All Change for the UK Merger Regime – Except the Standard of Review?

In this blog post, author Stijn Huijts takes a look at the United Kingdom’s long-standing merger control decision-making structure and the legal implications of the government’s proposal to abolish the independent panel model at Phase 2. He explains how the UK system evolved from the dual-institution OFT/Competition Commission framework to the CMA, while retaining independent panels to safeguard impartiality in in-depth merger reviews.

Huijts outlines the current debate over whether removing the independent panel should trigger a change in the standard of appeal before the Competition Appeal Tribunal (CAT), from judicial review (JR) to a full merits review. While some commentators argue that independence at first instance justifies JR, the government maintains that JR should remain the applicable standard, consistent with the Enterprise Act 2002. The post examines whether human rights law—particularly Article 6 of the European Convention on Human Rights—compels a different conclusion.

Drawing on European and UK case law, the author explains that merger control is classified as a civil, not quasi-criminal, regime, and therefore does not require full merits review to satisfy Article 6. What matters instead is the “composite procedure” as a whole: whether the combination of administrative decision-making and judicial oversight provides adequate safeguards, including reasoned decisions, procedural fairness, and sufficiently robust scrutiny by the reviewing court.

Huijts concludes that abolishing the independent panel does not, in itself, legally necessitate a shift to full merits review. However, he cautions that the legitimacy of the new system will depend on maintaining strong procedural protections within the CMA and an appropriately intensive JR by the CAT, consistent with its specialist role. Enhancing these safeguards, rather than reframing the appeal standard, would better support the government’s ambition for a best-in-class, business-friendly competition regime…

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