Legal background Legal background for Government intervention in mergers on national security grounds European merger cases
The European Council Merger Regulation (No 139/2004) gives the European Commission exclusive jurisdiction within the European Union ("EU") to assess mergers (which include outright acquisitions) with an EU dimension (i.e., those in which the parties meet certain global and EU-wide turnover thresholds) for any competition issues. This Regulation still applies in the UK in respect of merger reviews that the European Commission started before the end of the transition period, in accordance with Article 92 of the Withdrawal Agreement ("live EU cases"). Before the end of the transition period the Act provided a mechanism whereby, so long as the standard jurisdictional thresholds were met (see paragraphs 14-16 above), the Secretary of State was able to intervene in EU mergers on the basis of the public interest considerations specified in section 58 of the Act (other than the stability of the UK financial system, which is expressed as not applying in these cases), including national security. This mechanism has been repealed but has been preserved for any live EU cases by the Competition (Amendment etc.) (EU Exit) Regulations 2019 (as amended). This would allow the Secretary of State to give the CMA a European intervention notice ("EIN") under section 67 of the Act in respect of any live EU case. The subsequent process is similar to the public interest intervention procedure set out above, except that it does not involve any competition assessment by the CMA, this being left to the European Commission 1 .