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Enterprise Act 2002, Cross Heading: Interim restrictions and powers is up to date with all changes known to be in force on or before 23 September 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.
Whole provisions yet to be inserted into this Act (including any effects on those provisions):
(1)Subsections (2) and (3) apply where—
(a)a reference has been made under section 22 [F1or 68B] but not finally determined; and
(b)no undertakings under section F2... 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
(2)No relevant person shall, without the consent of the [F3CMA] —
(a)complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;
(b)make any further arrangements in consequence of that result (other than arrangements which reverse that result); or
(c)transfer the ownership or control of any enterprises to which the reference relates.
(3)No relevant person shall, without the consent of the [F3CMA], assist in any of the activities mentioned in paragraphs (a) to (c) of subsection (2).
(4)The prohibitions in subsections (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.
(5)The consent of the [F4CMA] under subsection (2) or (3)—
(a)may be general or special;
(b)may be revoked by the [F4CMA]; and
(c)shall be published in such manner as the [F4CMA] considers appropriate for the purpose of bringing it to the attention of any person entitled to the benefit of it.
(6)Paragraph (c) of subsection (5) shall not apply if the [F4CMA] considers that publication is not necessary for the purpose mentioned in that paragraph.
(7)Subsections (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
(a)a United Kingdom national;
(b)a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c)a person carrying on business in the United Kingdom.
(8)In this section “relevant person” means—
(a)any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
(b)any subsidiary of any person falling within paragraph (a); or
(c)any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated.
Textual Amendments
F1Words in s. 77(1)(a) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 15
F2Words in s. 77(1)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 30; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F3Word in s. 77(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 117 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F4Word in s. 77(5)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 117 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
(1)Subsection (2) applies where—
(a)a reference has been made under section 33 [F5or 68C]; and
(b)no undertakings under section 80 are in force in relation to the relevant merger situation concerned and no orders under [F6section 72 or 81] are in force in relation to that situation.
(2)No relevant person shall, without the consent of the [F7CMA], directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.
(3)The consent of the [F7CMA] under subsection (2)—
(a)may be general or special;
(b)may be revoked by the [F7CMA]; and
(c)shall be published in such manner as the [F7CMA] considers appropriate for bringing it to the attention of any person entitled to the benefit of it.
(4)Paragraph (c) of subsection (3) shall not apply if the [F7CMA] considers that publication is not necessary for the purpose mentioned in that paragraph.
(5)Subsection (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
(a)a United Kingdom national;
(b)a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c)a person carrying on business in the United Kingdom.
(6)In this section and section 79—
“company” includes any body corporate;
“relevant period” means the period beginning with the making of the reference concerned and ending when the reference is finally determined;
“relevant person” means—
any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
any subsidiary of any person falling within paragraph (a); or
any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and
“
” means share in the capital of a company, and includes stock.Textual Amendments
F5Words in s. 78(1)(a) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 16
F6Words in s. 78(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 31; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F7Word in s.78(2)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 118 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
(1)For the purposes of this Part a reference under section 22 [F8, 33, 68B or 68C] is finally determined if—
(a)the reference is cancelled under section 37(1);
(b)the time within which the [F9CMA] is to prepare and publish a report under section 38 in relation to the reference has expired and no such report has been prepared and published;
[F10(c)the report of the CMA under that section contains the decision that—
(i)in relation to a reference under section 22 or 33, there is not an anti-competitive outcome, or
(ii)in relation to a reference under section 68B or 68C, there is not a prejudicial outcome;
(d)the report of the CMA under that section contains the decision that—
(i)in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
(ii)in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
the CMA has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
(e)the report of the CMA under that section contains the decision that—
(i)in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
(ii)in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
the CMA has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.]
(2)For the purposes of this Part the time when a reference under section 22 [F11, 33, 68B or 68C] is finally determined is—
(a)in a case falling within subsection (1)(a), the making of the decision concerned;
(b)in a case falling within subsection (1)(b), the expiry of the time concerned;
(c)in a case falling within subsection (1)(c), the publication of the report;
(d)in a case falling within subsection (1)(d), the making of the decision under section 41(2); and
(e)in a case falling within subsection (1)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
(3)For the purposes of section 78 and subject to subsection (4) below, the circumstances in which a person acquires an interest in shares include those where—
(a)he enters into a contract to acquire the shares (whether or not for cash);
(b)he is not the registered holder but acquires the right to exercise, or to control the exercise of, any right conferred by the holding of the shares; or
(c)he—
(i)acquires a right to call for delivery of the shares to himself or to his order or to acquire an interest in the shares; or
(ii)assumes an obligation to acquire such an interest.
(4)The circumstances in which a person acquires an interest in shares for the purposes of section 78 do not include those where he acquires an interest in pursuance of an obligation assumed before the publication by the [F12CMA] of the reference concerned.
(5)The circumstances in which a person acquires a right mentioned in subsection (3)—
(a)include those where he acquires a right, or assumes an obligation, whose exercise or fulfilment would give him that right; but
(b)do not include those where he is appointed as proxy to vote at a specified meeting of a company or of any class of its members or at any adjournment of the meeting or he is appointed by a corporation to act as its representative at any meeting of the company or of any class of its members.
[F13(5A)References in subsection (1) to a prejudicial outcome are to a prejudicial outcome within the meaning of section 35 or 36 as those sections have effect by virtue of paragraphs 6 and 7 of Schedule 5A.]
(6)References to rights and obligations in subsections (3) to (5) include conditional rights and conditional obligations.
(7)References in sections 77 and 78 to a person carrying on or having control of any enterprise includes a group of persons carrying on or having control of an enterprise and any member of such a group.
(8)Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of sections 77 and 78 to determine whether any person or group of persons has control of any enterprise and whether persons are associated as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
(9)[F14Section 1159 of, and Schedule 6 to, the Companies Act 2006] shall apply for the purposes of sections 77 and 78 to determine whether a company is a subsidiary of an individual or of a group of persons as they apply to determine whether it is a subsidiary of a company; and references to a subsidiary in [F15paragraph 8 of Schedule 6] as so applied shall be construed accordingly.
Textual Amendments
F8Words in s. 79(1) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 17
F9Word in s. 79(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 119(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F10S. 79(1)(c)-(e) substituted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 11(2)
F11Words in s. 79(2) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 17
F12Word in s. 79(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 119(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F13S. 79(5A) inserted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 11(3)
F14Words in s. 79(9) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 199(2)(a) (with art. 10)
F15Words in s. 79(9) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 199(2)(b) (with art. 10)
Modifications etc. (not altering text)
C1S. 79 applied (with modifications) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 13, Sch. 2 para. 8(9)(10)
C2S. 79: amendment to earlier affecting provision S.I. 2003/1592, Sch. 2 para. 8(9)(10) (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 17(9)(10) (with arts. 20-23)
(1)[F16Subsections (2) and (2A)] apply where a reference under section 22 [F17, 33, 68B or 68C] has been made but is not finally determined.
(2)The [F18CMA] may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
[F19(2A)Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.]
[F20(2B)A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an undertaking under this section.]
F21(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F21(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)[F22An undertaking] under this section—
(a)shall come into force when accepted;
(b)may be varied or superseded by another undertaking; and
(c)may be released by the [F23CMA].
F24(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)An undertaking which is in force under this section in relation to a reference under section 22 [F25, 33, 68B or 68C] shall cease to be in force if an order under section 81 comes into force in relation to that reference.
(8)An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 [F26, 33, 68B or 68C] is finally determined.
(9)The [F27CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
(10)In this section and section 81 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the [F28CMA's] decisions on the reference.
Textual Amendments
F16Words in s. 80(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F17Words in s. 80(1) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 18
F18Word in s. 80(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F19S. 80(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F20S. 80(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F21S. 80(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F22Words in s. 80(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F23Word in s. 80(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F24S. 80(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F25Words in s. 80(7) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 18
F26Words in s. 80(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 18
F27Word in s. 80(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F28Word in s. 80(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
(1)[F29Subsections (2) and (2A)] apply where a reference has been made under section 22 [F30, 33, 68B or 68C] but is not finally determined.
(2)The [F31CMA] may by order, for the purpose of preventing pre-emptive action—
(a)prohibit or restrict the doing of things which the [F31CMA] considers would constitute pre-emptive action;
(b)impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
(c)provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
(d)do anything which may be done by virtue of paragraph 19 of Schedule 8.
[F32(2A)Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may by order, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects—
(a)do anything mentioned in subsection (2)(b) to (d);
(b)impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.]
[F33(2B)A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.]
F34(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F34(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)[F35An order] under this section—
(a)shall come into force at such time as is determined by or under the order; and
(b)may be varied or revoked by another order.
F36(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)An order which is in force under this section in relation to a reference under section 22 [F37, 33, 68B or 68C] shall cease to be in force if an undertaking under section 80 comes into force in relation to that reference.
(8)An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 [F38, 33, 68B or 68C] is finally determined.
(9)The [F39CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
Textual Amendments
F29Words in s. 81(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F30Words in s. 81(1) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 19
F31Word in s. 81(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 121(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F32S. 81(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F33S. 81(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F34S. 81(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F35Words in s. 81(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F36S. 81(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 3(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F37Words in s. 81(7) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 19
F38Words in s. 81(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 19
F39Word in s. 81(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 121(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
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