The CMA's merger remedies guidance plays a key role in determining whether transactions that raise antitrust concerns can be allowed to proceed on the basis of commitments entered into by the merging parties. As such, these latest revisions are an important step in wide-ranging ongoing reforms to the UK merger control process, to implement the CMA’s “4Ps” agenda. This seeks to encourage “pace, predictability, proportionality and process” across the CMA’s portfolio of work.
The overall message of the Revised Guidance is welcome news for deal makers. The CMA stresses that, in transactions raising antitrust concerns, it wants to work constructively with businesses to identify as quickly as possible whether there is an effective and proportionate remedy that will enable them to get on with implementing the transaction and running their businesses.
The Revised Guidance includes a number of changes that should contribute to this objective. However, much will depend on how it is applied in practice, as well as the outcome of a future consideration of the CMA’s approach to efficiencies.
There are five key takeaways for merging parties.
1. Behavioural remedies are more likely to make the grade
The CMA retains its position that structural divestments (e.g., the sale of a business) are more likely to be effective in addressing concerns than behavioural remedies (where merger parties make commitments as to their future conduct). However, the Revised Guidance encapsulates a clear softening in the CMA's stance towards behavioural remedies.
The CMA is now more likely to accept behavioural fixes in a wider range of circumstances. The CMA’s previous guidance envisaged accepting such remedies only where: antitrust concerns had a limited duration; the remedies would preserve substantial “relevant customer benefits” (see below); and/or a structural remedy is not feasible. Now, the CMA indicates that it is more likely to accept such remedies where:
- the remedy has a limited duration
- there is an industry regulator that can monitor and enforce the commitments, or the parties appoint a monitoring trustee to fulfil this role
- the market is transparent (enabling customers, rivals and suppliers to identify and report non-compliance) or sufficiently mature and stable (meaning less risk that the remedy becomes ineffective)
- the remedy aligns with existing commercial practices/norms.
In a further welcome move, the CMA has removed its presumption against behavioural remedies being accepted at phase 1. However, this comes with the important qualification that they will still need to meet a demanding “clear-cut” standard, which the CMA considers is more likely to be achieved by structural remedies.
2. Remedies can be used to lock-in pro-competitive efficiencies
The CMA acknowledges that some parties may claim that a merger will result in efficiencies that strengthen competition in the relevant market. However, there may be uncertainty as to whether they will deliver these efficiencies in full. The Revised Guidance describes how remedies can be used to secure the parties’ efficiency commitments.
This change reflects the CMA’s experience in Vodafone/Three, where the central plank of the remedies it accepted was a commitment by the merging parties to deliver their network investment plans (which the CMA considered could enhance competition but doubted would be delivered in full).
It signals a thawing of the authority’s approach to assessing rivalry-enhancing efficiency claims in merger reviews. However, the Revised Guidance only covers the interaction between merger remedies and efficiency claims—the CMA says it will consider its substantive approach to efficiencies more generally in due course.
3. Customer benefits may impact remedy choice and design
Relevant customer benefits take the form of lower prices, higher quality, greater choice or increased innovation. They must result from a merger but can be achieved in markets other than those where the antitrust concerns arise. The bar for proving them is high, and they have been rarely accepted by the CMA.
While not lowering the evidentiary burden, the CMA aims to clarify how remedies can be selected (or even modified) to ensure that any customer benefits are preserved.
4. Complex divestments might be possible with clear evidence and risk mitigation measures
Divestment of an existing business will remain preferable to a carve-out divestment (i.e., the sale of part of a business or collection of assets) or other complex structural remedies such as an IP divestiture.
But the Revised Guidance gives parties more clarity around the types of evidence it will take into account when assessing carve-out remedies and the ways in which the risks of complex divestments can be mitigated. These include use of upfront buyers, divestiture/monitoring trustees, or a “fall-back remedy” for situations where the complex divestment is unsuccessful.
In another significant move, the CMA has clarified its stance on divestments in transactions involving local markets at phase 1.
In these cases, the CMA often sets a threshold or “decision rule” for when antitrust concerns arise, e.g., by using a “filter” to assess competition around specific locations and an appropriate intervention threshold (such as market share).
The Revised Guidance clarifies that, at phase 1, it may be enough for the merged entity to divest sites to bring it below the intervention threshold—even if this does not eliminate the entire local overlap (which was an approach that could lead to a far higher number of local divestments at phase 1). The CMA will require robust evidence to show that such divestments will be effective but, if demonstrated, this could bridge the often-significant delta in number of local divestments required to solve antitrust concerns at phase 1, saving parties from a lengthy phase 2 process.
5. Early engagement with the CMA increases the chance of remedy acceptance (and a monitoring trustee/industry expert might help)
The CMA has already made various improvements to its merger review processes to implement its 4Ps framework. The Revised Guidance injects further tweaks—most notably at phase 1—to enhance the remedies process.
Most of these changes are designed to encourage and facilitate early discussion of remedies, with the CMA explicitly noting that the earlier parties start engaging with it on remedies, the more likely that the phase 1 standard for acceptance of remedies will be met. The CMA signals that it will be open to early “without prejudice” discussions during phase 1 (even in pre-notification) and at the initial stages of phase 2.
The CMA also encourages (but notes it cannot require) merging parties to consider appointing a monitoring trustee or industry expert to assist with remedy discussions. Parties will need to balance the cost of this against the possible benefits—the CMA suggests it could help its assessment of the remedy proposal, give additional comfort that the commitments will be effective, and enable a quicker decision.
A year of change
As noted above, the Revised Guidance forms part of a wider programme of work. 2025 has arguably seen the most significant shift in UK merger control policy since the CMA was created.
Other key developments:
- New timing KPIs for pre-notification and straightforward phase 1 reviews, as well as other proposed changes to the phase 1 process, aimed at increasing pace and boosting engagement between the CMA and merging parties.
- A push—following the government’s “strategic steer” to the CMA—to de-prioritise global deals that concern global markets (with no UK-specific impact) and where action by non-UK regulators can be expected to address any issues arising in markets in the UK.
- More clarity on how the CMA will apply the “material influence” and “share of supply” jurisdictional tests. These concepts are notoriously expansive, giving the CMA very broad jurisdictional reach, and have faced heavy criticism. Government proposals on possible legislative revisions are also expected. These will likely also cover potential changes to the way phase 2 merger decisions are made. ·
- A discussion paper on “scale-ups”, exploring how competition policy can help (and not hinder) UK start-ups from becoming “superstar firms” competing in global markets (a focus of UK government industrial strategy). This raises a number of potential ideas, ranging from relatively straightforward measures the CMA itself could take (like further guidance on beneficial collaboration between businesses in compliance with competition law) through to radical measures requiring government intervention (such as factoring the nationality of an acquirer into a review in certain circumstances and/or allowing the government to trigger a review screening deals for their impact on the UK’s strategic resilience).
Beyond the UK: a similar shift?
The CMA does not stand alone in adopting a more permissive approach.
The U.S. antitrust agencies are also embracing a more pragmatic, transparent and flexible stance, moving away from the de facto “no remedies” approach under the Biden administration.
Watch out for our upcoming report on global trends in merger control enforcement, where we will examine this shift, as well as more remedies developments from across the globe.
