Part 2: Competition Chapter 2: Mergers Schedule 5: Mergers: Fast-track references under sections 22 and 33 of EA 2002
Schedule 5 amends Part 3 of the Enterprise Act 2002 to enable the CMA to fast track a merger to an in-depth Phase 2 investigation if it receives a request from the parties involved in a merger to do so (paragraph 1).
	The CMA may only launch a Phase 2 investigation if it believes that it is or may be the case that a completed or anticipated merger has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom. If parties are aware that their merger is likely to fall into this category, moving straight into Phase 2 should speed up the overall process by significantly reducing the timelines to get to the in-depth investigation.
	Paragraph 2 introduces a new duty in section 22(1A) on the CMA to make a reference for a Phase 2 merger investigation regarding a completed merger if it has accepted a fast-track request from the parties involved in a merger. In a fast-track merger investigation, this duty replaces the ordinary duty in section 22(1) to make a reference for a Phase 2 merger investigation where the CMA believes that it is or may be the case that the completed merger has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom. Paragraph 3 introduces an equivalent duty in section 33(1A) for anticipated mergers.
	Paragraph 4 amends section 34ZA which sets out the time-limits for decisions about Phase 2 references to include a time limit for fast-track references. It requires the CMA to notify the parties involved in a merger of the making of a fast-track reference within the "initial period" which is the statutory period of 40 working days within which the CMA must complete the initial stage of its merger review process (Phase 1).
	Paragraph 7 inserts new sections 34ZD, 34ZE and 34ZF setting out the conditions and procedure for fast-track reference requests. Section 34ZD enables the parties involved in a merger to make such a request either before or after the start of Phase 1. The CMA may publish further guidance on the appropriate timings for such a request. When it receives such a request, the CMA must decide whether to accept it and has to notify the parties involved in a merger of its decision (see new section 34ZE). Where the request is made before the start of the Phase 1 investigation, the CMA can either reject it before or after it launches Phase 1, or accept it after launching Phase 1 and before the end of the initial period. Where the request is made after the start of the Phase 1 investigation, the CMA has to either accept or reject it before the end of the initial period. New section 34ZF sets out the conditions for acceptance of a request. The CMA has broad discretion on whether to accept a fast-track request but can only do so if it is satisfied to the usual standard that a relevant merger situation has been or may be created (i.e. that the merger meets the jurisdictional tests set out in section 23 of the Enterprise Act 2002 – see the note on Schedule 4 for further details). Unlike a standard Phase 1 investigation, however, the CMA does not have to determine whether the merger has resulted, or may be expected to result, in a substantial lessening of competition and therefore does not have to undertake the investigation necessary to come to this decision. Instead, it will investigate the substantive issues at the in-depth Phase 2 investigation. When deciding whether to accept a fast-track reference request, the CMA must have regard to whether the merger could raise public interest issues (see section 58 of the Enterprise Act 2002) or whether a special public interest intervention has been launched under section 59 of that Act, to ensure no such case is unduly fast tracked.
	Paragraph 8 amends section 39 which sets out the time limits for Phase 2 investigations and reports. It enables the CMA to extend a Phase 2 investigation following a fast-track reference by up to 11 weeks for ‘special reasons’ (instead of the normal 8 weeks allowed in a non-fast tracked Phase 2 investigation). This slightly longer permitted extension period reflects the fact that a fast-track decision in the early stages of a Phase 1 investigation means the CMA may be unable to rely on information gathered and findings made at Phase 1 to the same extent as it would ordinarily. In some cases, the CMA may therefore need to be able to extend the Phase 2 investigation for slightly longer to ensure it can conduct a full and proper investigation.
	Paragraph 10 amends Schedule 5A to the Enterprise Act 2002 which was recently inserted by Schedule 16 to the Energy Act 2023. It amends the modifications made by Schedule 5A to Chapter 1 of the Enterprise Act 2002 for the energy network merger regime to ensure that a review of a merger between energy network enterprises under that regime cannot be fast tracked.
	Paragraphs 5-6, 9 and 11-15 make consequential amendments to provisions in the Enterprise Act 2002, including by introducing a duty on the CMA to publish a fast-track reference decision under section 107.