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DE RUEHLO #3415/01 2491639
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R 061639Z SEP 07
FM AMEMBASSY LONDON
TO RUEHC/SECSTATE WASHDC 5244
INFO RUCPDOC/DEPT OF COMMERCE WASHDC
RUEATRS/DEPT OF TREASURY WASHDC

UNCLAS LONDON 003415 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: EINV UK
SUBJECT: UK SELDOM INTERVENES IN FOREIGN DIRECT INVESTMENT 
TRANSACTIONS 
 
REF: GAO REF NO 120600: FOREIGN INVESTMENT ENGAGEMENT 
 
(U) 1. SUMMARY: FDI is regulated in the UK without regard to 
the domicile of the parties in accordance with provisions of 
the UK Enterprise Act of 2002 and EU merger control 
legislation.  Government review is normally focused on the 
potential for increased concentration based on a transaction 
exceeding established sales or market share thresholds.  Such 
reviews are conducted by the Office of Fair Trade (OFT).  If 
deemed necessary, transactions are referred to the 
Competition Commission (CC) for detailed investigation. 
While rare, intervention in a transaction when no competition 
issues are present is possible when the Secretary of State, 
Department of Business, Enterprise and Regulatory Reform 
(DBERR) deems it is in the public interest.  However, such 
intervention can only be asserted with regard to transactions 
involving national security or the media.  Only two such 
interventions have ever been initiated: one on national 
security grounds that was allowed to proceed with statutory 
undertakings and one in the media that is still under review. 
 
(U) 2. The following report is in response to ref request 
from the General Accounting Office (GAO).  Information is 
derived from interviews with Jonathan Cook (protect), 
Assistant Director, Mergers and Competition Regime, 
Department of Business, Enterprise, and Regulatory Reform and 
two partners at the law firm of McDermott Will & Emery, Scott 
¶S. Megregian (protect) and Alasdair Bell (protect).  Detailed 
report, keyed to questions in the GAO questionnaire follows 
in paragraph 3. END SUMMARY 
 
 
(U) 3. Text of GAO Foreign Direct Investment Engagement 
Follows: 
 
Questions for Post - London 
GAO Foreign Direct Investment Engagement (120600) 
 
 
Background 
 
(1.)  Are you aware of any particular past events that may 
have helped to shape the FDI policy in the UK? 
 
As an island nation, the UK has historically been a trading 
economy.  Accordingly, it strongly supports free trade and 
the elimination of trade barriers.  Likewise, the UK has a 
long history of welcoming FDI and makes no policy distinction 
between domestic and foreign investment apart from the two 
exceptions noted below as regards investments in the media 
and those affecting national security.  With respect to 
regulating merger activity, the key event shaping UK policy 
on FDI is the EU Merger Regulation that came into affect in 
¶1990.  The UK is subject to EU law, and since the EU Merger 
Regulation details the legitimate bases to intervene in 
mergers, it shapes the UK policy on FDI. 
 
 
(2.)  Has U.S. policy regarding FDI review influenced FDI 
regulation in the UK? 
 
UK interlocutors say that U.S. policy regarding FDI review 
has not influenced FDI regulation in the UK. 
 
 
Laws and Policies 
 
(3.)  Please generally describe the policies of the UK 
government towards Foreign Direct Investment (FDI). 
Specifically, we would like to understand the policies that 
apply to mergers and acquisitions of British companies by 
foreign owned companies. 
 
In general, the UK treats foreign and domestic investments 
equally.  The Mergers and Competition Regime at DBERR 
(formerly called the Department of Trade and Industry) 
oversees the UK governments activities related to the review 
of mergers and acquisitions and our interlocutors confirm 
that the domicile of the parties makes no difference.  The UK 
is subject to EU law (i.e. the Merger Regulation administered 
by the EU Merger Control Commission) and UK law cannot be 
contrary to EU law explained Jonathan Cook (protect), 
Assistant Director, Merger and Competition Regime, Consumer & 
Competition Policy Directorate at DBERR at an August 20, 2007 
meeting.  He said further that EU law dictates that 1) UK law 
cannot be contrary to EU law in this area, and that 2) UK law 
cannot discriminate against either EU or non-EU investors. 
He explained that both foreign and domestic investors may 
seek judicial remedy from either the EU Court of Justice or 
the UK High Court if either of these dictates is contravened. 
 
Although the focus of EU merger control regulation is 
evaluating the concentration affect of proposed mergers and 
acquisitions, EU law gives each EU member state the right to 
intervene in a transaction when it is deemed to be in the 
public interest to do so.  Currently, the UK Enterprise Act 
of 2002 specifies only two areas in which the assertion of 
public interest gives the UK government the right to 
intervene in merger and acquisition transactions that present 
no competition issues.  The two areas are 1) national 
security, and 2) media. 
 
While the assertion of public interest in these two areas may 
result from the takeover of a British firm by a foreign 
investor and could therefore be considered a means of 
regulating foreign investment, our interlocutors point out 
that the assertion of public interest can also occur when all 
parties of a transaction are British.  They note further that 
the burden is on the member state to justify intervention on 
the basis of public interest, and that DBERR considers the 
potential for judicial action by the merger and acquisition 
parties when considering intervention on the grounds of 
public interest. 
 
In summary, the Enterprise Act of 2002 lays out the grounds 
for intervention in UK mergers and acquisitions regardless of 
the domicile of the partners.  The grounds are principally 
based on the potential for increased concentration. 
Qualifying transactions are defined as any where 1) the 
turnover (sales) exceeds GBP 17 million annually or 2) the 
relevant market share exceeds 25%.  Additionally, the UK may 
intervene in a merger and acquisition transaction of any size 
in the areas of national security or the media if the 
government deems it is in the public interest to do so and 
the Secretary of State issues a Special Intervention. 
 
Note that there is no pre-notification requirement for a 
merger and acquisition transaction.  The parties are free to 
close without consulting with the government, but they are 
taking a risk if government intervention is possible/likely 
based on the criteria cited above.  The government has 4 
months post closure to decide whether to intervene in a 
transaction. 
 
How the process works: 
 
If a transaction is a qualifying transaction, (see above), 
then the OFT is the first department to review it.  If the 
OFT determines that there is potential for anti-competitive 
consequences from the transaction it refers it to the CC for 
further review.  The CC may consult with the merger and 
acquisition parties and normally issues decisions in 30 days. 
 Its review is based on the established principles of the EU 
Merger Commission. The CC can OK a qualifying transaction, it 
can reject it, or it can negotiate statutory undertakings 
with the parties as conditions for the CC approving the 
transaction.  Once a transaction is approved, the decision is 
final.  It cannot be reopened, modified or reversed. 
 
In the event a transaction involves the media or might 
reasonably be expected to raise concerns of national 
security, then it is normal to consult informally with the 
interested UK agencies and negotiate statutory undertakings 
in order to avoid post-closing government intervention on the 
basis of public interest.  DBERR's Jonathan Cook (protect) 
gave an example of a proposed foreign takeover of a British 
defense contractor subject to the Official Secrets Act.  The 
parties would normally consult in advance with the UK 
Ministry of Defense (MOD) and negotiate acceptable statutory 
undertakings so that the issue of intervention would not 
arise. 
 
In the event that the MOD was not consulted or could not 
negotiate acceptable statutory undertakings, then the 
prospect of intervention on the basis of public interest 
arises.  DBERR is the department charged with recommending 
intervention on the basis of public interest.  If 
intervention is recommended, then it is the UK Secretary of 
State at DBERR that issues a Special Intervention that refers 
the matter to the CC for further review. 
 
Regarding the potential for political pressure being brought 
to bear on DBERR to intervene in a transaction, Cook said 
that political pressure is greatest to ensure that government 
actions conform to the law.  He sees little potential for 
political pressure on DBERR to intervene in individual 
transactions or in areas other than national security or the 
media. 
 
(4.)  Does British law provide a legal framework designed to 
monitor FDI for national security reasons? 
 
(See 3. above) 
 
 
(5.)  The following laws have been identified as relevant to 
managing FDI in the UK: 
"     The Industry Act of 1975 
"     The Enterprise Act of 2002 
"     The Finance Act of 2004 
"     The Competition Act of 1998 
Are there any others that are directly relevant to FDI? 
 
According to DBERR, the Enterprise Act of 2002 is the law 
relevant to managing FDI in the UK. 
 
 
(6.)  It is our understanding that the Secretary of State has 
the authority to intervene in certain mergers and refer them 
to the Office of Fair Trading and the Competition Commission 
on the grounds of "public interest", defined in the 
Enterprise Act of 2002 as national security, or if the merger 
involves classified defense contracts. 
 
a.    Please explain the reviews conducted by the Competition 
Commission, and how that intersects with a review for public 
security related concerns. 
 
See 3. above 
 
 
b.    Please explain the roles/responsibilities that the 
Secretary of State, the Office of Fair Trading, and the 
 
SIPDIS 
Competition Commission have in initiating and conducting a 
review of FDI. 
 
See 3. above  Also, the OFT is the department that reviews 
all merger and acquisition transactions in the UK above the 
sales (turnover) and market share thresholds specified in the 
Enterprise Act of 2002.  If a transaction does not exceed a 
threshold, then the OFT has no authority to refer a 
transaction to the CC for review.  Further, the OFT's 
authority is restricted to assessing the potential for 
anti-competitive consequences of a transaction.  When the OFT 
finds a basis for anti-competitive consequences, its sole 
authority is to refer the transaction to the CC for review. 
Reviews by the CC must be completed within 6 months, although 
many are completed in as little as 30 days. 
 
 
c.    To your knowledge are mergers or acquisitions involving 
UK defense contractors reviewed prior to completion of the 
deal? 
 
See 3. above  Also, our interlocutors indicate that 
effectively all mergers or acquisitions involving UK defense 
contractors are discussed informally with the MOD to identify 
and resolve government concerns prior to completion of a deal. 
 
 
d.    Please provide any examples of cases reviewed because 
of "public interest" or security reasons.  Has the authority 
to block such investments ever been used? 
 
There have only been two transactions that raised no 
competition issues in which the Secretary of State issued a 
Special Intervention in the public interest.  Neither has 
resulted in a transaction being blocked, although one is 
still under review by the CC. 
 
The first is in the defense industry and government 
intervention was based on grounds of national security.  The 
transaction was the proposed acquisition by Lockheed of Insys 
in 2005.  The Special Intervention came as a surprise to the 
parties that had been in discussions with the MOD.  The 
transaction had not closed when the Special Intervention was 
issued, but did close once satisfactory statutory 
undertakings had been negotiated.   Our interlocutors said 
that issuance of the Special Intervention gave the government 
greater influence over the outcome, and that the existence of 
statutory undertakings gives the government a clear judicial 
course of action in the event that the undertakings are not 
followed. 
 
The second Special Intervention in the public interest was in 
the media field.  It involves the acquisition by Rupert 
Murdock of 17.9% of the shares of the media company, BSkyB. 
The review by the Competition Commission and the UK Office of 
Communications is ongoing.  A decision is expected in 
November.  This intervention came as a surprise to the UK 
government that learned about it in the newspapers.  Note 
that the Special Intervention in this case first required 
that the OFT rule that the share purchase was a "merger". 
 
Purchase of more than 20% of the shares of a company is 
generally understood to be a "merger" under UK and EU 
regulations and the purchase of less than 10% of the shares 
is understood to not be a merger.  The BSkyB transaction fell 
between these parameters.  Without the determination by the 
OFT that the transaction was a merger, the Secretary of State 
would have had no basis to issue a Special Intervention. 
n.b. there were no competition issues raised by the share 
purchase. 
 
 
(7.)  In addition to the laws/policies already mentioned, are 
there other laws/policies that are relevant for FDI 
regulation? Are there any other investment reviews or 
restrictions? 
 
There are no other laws/policies relevant to FDI regulation. 
 
 
(8.)  What, if any, differences exist in FDI laws/policies by 
level of government?  (Federal vs. provincial vs. local, etc.) 
 
There are no differences in FDI laws/policies by level of 
government. 
 
 
(9.)  What types of barriers / incentives does the UK have in 
place to restrict / encourage FDI? (e.g. corporate taxation 
rates.) 
 
As discussed in 3. above, Cook at DBERR says that any UK 
barriers/incentives to restrict/encourage UK investment must: 
1) comply with EU law, 2) not be contrary to EU law, and 3) 
not discriminate against either an EU or non-EU investor. 
Accordingly, the treatments of foreign and domestic 
investments are the same. 
 
 
Practices 
 
(10.)   Outside of what is written in the laws/policies, what 
factors in practice contribute to how FDI regulation 
decisions are made? (national security, local politics, 
economic protectionism, etc.) 
 
See 3. above 
 
 
(11.)   To the extent you are aware, is there any implicit or 
explicit political influence involved in the FDI regulation 
process? 
 
See 3. above. 
 
 
(12.)  What is the UK government's attitude toward or policy 
on the investment of state-owned enterprises in the UK? 
 
Alistair Darling, Chancellor of the Exchequer, reiterated the 
UK policy toward sovereign funds' investing in the UK in his 
first speech as Chancellor.   The UK welcomes all FDI, 
including that of state-owned enterprises. 
 
 
(13.)   Can you provide any specific examples of recent FDI 
attempts (both successful and/or failed) that are 
representative of the way the system actually works in the 
UK? 
 
See 6 d. above 
 
 
Future Changes 
 
(14.) Are you aware of any particular current events or 
concerns in the UK that may have an effect on current FDI 
policy/process? (e.g. political elections) 
 
Post is not aware of any particular current events or 
concerns in the UK that may have an effect on current FDI 
policy/process. 
 
 
(15.) Please describe any changes that may be considered to 
modify the current laws, policies or practices for FDI 
regulation in the UK. 
 
DBERR explained that the matter of what grounds constitute an 
EU member state's national interest is still an evolving 
area.  Cook said that his office expects that the grounds for 
a state's intervening on the basis of its national interest 
 
will continue to narrow as a result of the need to justify 
intervention in the face of judicial remedies open to 
investors impacted by intervention based on national interest. 
 
 
Contact Requests 
 
(16.)   Can you suggest other experts we should consult on 
FDI in the UK? 
a.    For example, individuals in Washington D.C. that we 
should speak with including: 
i.    U.S. businesses with experience directly investing in 
the UK, especially those that have undergone government 
review and approval. 
ii.   Investment banks 
iii.  Academics and/or think tanks 
 
Post can facilitate introductions to its interlocutors but 
has no suggested contacts in the U.S. 
 
Visit London's Classified Website: 
http://www.state.sgov.gov/p/eur/london/index. cfm 
LeBaron