CN06 - UK National Security and Investment Act 2021 comes into force and update to CMA guidance
01 February 2022
On 4 January 2022, the UK's National Security and Investment Act 2021 ("Act") came into force. On the same day, the Competition Market Authority ("CMA") updated its merger control guidance in light of the Act coming into force.
Key takeaways
- The UK becomes the latest country to introduce a regime for the review of foreign direct investment based on national security concerns.
- The CMA's updated guidance reflects the Act coming into force, but only applies to post-4 January 2022 cases.
- Ashurst's Quickguide summarises the key points of the Act for merging parties.
With the Act coming into force, the UK becomes the latest country to introduce a regime for the review of acquisitions and investments on the grounds of national security.
The Act introduces a mandatory regime to notify transactions in 17 key sectors, backed up by criminal sections. Furthermore, the Secretary of State has the power to "call in" any transactions that are not subject to the mandatory notification regime but may raise national security concerns.
For an overview of the new UK national security regime introduced by the Act, please refer to Ashurst's Quickguide on the subject.
In order to help businesses navigate the new regime, the Department for Business, Energy & Industrial Strategy ("BEIS") has published a range of guidance, including on completing and registering a notification form. BEIS has also published PDF versions of the notification forms that are to be completed via its online portal.
The CMA has updated its guidance on jurisdiction and procedure under the UK merger control regime to reflect the Act coming into force. However, the previous guidance will apply to all ongoing CMA cases, as well as all cases where the Secretary of State has issued a public interest intervention notice or where the trigger event occurs before 4 January 2022.
Going forward, investors and merging parties should carefully consider any potential national security concerns raised by their transactions.
With thanks to Jan Schwarzfischer of Ashurst for his contribution.
