Checklist: Responding to an information request from the Competition and Markets Authority (UK)

Introduction

This checklist will assist in-house lawyers and compliance professionals in organisations of all sizes and sectors to respond to an information request issued by the UK Competition and Markets Authority (CMA).

The CMA has various powers under the Enterprise Act 2002 (EA02) and the Competition Act 1998 (CA98) to gather information to support its decision-making functions; these include information-gathering powers in relation to merger investigations, CA98 investigations and markets investigations. This checklist is intended to be a general guide to responding to information request issued by the CMA, rather than being focussed on information requests in any one particular investigatory context.

This checklist addresses the following steps:

1. Understand the nature of the request
2. Information gathering
3. Preparation of the response

This checklist can be used in conjunction with the following How-to guide: Understanding the Competition Act 1998 prohibitions and Quick views: Penalties for failure to comply with the CMA’s Competition Act 1998 investigatory powers, Penalties for failure to comply with the CMA’s markets investigatory powers, and Penalties for failure to comply with the CMA’s mergers investigatory powers.

Step 1 – Understand the nature of the request

Step 2 – Information gathering

Step 3 – Preparation of the response

Explanatory notes

Legal framework

As noted above, the CMA has various powers under the EA02 and the CA98 to gather information to support its decision-making functions. These include the power to impose:

• notices requiring the attendance of witnesses; production of documents; or supply of estimates, forecasts, returns or other information in phase 1 and phase 2 mergers and markets investigations (sections 109 and 174 of the EA02); and
• requirements to provide information or documents or certain other requirements in antitrust investigations (sections 26, 26A, 27, 28 or 28A of the CA98).

The focus of this checklist is on responding to an information request requiring the production of documents and/or provision of information.

The penalties for non-compliance with information requests are more particularly set out in Quick views: Penalties for failure to comply with the CMA’s mergers investigatory powers, Penalties for failure to comply with the CMA’s markets investigatory powers and Penalties for failure to comply with the CMA’s Competition Act 1998 investigatory powers. Failures to comply may also lead to the imposition of financial penalties and there are certain criminal offences relating to interference with the CMA’s investigatory powers.

Step 1 – Understand the nature of the request

As set out above, there are penalties for non-compliance with formal information requests and an organisation’s approach to information requests is important in developing a productive dialogue with the CMA throughout the course of an investigation. Therefore, it is important that everyone in your organisation who will be involved in the provision of the response to the information request is fully aware of the nature of the request. This is particularly important if your organisation does not have experience in responding to information requests from the CMA or to similar requests from other regulators.

1.1 Ensure that you understand whether the request is in draft or final form

When you receive an information request, you should first determine whether the request is in draft or final form. If the request is in draft form then there are additional steps that you will need to take alongside the general actions set out in Step 1. These are explained in more detail below.

1.1.1 Draft information requests

In certain circumstances, rather than issuing an information request in final form, the CMA may send a draft of its proposed information request. Sending an information request in draft gives the recipient an opportunity to identify whether any suggested requests (or parameters of requests) are likely to be irrelevant. It may also help to assess the likely volume of responsive documents and allow the CMA to consider whether the scope should be narrowed.

It is important to note that, where the CMA has issued a draft request:

• the CMA may be less willing to agree an extension where the timescale has been discussed; and
• the CMA may be more likely to impose a penalty for failure to comply with investigatory requirements.

Noting the above possible consequences of a draft request, it is therefore important that recipients of a draft request give as much consideration as possible to the potential issues raised by the requirements of the draft information request in order to be able to raise them with the CMA. Such issues might include:

• whether any requests or stated parameters of a request are irrelevant, for example, in respect of the targeted custodians or time periods;
• whether the use of any search terms or parameters provided are likely to yield an overly broad (or narrow) pool of potentially responsive documents or false positives;
• whether there are any anticipated issues in obtaining access to or in the gathering of the requested documents; and
• whether the time limits are sufficient to allow for provision of a compliant response.

If the CMA provides a draft information request, the time that recipients are given to provide comments on the scope of the requests will depend on the nature and scope of the request. In practice, the time allowed for comments is usually limited and generally too short to allow for potentially responsive documents to be gathered in a way that the parties can actually assess the volume of potentially responsive documents and the practicality of responding within the proposed deadline for the provision of documents. Therefore, in responding with comments on a draft notice it may be prudent to note where any comments have been provided prior to the information gathering and therefore before any sense of the volume of responsive documents and the feasibility of responding within the stated deadline could reasonably have been ascertained. Once the information request has been formally issued, should it become clear that there may be issues in meeting the stated deadline, engage with the CMA as soon as possible, see further step 2.7.

Following issuance of the draft information request and prior to the issuance of a formal information request, it may be prudent to begin work on gathering the requested information. Even if the scope of some requests subsequently narrows or the deadline for response is extended, there is usually work that can be done (see further Step 2) to progress information gathering or the preparation of the response.

1.2 Ensure that you understand to whom the request is addressed

Although perhaps obvious, within the context of often complicated corporate structures, it is important to understand who is required to respond to the information request. Information requests will usually include a definitions section at the start of the request. Read this carefully as this understanding will feed into the approach taken to responding to the information request and which documents will be within scope.

1.3 Ensure that you understand the scope of the powers behind the request

It is important to ensure that you understand the statutory powers that underlie the relevant information request. This will help you to understand the consequences of failure to comply (see further step 1.5), possible other means of information gathering that might be available to the CMA and also the scope of the CMA’s powers.

An understanding of the CMA’s statutory powers will form the foundation of any challenge if you find that the CMA are not acting within their powers with regard to information requests.

1.4 Ensure that you understand the deadline

It is important that you understand any deadlines for the provision of information. These must be met as part of compliance with the information requests. Diarise any deadlines and communicate them to all of those involved in responding to the information request.

The CMA often takes a staged approach to deadlines, issuing one information request broken down into several parts, each part containing a number of requests and with each part requiring a response by a different deadline. Where this occurs, it is usually the case that the shortest deadline is for those requests that the CMA considers the simplest to respond to, with the later deadlines tending to be reserved for more complicated or extensive requests.

1.5 Ensure that you understand the consequences of failure to comply

Failure to comply with the requirements of a statutory information request can lead to serious consequences. Therefore, it is vital that all involved in responding to an information request understand the importance of compliance. Senior management should convey this message and allocate appropriate resources to ensure that those involved are able to dedicate sufficient time and energy to their role in responding.

1.5.1 Information requests made informally

Although there are no formal penalties for failure to comply with a request for information made by the CMA not using its statutory powers, failure to respond could lead the CMA to decide to exercise their formal powers to gather information.

1.5.2 Information requests made using formal powers

When the CMA exercise their formal powers of information gathering, non-compliance can have severe consequences. Non-compliance can lead to fines (in a fixed amount, daily amount or a combination of both) or may amount to a criminal offence.

Further information on the consequences of non-compliance can be found in Quick views: Penalties for failure to comply with the CMA’s mergers investigatory powers, Penalties for failure to comply with the CMA’s markets investigatory powers and Penalties for failure to comply with the CMA’s Competition Act 1998 investigatory powers.

Step 2 – Information gathering

Once the nature of the request is understood, the process of gathering the requested information in order to respond to the request can begin. As the consequences of non-compliance with an information request may be serious, it is important that time is taken at this stage to ensure that processes for gathering the requested information are robust and well-documented.

2.1 Consider the need for document preservation measures

If measures have not already been taken to preserve documents as part of any prior contact with the CMA, once an information request has been received, you must take steps to preserve potentially responsive documents.

Measures taken to preserve documents will vary depending on the nature of the investigation in progress and also any extant processes for retention of internal documents. Such measures may include the issuance of a legal hold notice to employees who may be in possession of relevant documents, the suspension of document destruction or deletion processes, or the need to introduce mechanisms to ensure that outgoing employees’ documents are secured.

Once in force (anticipated to be in late 2024), section 121 of the Digital Markets, Competition and Consumers Act 2024, will apply where a person knows or suspects that an investigation into a suspected infringement of the Chapter I or Chapter II prohibition is, or is likely to be, carried out by the CMA. When this is the case, the person must not falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of, a document which the person knows or suspects is or would be relevant to the investigation. Section 121(3) of the DMCC will introduce new civil penalties for breach of this duty. 

In practice, for those companies under investigation, the duty would most likely arise from when a business receives a case initiation letter from the CMA and so will be aware that its conduct is under investigation (but could arise earlier). The content of the information request may help in understanding the potential scope of the investigation and therefore the breadth of documents that should be preserved.

For third parties operating in the same sector as companies under investigation (or who might have relevant documents), the publication of the opening of the investigation will likely be the first trigger for the need to implement document preservation. Receipt of an information notice, however, may provide information on the scope of the investigation and may lead to the need to re-assess which documents may need to be preserved.

2.2 Identify and engage appropriate resources

In order to respond to an information request, you should identify and engage appropriate resources. Information requests may be substantial in nature and involve tight timescales; therefore, give early consideration to whether responses can be managed in-house using only internal resources, or whether to engage external advisers or third-party providers to supplement internal resources during information-gathering processes.

The type of resources that may be necessary will depend on a variety of factors, including:

• the nature of the information request and the CMA’s investigation;
• the existence of any parallel proceedings in other jurisdictions that might require management or coordination;
• the means by which information is to be gathered;
• the type of information that is being requested;
• the volume of information to be gathered and considered for relevancy;
• the issues raised by the information requested; and
• the availability of internal business resources and expertise in-house.

2.2.1 Internal resources

Internal resources may include those listed below.

• Internal legal counsel – they are likely to play a key role in coordinating the internal response to information requests and liaising with external counsel (as necessary and appropriate). Legal counsel should ensure that the potential consequences of non-compliance are fully understood within the business.
• Employees –they may be custodians of documents or may be required to provide information to enable responses to be drafted to the CMA’s requests for information.
• IT personnel – internal IT personnel will likely need to play a part in responding to the CMA’s information request; the nature of their role will depend on the nature of the information to be gathered and any external resources employed, but may range from simply allowing external IT specialists access to IT systems to gathering information.
• Senior management – they should ensure that appropriate resources are dedicated to responding to the information request whilst maintaining business-as-usual functions. Senior management should also ensure that employees understand the importance to the business of responding to information requests fully and by the stated deadlines. Senior management should also sign off the final version of the response to the information request before submission to the CMA.

Although the sole use of in-house resources may be sufficient in some circumstances to respond to information requests, note that the CMA has given relatively short shrift to companies that have failed to comply with information requests in circumstances where external resources were not engaged. For example, in the context of the anticipated acquisition by JUST EAT plc of Hungryhouse, the CMA decided to impose a penalty of £20,000 on Hungryhouse for failure, without reasonable excuse, to comply with an information notice issued under section 109 of the EA02. In doing so, the CMA noted that ‘Hungryhouse and its legal advisers should therefore have been aware that Hungryhouse would be required to respond to substantial information requests during the initial stages of the Inquiry. Hungryhouse should have ensured that sufficient resources were made available in order to do so’. The CMA also stated that ‘if Hungryhouse did not have sufficient resources in-house, the CMA notes that parties to merger investigations can, and frequently do, engage their external advisers and/or third party providers to supplement their resources during information-gathering processes’.

2.2.2 External resources

External resources that might be engaged in order to respond to a CMA information request may include those listed below.

• External legal counsel – depending on the CMA’s proceedings, external counsel may already be engaged and leading the process (eg, within the context of a merger). External legal counsel have the benefit of experience in responding to CMA information requests and in circumstances where regulators from multiple jurisdictions are investigating (eg, in respect of a merger that is being examined by a number of different jurisdictions) and will be able to work with counsel in other jurisdictions on issues that are relevant to more than one jurisdiction.
• External IT specialists, including device forensic experts – depending on the nature of the organisation in question, the information request and in-house expertise, it may become necessary to engage external IT specialists to assist with the collection of documents. Where forensic imaging of mobile devices (eg, mobile phones, laptops, etc) is required, you may need to engage specialist support.
• Document review and e-discovery providers – depending on the nature of the allegation and scope of the investigation, the number of documents yielded may be large (even if limited to certain time periods or custodians). Where the universe of documents is large then the services of a document review platform may need to be employed in order to manage the review. Review platforms allow for various operations to be performed on the data which help to identify relevant documents:
  • de-duplication;
  • email threading;
  • narrowing results by time period, custodian and/or search terms; and
  • predictive coding through artificial intelligence.

Although they may not be directly involved in the process of responding to CMA information requests, as a related matter, many parties will often also engage with economists where information requested is of a financial nature and where the CMA’s enquiry will involve economic modelling and analysis, and where economic submissions will likely be required or will be desirable.

2.3 Ensure that all those involved in responding understand the scope of the requests

Ensure that the scope of the request is communicated to and understood by everyone involved in the process of gathering information and responding to the information request, particularly with regard to the scope of documents sought (which may include both electronically held documents but also documents in hard copy). For some involved it may be sufficient to send them a copy of the information request, for others it may be necessary to explain and discuss the requests on a call or to pull out and convey only limited parts of the information request. Tailor the approach to the individual in question, their experience of such exercises and their role within the process of responding to the information request. Throughout the process, those involved should have a clear understanding of the person to whom they can address any questions.

2.4 Establish a methodology and identify (potentially) responsive documents

In respect of each individual request, identify the universe of potentially responsive documents and gather those documents in order to review them for responsiveness and privilege. Establish and follow a methodology to respond to each request. Document the methodology. This is particularly the case for information requests where the CMA has requested that the methodology for responding to its requests is provided in the response. But even where this is not the case, this is a matter of good practice as it will ensure that a consistent approach is taken to document searches and will assist in identifying potentially responsive documents.

Recipients of information requests are generally encouraged to engage with the CMA on their approach to information gathering at an early stage, although the CMA notes in respect of mergers that 'It is ultimately the parties’ responsibility to ensure that relevant material is produced in response to a document request. The CMA may engage with merging parties on whether the proposed approach is sensible and practical (and, in particular, seek to ensure that specific questions do not impose a disproportionate burden on the merging parties). The CMA may, in particular, engage with parties on the number of responsive documents generated by specific search terms in order to ensure that the approach envisaged would not result in a disproportionate number of documents being produced. The CMA will not, however, be able to pre-emptively give assurances that no breach of the section 109 notice would occur in the event that relevant material later comes to light which parties could and should have provided'.

Establishing a methodology involves consideration of the following matters.

2.4.1 Custodians

Custodians are those who will have information or documents relating to the information request. Where the CMA has sought to engage with the recipient of the information request by means of issuing a draft request or where the CMA’s enquiries are more advanced, the custodians in question may be identified by the CMA itself. The identity of custodians included within the scope of requests for internal documents is likely to be driven by involvement in or influence over commercial decision-making in relation to the matters under investigation.

2.4.2 Time parameters

The time parameters of a request may be explicitly stated by the CMA in the information request or may need to be determined by reference to the scope of the request – for example, a request for any documents relating to a certain project may mean that the start date for the time period is the first date on which the project was discussed.

2.4.3 The approach taken to searching a custodian’s IT environment

Consider where responsive documents may exist within a custodian’s IT environment, including email systems, instant messaging systems, document storage systems (including local folders, cloud services and external media).

Ensure that the functionality of any tools used to interrogate the IT environment is well understood. This is important in determining whether compliance with the requirements of the information request will be achieved.

Where issues with encryption or password protection are likely to arise, concerns should be raised with the CMA as early as possible.

Manual searches

The CMA does not exclude the possibility that in some cases perhaps for smaller merging parties or where the information sought is less material to the matters that the CMA is investigating, it might be appropriate for a party responding to an information request to have certain business people ‘self-select’ potentially responsive documents (eg, based on searching their own email folders). However, where manual searches are employed, it is incumbent on the recipient of the information request to ensure that the results produced are sufficiently robust.

Where manual searches are employed, it is prudent for records to be kept about how custodians carried out their searches and which documents were deemed to be irrelevant. Such records might be important where it later becomes clear that there were issues in applying the methodology and where the CMA might reasonably be expected to verify how a search methodology was applied in practice.

Search terms

In most cases, in order to identify responsive documents, it is likely that search terms may need to be employed. Formulate searches in such a way that they are broad enough to identify responsive documents. The CMA has in the past criticised the use of narrow search terms to identify responsive documents.

Maintain a full record of the search terms used to respond to the information request (including any Boolean searches used), along with the numbers of results produced by each search.

2.4.4 The approach taken to documents that are not text-searchable

Where non-electronic documents fall within the scope of an information request, give consideration to the search for and production of these documents. As these, by their nature will not be text-searchable, a more manual review will likely be required. The CMA may also ask parties to explain to what extent documents were manually searched (and the approach adopted to such review).

Consider the means of production of non-electronic documents and where these are likely to contain a large degree of responsive information, it may be helpful to discuss their production with the CMA, who generally expect all documents produced in response to information requests to be text searchable.

2.4.5 Family items

When gathering documents, consider the approach to ‘family’ documents. An email ‘family’ commonly refers to a ‘parent’ email and all attachments (eg, an email and a word document attached to that email). The same principle applies where the parent document is a different type of file (eg, where a word document or Excel file is embedded in another word document).

‘Family’ items are typically considered to be responsive to information requests and therefore parties should ensure that all ‘family’ attachments are included along with responsive documents.

2.4.6 Metadata

Carefully consider the approach to metadata (such as document author and creation/modification dates), in conjunction with the CMA where necessary.

Parties should consider the points listed below.

• Which documents fall within the scope of an information request? The CMA in its guidance on requests for internal documents in merger investigations states that ‘Unless otherwise agreed with the CMA, a document will be responsive if any of the following dates, as recorded in the document or its metadata, fall within the specified period: document creation date, document sending date, document last editing/modification date. However, this approach may not be appropriate in other situations, depending on the scope of the information request.
• You should consider your approach to the transfer of metadata to the CMA. If metadata for certain responsive documents is unlikely to be available (or if providing metadata is likely to be particularly burdensome), this should be discussed with the CMA as early as possible.

2.4.7 Duplicate documents

Consider the approach to duplication and discuss with the CMA. There are a number of different potential approaches:

• case de-duplification – do not reproduce documents already provided to the CMA during the case in question;
• custodian de-duplification – remove duplicate files within a set of responsive documents relating to the same custodian; and
• production de-duplification – remove duplicate files within the set of documents produced in response to the full information request.

2.4.8 Draft documents

The approach to draft documents will vary depending on the nature of the CMA’s investigation and the scope of the information request. Within a CA98 or market investigation, draft versions of documents will likely fall within the scope of the information request, whereas within the context of a request for internal documents in relation to a merger, parties may not be expected to produce draft versions of documents, although note that within the context of mergers, the CMA typically considers draft documents to be responsive where they are attached to a responsive email.

2.4.9 The approach adopted to any privileged materials

See below step 2.5.2.

2.4.10 Document preservation measures

The CMA may ask parties what measures have been taken to ensure that potentially responsive documents in the parties’ custody or under their control on the date of the request remain available for production. See further in this regard step 2.1.

2.5 Review for responsiveness and privilege

Once the universe of potentially responsive documents has been identified and gathered, carry out a review of those documents in order to determine which documents are actually responsive to the information request and to identify any documents which should be withheld as being legally privileged.

2.5.1 Responsiveness

Documents that fall within the parameters of searches and that are responsive to search terms will need to be reviewed for responsiveness to the precise scope of the CMA’s information requests. Responsive documents can then be prepared for production and non-responsive documents excluded from the production set.

Depending on the volume of documents involved, document review platforms provide a platform upon which documents can be batched for review by review-team members and coded for responsiveness and privilege (see below). Where the nature of the documents is complex, it may be prudent to have different levels of document reviewers, with second-level reviewers considering those documents that raise questions as to responsiveness, and conducting spot checks for quality control purposes.

Record and maintain details of instructions given to a document review team.

2.5.2 Privilege

Under section 30 of the CA98, you do not need to produce or disclose privileged communications. Accordingly, review documents prior to their production to the CMA and redact or remove any privileged material from those documents that are responsive.

Where the CMA is informed that privileged materials have been redacted or removed from the final production, the CMA has indicated that, at least in merger investigations, it is likely to ask the parties to describe the process used to identify and withhold privileged materials and that parties may also be requested to provide a privilege log describing the documents withheld from production (or produced in redacted form) in non-privileged terms.

2.6 Run quality control checks

It is prudent to run quality control checks over the output of the document searches. The relevant custodians should be asked to review lists of responsive documents from their searched documents and asked to consider whether these represent the totality of responsive documents or whether there are any notable omissions. Any omissions noted should prompt an enquiry as to why those documents were not identified by the searches and any necessary adjustments should be made to ensure that all responsive documents are captured.

2.7 Address any issues

Where issues arise in the course of gathering documents, deal with them appropriately and in a timely manner. Doing so will help to maintain a good working relationship with the CMA investigatory team and may help to mitigate the risk to your organisation of a fine being imposed or being imposed at a high level.

Issues may manifest in one of two ways:

• it becomes clear that your organisation will not be able to respond to the information request by the stated deadline; or
• it becomes clear that a previous response to an information request was deficient.

Each of these is dealt with in turn below.

2.7.1 Inability to meet the deadline

The CMA’s ability to impose administrative penalties for non-compliance with a statutory information request is limited to those cases where there is no ‘reasonable excuse’ for a failure to comply with the information request. The CMA’s Administrative penalties: Statement of Policy on the CMA’s Approach states that 'The circumstances that constitute a reasonable excuse are not fixed and the CMA will consider whether any reasons for failure to comply amount to a reasonable excuse on a case-by-case basis. However, the CMA will consider whether a significant and genuinely unforeseeable or unusual event and/or an event beyond [a person’s] control has caused the failure and the failure would not otherwise have taken place'.

In July 2024, the CMA consulted on an updated version of administrative penalties: statement of policy on the CMA’s approach. The outcome of that consultation is awaited but similar wording appears in the draft consultation version.

If it becomes clear in the course of gathering responsive documents and preparing the response that there may be issues in providing a full and complete response to the information request by the stated deadlines, your organisation should contact the CMA at the earliest opportunity to seek to explain the difficulties in complying with the stated deadline and engage with the CMA as to the appropriate course of action, which may be that the CMA needs to grant an extension to allow further time for the gathering and/or review of documents to be completed, or the approach to the gathering of information or review may need to be modified. Having a well-planned and documented methodology will be important when discussing matters of anticipated non-compliance with the CMA as it should allow for an informed discussion regarding any modifications that could be made to the approach (eg, by narrowing the search terms or prioritising certain key custodians).

It is not stated or implied in the CMA’s guidance that early engagement with the CMA will be a factor in the CMA’s decision-making as to whether to impose an administrative penalty for failure to comply with an information request. However, the CMA has, in its decisions imposing penalties, often been critical of companies for failing to engage with the CMA at an early stage when problems are anticipated. For example, in its decision to impose an administrative penalty on Hungryhouse, the CMA noted ‘to the extent that Hungryhouse considered that performing a more comprehensive search would have been overly burdensome, it should have discussed this with the CMA (see paragraphs 74 and 80 above). Similarly, if Hungryhouse considered that the burden placed on it by the First s109 Notice was too great because it operates in the technology sector, and therefore deals with a large number of emails on a daily basis, it should have discussed this with the CMA . . . to the extent that Hungryhouse had concerns as to its ability to comply with the First s109 Notice by the relevant deadline, Hungryhouse should have discussed those concerns with the CMA. Instead Hungryhouse decided, unilaterally, to follow a process which failed to identify responsive documents, and Hungryhouse ought to have been aware that this was a substantial risk’.

Early and productive engagement with the CMA may help to avoid a matter reaching the point where the CMA is minded to impose a penalty.

2.7.2 Previous deficient response

If it becomes clear at any point in time, that a previous response to an information request was deficient in some regard (eg, because it comes to light that documents that should have been produced were not), take steps to remedy the non-compliance as soon as possible.

From its decisional practice, it is clear that the CMA expects that having identified a breach of a CMA investigatory requirement, companies will take steps to rectify the breach. Although rectification is expected by the CMA, the taking of immediate steps in circumstances where the CMA finds it appropriate to impose a penalty, may mitigate the level of the penalty.

Step 3 – Preparation of the response

Gathering responsive documents is only part of the process of responding to an information request from the CMA. This step outlines other actions that will need to be taken.

3.1 Draft responses to information requests

Not all information requests may require documents to be produced. Some information requests may require, for example, an explanation of how certain aspects of the organisation, its products or its markets operate. Alternatively, information on customers, suppliers or competitors might be required. Do not assume that responding to these requests will be less time-consuming than those requests for which documents will need to be located and produced. These requests may be complex in nature, requiring significant business input. Depending on the nature of the CMA’s proceedings, the response may need to be a carefully considered piece of advocacy requiring input from internal and external counsel, economists, and sign-off by senior management.

3.2 Ensure that documents to be produced are formatted appropriately

Within the context of merger notifications, the CMA has issued some guidance on providing initial documents to the CMA. This provides some high-level guidance on the titles of documents and format.

Whilst issued in the context of mergers, this guidance does reflect both sensible guidance and the CMA’s expected approach with regard to files – for example, it requests that spreadsheets, charts and all other digital source data files, as far as possible, be submitted in Microsoft Excel or their equivalent original format, to facilitate the CMA’s internal analysis. Note that where spreadsheets are submitted without the underlying formulae, whether in hard copy or electronically, the CMA is likely to ask for such information.

3.3 Consider the means of provision of the documents to the CMA

In good time ahead of the deadline for submission, consider the means by which documents will be provided to the CMA.

In most cases, the volume of documents responsive to an information request will exceed the file size that can be transferred by email. Therefore documents will usually be required to be transmitted by a secure means of file transfer. It is possible that the CMA may mandate a means of transfer and any limits on this should be understood and complied with in advance (eg, the CMA has in certain circumstances, required use of its own file transfer site and the use of this required advance notification of the IP address that the upload would be made from).

Allow sufficient time in advance of the stated deadline for the upload of documents to be completed. In the days of remote and hybrid working, ensure that whoever will be uploading the documents has a sufficiently fast internet connection to upload the documents in good time, either from home, or an office with high-speed internet if necessary.

Additional resources

Competition & Markets Authority – Administrative penalties: Statement of Policy on the CMA’s approach
Competition & Markets Authority – Guidance on requests for internal documents in merger investigations

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