence over the target, but whether it would be possible for it to do so. In practice, there's no need for the acquirer to be able to influence the day-to-day operations of the target business but it's whether it has the ability to exercise it over the commercial policy.

What the guidance does is it says okay, let's look at the shareholding, that remains an important aspect of the analysis, and it says that a shareholding of more than 25% will generally confer material influence, and shareholdings below that level are unlikely to do so in the absence of other factors. And those factors include the ability to appoint board members or the existence of financial agreements, such as loan arrangements, for example. The revised guidance states that it's only in exceptional circumstances, and in the presence of significant other factors, that acquiring a minority shareholding of less than 15% would confirm material influence. The word "significant" is interesting. It's been added to the guidelines, which previously only referred to other factors. So that's material influence, bit of clarification there.

The share of supply test, that's been under scrutiny for quite a number of years. There have been cases where the CMA has looked at the number research PhD scientists or software engineers employed by the two parties in the UK and, if there's more than 25% of those people, it's held that the share of supply has been satisfied. It therefore gives the CMA very broad discretion, which can to say the least create uncertainty for businesses about whether a particular transaction would be called in for review.

There are two main changes in the guidance. First, the guidance confirms that the CMA will limit its consideration to the criteria set out in the legislation, which refers to value, cost, price, quantity, capacity, and number of workers employed. The legislation also says "... or such other factors as the CMA deemed to be appropriate." The guidance is saying we will just limit our consideration to the named factors and not other factors that might subsequently occur. The guidance also says that they will typically rely on the value or volume of goods sold when applying the share of supply tests. Now, that is getting to the heart of what ordinary language would suggest is a share of supply: it's a supply of something. Now, that does still give the CMA significant flexibility.
The other point that has been in issue for quite some time is whether the share of supply needs to relate to the market in which the SLC might arise. So in a conglomerate merger, there may be a share of supply of 25% or more in the supply of ice cream, but the concern may arise in relation to the supply of alcoholic drinks. The CAT had supported the CMA's approach in there being no necessary connection between the share of supply test and the market of concern, but the guidance is now saying that the CMA will focus on share of supply in those markets where the potential competition concern arises. Now, a lot of people would say, that makes sense. It leads to more predictability and, in essence, focuses the legislation on the harm that is arising as a consequence of that share of supply.

Fiona Garside:

Thanks, Nigel. And then for the third P, proportionality, I think Tom and Chris you've largely already addressed this. Essentially that's the wait and see approach that Chris talked about with the approach to international mergers and as Chris said we'll have to wait and see what happens there. And then we are expecting maybe slightly more proportionate remedies if we see an increase in behavioural remedies, particularly in cases involving vertical and conglomerate theories of harm. So really the last one left to address Chris is process. What's been happening here?

Fiona Garside:

Thanks, Tom. And then our final P, process. Chris, what has the CMA been looking at here?

Chris Eberhardt:

Yes. As we've said, process is all about really improving the efficiency of the review process, as well as looking at increasing the opportunities for parties to engage with the CMA. So, in order to achieve the KPIs and the shorter timelines that Tom outlined earlier, the CMA has introduced a number of measures now to try and make the process of its merger reviews more efficient. For example, the CMA will invite the merging parties to hold a teach-in session during the pre-notification stage, probably early in that stage, so that the case team can better understand the industry and the merging parties' businesses right at the outset of the review. This has already been a step which the CMA has increasingly been adopting in more complex cases, and we've certainly seen the benefit of it in relevant cases, and we do think this should prove a helpful development.

At these teach-ins, and consistent with their general desire to hear really directly from businesses and sector experts and less from the external advisors, the CMA say that they anticipate that the teach-in will be led by key commercial and operational staff from the merging parties' businesses, so not their lawyers or external advisers. And I also hope this will streamline the early stages of the review process by giving the case team an early opportunity to ask pertinent questions and focus quickly on the key issues. The teach-ins will be attended by a senior member of the CMA case team, and that will also provide an opportunity for the case team to provide the merging parties with a brief outline of the envisaged process.

Now, in addition to early engagement with the parties at a teach-in session, the CMA has said that it will now hold two informal update calls, which will take place at approximately 20-working day intervals after the commencement of pre-notification. Now, given the 40-working day KPI that's been introduced pre-notification, the guidance does recognise that the second call may fall before or potentially after the CMA formally commences its phase 1 investigation. But the CMA does anticipate, and said so in it's consultation, that the early engagement would have a positive impact on its overall process. I think, in particular, the hope is that earlier and more frequent opportunities for parties to meet with the CMA decision makers will create a more participatory process for stakeholders, hopefully improving predictability, as well as making the process more efficient.

And then finally, I was going to mention an interesting development which actually just occurred shortly before this recording, although it's not directly related to the 4Ps, and this relates to the use of the fast-track process. So in connection with the plan acquisition by Associated British Foods of Hovis (which are two bread manufacturers active in the UK), the parties have requested that the case be fast-tracked to phase 2, and essentially they're asking or have asked the CMA to bypass the phase 1 investigation entirely, seemingly with the aim of saving time in the review process.
Stepping back, the Digital Markets, Competition and Consumers Act introduced updates to the fast-track process in the UK, and this is the first case to make the use of that new formal process. So what does this process involve? Well, the parties can request to fast track during pre-notification or at any time during phase 1. They have to accept in writing that there is sufficient evidence available to meet the statutory threshold for a reference, i.e., that there is a realistic prospect that the transaction may be expected to result in a substantial lessening of competition (or SLC). But importantly, and this is the key change that the Act introduced, parties do not need to concede that the merger actually gives rise to competition concerns. Now, fast track has always been around, well been around for a while, and it's always offered limited benefits in terms of time saved.

The new CMA phase 2 process would seem to give rise to a number of disadvantages to employing the fast-track procedure. In particular, the fact that the CMA no longer published an Issues Statement at phase 2 and instead relies on the phase 1 decision means, if you fast track, you start the phase 2 process with very limited insight into the CMA-specific concerns. I think the ABF / Hovis decision to employ the fast track is an interesting one, as it's hard from the outside to see what the benefits might be to the merging parties. In this case, the phase 1 reference decision is only two pages, so you really are starting phase 2 essentially from zero. Now, clearly there must be some benefits, otherwise the parties wouldn't have done it, and it may just be that they want to expedite the process and get a review outcome as quickly as possible, but it's going to be really interesting to see how the CMA plans to manage that process and what the efficiencies are in timing as a result.

Nigel Parr:

Chris, I think it's also relevant to add that the Government will shortly consult on changes to phase 2 decision-making. Just to recap, the current phase 2 decision-making is a carryover in many ways from the process of the Competition Commission from the time before it merged with the Office of Fair Trading to form the CMA, and that took place more than 12 years ago. That phase 2 decision-making process has recently been updated and streamlined. Certainly, my experience having done a phase 2 case recently is it is much improved. One of the key benefits now is that, very early in the process, you have a substantive meeting where you focus on the phase 1 decision and you can make quite detailed submissions on why you think the conclusions reached at phase 1 are not sustainable or really do need a further detailed review at phase 2.

But it's maintained the panel system, and the panel system is a system whereby experienced independent folk from economics, law, business are appointed to a panel. They are selected to sit on a group which takes a decision in relation to those phase 2 mergers. It's caused a bit of concern within the CMA, not least because those phase 2 decision makers are independent, if you like. By definition, they're independent of the CMA and the CMA board, and yet it's the CMA board that is responsible to Parliament for those decisions. In November 2025, Sarah Cardell, the CMA's Chief Executive, really said that the current model was out of date, and it needed to be restructured. She recognised that whilst it delivers robust and objective scrutiny of the evidence and draws from a wide range of expertise, it was a pretty unusual system where the CMA was responsible, but the decisions had been taken by [the panel]. So what has been mooted, and we expect to see this in a consultation paper shortly, is that the phase 2 decision-making process for mergers and also for market investigations will be similar to that adopted in relation to digital markets cases where you have a subcommittee of the CMA board, comprised of non-execs and senior executives of the board together with expert members, one hesitates to call them panel members. I understand that the word panel will disappear, but it's not obvious what they will be called, but they will be industry and other experts who will bring that element of independence to that new decision making.

I think certainly those of us who have been doing these cases would urge caution about proceeding without those independent panel members because the whole benefit of the phase 2 process is to avoid confirmation bias. So you go through a phase 1 process, they take a decision saying we think there's the reasonable prospect of a substantial lessening of competition. At phase 2, you want to know that you've got people with a second set of eyes who are unencumbered, if you like, from the approach that's been taken at phase 1. It should be the case that that is preserved, and it's certainly been indicated that phase 1 decision makers will not be involved at phase 2, so there will be separate people.

That's something that's going to be very interesting to watch out for.

Fiona Garside:

Thanks, Nigel. Just before I let you all go, I was wondering if you could each share what you'll be keeping an eye out for in the coming year. Tom, would you like to start?

Tom Punton:

So from my perspective, it's going to be really interesting to see how the CMA implements the changes to its approach that we've discussed in its ongoing cases. I think there are a couple of cases to keep an eye on, including in particular Getty Images / Shutterstock, which was recently referred to phase 2. I think this is an interesting case for a number of reasons. First, it's an international merger that's being reviewed by the DOJ, and the CEO of Getty Images has been very vocal about the CMA's decision to refer the case to an in-depth investigation. Second, the parties offered behavioural remedies at phase 1 that were rejected by the CMA, in part because they were offered quite late in the process. So it would be interesting to see whether those same behavioural remedies are reconsidered at phase 2. Finally, the merging parties have argued quite strongly that there is a strong constraint from generative AI, and it will be interesting to see what weight the CMA places on that constraint at phase 2. I mean, it rejected it quite firmly in its phase 1 decision.

Chris Eberhardt:

Fiona, I think, for me, clearly a lot of the changes we've been talking about are all about trying to expedite and make CMA reviews more efficient and, frankly, quicker. There's going to be a lot of pressure, I think, on the CMA to use those tools to try and achieve that, and in particular to try and achieve the KPIs that, as we've said, are going to be tracked centrally. So a lot of pressure really on the CMA to move with pace. But I think there's a balance, and it's going to be really important that the CMA makes sure that moving at pace and getting to a quick resolution does not come at the expense of parties' abilities to engage in the process, to make submissions, to assess evidence. Really, we need to make sure that we're still getting robust decision-making, that issues that need to be considered are being considered properly, and ultimately the deals that raise competition concerns are being assessed and decided appropriately.

Nigel Parr:

Fiona, if you'd like me to add a few thoughts, I think they fall into two buckets in essence. The first is the sort of legal and formal changes. Any change in the law on material influence and share of supply will be interesting to see. I think it's going to be difficult given that we've got a voluntary regime, and flexibility is key to that. Obviously, the phase 2 decision-making process will be of interest, but I think the really interesting question will be the one that Tom was flagging, which is, "what are the outcomes of this? What are we going to see?". The CMA has had a interesting 12 months, shall we say, following the sacking of the Chairman. And I think it's correct when I say that, during 2025, there have been no merger prohibitions, and that's the first time that's happened since 2017. Now, CMA would say, "probably rightly, well, each case turns on its own facts," but what are the outcomes going to be?

Are we going to see more behavioural remedies? Are we going to see the benefit of the doubt being given to the merging parties? And is that going to be in international mergers where there might be a little bit more of a light touch? What about purely domestic mergers? Are we going to have less of a change, shall we say, in terms of the way transactions are reviewed and the growth agenda is applied? I think the next year is going to be very interesting for the changes that are coming down the track, but also the way the CMA applies the new framework that it's adopted following on from the refocusing on the government's growth agenda.

Fiona Garside:

Thanks, Nigel, and thank you all again for sharing your insights and for a really interesting conversation today. There's clearly a lot to watch out for in the coming months, and we will hopefully get you all back on to report back as the year progresses. That's all we have time for today. So thank you for listening.

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