On 23 June 2020, the UK government added public health emergencies to the definition of “public interest” for the purposes of the Enterprise Act 2002. This permits the UK to intervene on public interest grounds in any transaction which meets the UK merger control regime’s thresholds and is connected with the UK’s “capability to combat, and to mitigate the effects of, public health emergencies”. This is more open-ended than first appears and could capture a broad array of transactions.
In addition, the UK government will shortly add artificial intelligence (“AI”), cryptographic authentication technology and advanced materials to the list of “relevant enterprises” first established in 2018, meaning that any transaction involving a target active in these areas in the UK will be subject to lower thresholds in applying the UK merger control regime and any public interest intervention, adding uncertainty to deals in these sectors.
There are also likely to be further changes to the UK government’s powers of intervention as it has said that it plans to shortly bring legislation before Parliament to implement a consultation carried out in 2018 on both extending the UK’s national security review regime and placing it on a new statutory footing.