Publication
Publication
Grab yourself a glass of something merry and a plate of something sweet, and join the festive fun for our second annual monotreme Christmas sing-along. What gifts did the CMA dish up for us over the past twelve months?
Last Christmas Platypus reported two dead ducks (AlphaTheta / Serato, Spreadex / Sporting Index). Spreadex appealed the prohibition and against all odds, the CMA requested a voluntary remittal. This is a rare play from the CMA, used in FNZ / GBST historically, with Marcus Smith (the then-president of the Competition Appeal Tribunal) also gently suggesting this as an option in Microsoft / Activision. Here, the CMA effectively conceded that it made errors in its final report, and that its summaries of third-party evidence did not accurately reflect underlying materials.
The case raised fresh questions about the extent to which the CMA should offer greater transparency around third-party evidence, such as via the European Commission’s (“EC”) “Access to File”, though no such proposals seem to be on the Christmas dinner table this year.
Unfortunately for Spreadex, the CMA refused to let Two Become One, in spite of the parties’ attempts to qualify for the failing firm defence, and the CMA maintained its position that the 2:1 be unwoundwrapped. Spreadex has since filed another application for review of the Final Report with the Competition Appeal Tribunal so only time will tell if it might also be contending for next year’s Christmas number one slot.
The two FNTQ cases this year were at the opposite ends of the North and South Pole – one was a completed acquisition identified by the CMA’s mergers intelligence committee (“MIC”) andfinalised in 3 months, while the other spent 15 months under investigation.
In Kpler / Spire, the parties originally informed MIC that Kpler’s UK turnover exceeded £10 million, but later revised this during the Phase 1 investigation (noting the intangible nature of the maritime and shipping analytics services Kpler supplied). After checking the list twice, the CMA considered that neither party’s UK turnover exceeded the £10 million threshold.
In contrast, Microsoft / OpenAIwas focused on whether Microsoft increased its control over OpenAI from material influence to de facto control. Keen Platypus readers may recall that this was the last of the CMA’s five AI partnership cases lingering under the mistletoe. The question of jurisdiction (specifically here whether the nature of Microsoft’s interest had changed from “material influence”, which it had already held, to “de facto control”) turned out to be a tough nut to crack(er). After a complex 15 month review of Microsoft’s investments and corporate governance, supply of essential inputs (i.e. compute infrastructure), and IP and commercialisation rights conferred, the CMA ultimately found there to be no change to Microsoft’s level of control over OpenAI.
Accent Wire / DR Baling Wire, Wabtec / Dellner and Keysight / Spirent made a merry Christmas Tree-o this year, each receiving a de minimis clearance decision from the CMA. Of the three cases, the CMA identified a realistic prospect of a substantial lessening of competition (“SLC”) in several markets in Keysight / Spirent only. However, the CMA approved the parties’ market size analysis and determined that the markets concerned were not of sufficient importance to justify a Phase 2 reference… a Claus for celebration!
De minimis clearances are slightly up on our tally of two from Last Platy’mas. While not a trend by any means, merger parties might be more familiar now with the CMA’s April 2024 guidance on exceptions to the duty to refer, and de minimis clearances are in line with proportionality, speaking of which…
2025 was certainly a year of change for the CMA, with the headline act being the much-discussed four Ps (Pace, Predictability, Proportionality, and Process), which promises lots of presents for Platypus’ dear readers. What are the four Ps evangelising?
The CMA has dramatically reduced the length of its Phase 1 clearance decisions this year compared to previous festive seasons. Both Kingspan / Coverworld and Norcros / Fibo came in at just five pages, making them the shortest decisions published in 2025 (so far). This change reflects the CMA’s commitment to meet its new KPIs under its focus on “Pace” i.e. to help deliver gift-wrapped clearance decisions within 25 working days for straightforward Phase 1 mergers, the substantially shorter write-ups now appear more similar to the CMA’s summaries of its traditionally lengthier Phase 1 decisions.
Shorter decisions however are a mixed blessing for the busy elves (i.e. external advisors) working for merger parties. With less detailed reasoning on the CMA’s findings, parties contemplating mergers in similar markets, or raising similar issues, may find it harder to predict how the CMA might approach their own case. That said, Platypus did find that the Kingspan and Norcros decisions squeezed down the chimney sufficient detail on the CMA’s assessment of the parties’ estimated shares, internal documents and third-party feedback. While a lengthier decision was always something that had set the CMA apart from its international counterparts, perhaps this gap is now narrowing.
It’s not often that a target business is suffering from such severe financial frostbite that the failing firm defence is accepted (i.e. where the CMA clears a transaction that would have been blocked on the basis that, absent the transaction, the target would have exited the market).
Yet this year, Bidvest / Citron Hygiene, Sportradar / IMG Arena and Rundvirke / Calders & Grandidge all had their Christmas wishes granted. In Bidvest / Citron Hygiene, the CMA was prepared to pop a bow on the deal even in the face of a combined share of supply of 60 to 70 per cent.
However, Santa Claus stopped short of a Phase 1 clearance in Constellation / ABVR – the CMA considered there to be two alternative purchasers whose acquisitions would have each been less anti-competitive than the current transaction. With Constellation choosing not to put any remedies under the tree, the case is now trudging through the snow in an in-depth Phase 2 inquiry.
With the CMA expected to intervene less in global deals, 2025 was marked by seven parallel merger reviews between the UK watchdog and its European counterpart – almost double the four Platypus reported on last year. This year’s seasonal turn-outs with the other side of the Channel were:
The CMA’s sleigh ride through guidance revamps didn’t leave its remedies playbook (i.e. CMA87) untouched, as Platypus has recently explored. The updated mergers remedies guidance is now fresh out of Santa’s workshop and its revisions are driven by the broader pro-growth narrative deployed by the authority in recent times. Here are the key baubles:
For many years, the star of the CMA stable has been the broad jurisdictional framework set out in the Enterprise Act, which was extended further with the introduction of an additional test in the CMA’s favourite gift of 2024, the DMCC Act.
However, the government’s strategic steer heralded a further change in approach, with updated guidance striving to present businesses with greater certainty and predictability as to whether the CMA has (and if so, whether it would take) jurisdiction over a deal whilst also ensuring the CMA meets its pace-y KPIs for review periods, with a particular focus on approach to acquisitions of material influence and the application of the share of supply test.
Updated guidance indicates that shareholdings <25% are unlikely (on their own) to confer material influence, while shareholdings <15% might confer material influence only where there are other significant factors to indicate the ability to exercise material influence.
In assessing whether the 25% share of supply threshold is met, the CMA will (i) consider those markets which are relevant to competition concerns, and (ii) “typically” only focus on statutory criteria (i.e. value, cost, price, quantity, capacity, number of workers employed).
The jurisdictional flock remains one to watch: forthcoming legislative proposals may do more to shepherd the CMA towards a new approach, and potentially to scrap the share of supply test altogether.
Slightly cheating, as this is far from an isolated 2025 trend, but Platypus cannot help but notice that the number of briefing papers being submitted has increased in recent years to close to 200 briefing papers a year in 2024/25 (up from less than 100 briefing papers a year back in 2020/21). In parallel, the number of transactions called in following a briefing paper has remained relatively stable (with only two cases then ending with an SLC finding in the last year).
In March this year, the CMA’s newly revised Phase 2 process had barely defrosted when the Final Report was published for Global Business Travel Group / CWT Holdings. The green light to the combination of American Express’ corporate travel business with CWT was a U-turn from the CMA’s Interim Report published in November 2024, which had provisionally found that the merger would result in an SLC.
However, there were already signs of a change during the days in between these reports on the advent calendar, when the CMA followed up with an unexpected supplementary Interim Report in February 2025. Its further analysis found that CWT would not have performed as strongly absent the merger as the group had initially assessed, and that some other competitors exerted a stronger competitive constraint than previously considered. As this was the CMA’s first investigation under the revised Phase 2 process, the independent panel highlighted several benefits of the more flexible new approach (even if they did not unanimously agree on the change of heart in this case) – this includes the earlier publication of an Interim Report, and a livelier chorus of carols and engagement from third parties with the inquiry group.
While some Phase 2 cases this year ended up with more coal than candy canes (see below), an increasingly open and iterative process at Phase 2 has been broadly welcomed. In finely balanced cases, there is now greater potential for the CMA to undertake targeted engagement on key concerns, rather than publishing a late-stage provisional view that could be a nightmare before Christmas for the merger parties.
Lastly, we can’t end the round up without looking at cases where the CMA gave a lump of coal (i.e. an SLC finding) this year, though in many cases there were better gifts in the stocking:
While care should always be taken with small sample sizes, the above shows somewhat reduced CMA intervention over the past year, even when accounting for a quieter year in global (and national) M&A. Things certainly look lonelier this Christmas in Phase 2 purgatory, which is much less crowded than it has been in recent years – Platypus sang of only 3 Phase 2 referrals this year, compared to 8 referrals last year, 5 in 2023, 12 in 2022, 7 in 2021, 10 in 2020 and 11 in 2019. This year’s Phase 2 docket has also been firmly UK-centric – even in the global deal Getty Images / Shutterstock, the CMA has emphasised specific concerns in the UK editorial market.
And that’s a wrap! As Platypus puts its flippers up to end another year, all that’s left to do is to wish you a very happy holiday season. We look forward to seeing what 2026 brings – with legislative proposals (Should auld acquaintance be forgot, it appears that the Phase 2 panel’s been consigned…) and a review of merger efficiencies expected early in the New Year, there will be plenty to keep us paddling.
Authors: Jonny Ford, Verity Egerton-Doyle, Helen Crossley, Judy Zhao, Kim Rust and Erasmia Petousi
