Introduction: The Substantial Lessening Of Competition

Abstract

Abstract The revision of the ‘public interest test’ against which mergers were formerly assessed was one of the central ambitions of the Enterprise Act 2002. It was described by the Minister for Competition as ‘one of the cornerstones of the new regime ‘. The new substantive test, operative since 20 June 2003, is whether a relevant merger situation ‘has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services’. It is cited in section 22(1)(b) as regards completed mergers, and—with some slight variation to account for grammatical tense—in section 33(1)(b) for anticipated mergers. The identification of a likely substantial lessening of competition is the key prerequisite to any reference by the Office of Fair Trading. Similarly, the Commission may intervene in a merger only if it can concur with this view. The move to the new test has been widely lauded as confirmation that the protection of the competitive process provides the basis of the merger control regime.