Facebook, Inc (now Meta Platforms, Inc) and Giphy, Inc Merger - the CMA orders divestiture as part of final order

On 6 January 2023 the Competition and Markets Authority ("CMA") made its final order in respect of the completed merger between Facebook, Inc (now Meta) ("Meta") and Giphy, Inc ("Giphy") (the "Final Order").

The Final Order comes around two and a half years after the Initial Enforcement Order into the merger was made (commencing on 9 June 2020), where the CMA gave notice that it was considering whether or not the merger situation resulted in (or was expected to result in) a substantial lessening of competition in any markets within the UK.  Under the Enterprise Act 2022, the CMA has a statutory duty to make references to completed measures where it suspects such an effect to competition as a result of the creation of a "relevant merger situation" (i.e. where two or more enterprises cease to be distinct and the turnover of the enterprise being taken over exceeds £70m).   

Fast forward to January 2023, and through the various procedural steps along the way (including but not limited to derogation requests, the launch of the merger inquiry, the making of interim orders, and the remittal by the Competition Appeal Tribunal on the CMA finding and final decision), we now have some clarity on the position.  

Through the Final Order, and among several other obligations imposed on Meta and Giphy by the CMA, Meta have been ordered to divest Giphy to a suitable purchaser approved by the CMA.  The criteria on which such suitability is determined, will be assessed based on matters including (i) the independence of the proposed purchaser (i.e. that there are no compromising significant connections or conflicts of interest); (ii) the capability of the proposed purchaser (i.e. that it has appropriate financial resources in place); and (iii) the commitment of the proposed purchaser (which the CMA may look to satisfy itself of).  In addition, the CMA must be confident that divestiture to the proposed purchaser does not in itself create competition concerns.