The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003

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1.—(1) The following sections of Part 3 of the Act shall apply, with the modifications mentioned in sub-paragraphs (2) to (27) below, for the purposes of this Order—U.K.

F1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)section 86 (enforcement orders: general provisions);

(c)section 87 (delegated power of directions);

(d)section 88 (contents of certain enforcement orders);

(e)section 89 (subject-matter of undertakings);

(f)section 91 (register of undertakings and orders);

(g)section 92 (duty of [F2CMA] to monitor undertakings and orders);

(h)section 93 (further role of [F3CMA] in relation to undertakings and orders);

(i)section 94 (rights to enforce undertakings and orders);

[F4(ia)section 94A (interim undertakings and orders: penalties);]

(j)section 95 (rights to enforce statutory restrictions);

(k)section 103 (duty of expedition in relation to references);

(l)section 104 (certain duties of relevant authorities to consult);

[F5(la)section 104A (public consultation in relation to media mergers);]

(m)section 105 (general information duties of [F6CMA]);

[F7(ma)section 106B (general advisory functions of OFCOM);]

(n)section 108 (defamation);

(o)section 109 (attendance of witnesses and production of documents etc.);

(p)section 110 (enforcement of powers under section 109: general);

[F8(pa)section 110A (restriction on powers to impose penalties under section 110);

(pb)section 110B (section 110A: supplemental provision);]

(q)section 111 (penalties);

(r)section 112 (penalties: main procedural requirements);

(s)section 113 (payments and interest by instalments);

(t)section 114 (appeals in relation to penalties);

(u)section 115 (recovery of penalties);

(v)section 116 (statement of policy);

(w)section 117 (false or misleading information);

(x)section 118 (excisions from reports);

(y)section 119 (minority reports of [F9CMA]);

[F10(ya)section 119A (other general functions of OFCOM);]

(z)section 120 (review of decisions under Part 3);

(aa)section 124 (orders and regulations under Part 3);

(bb)section 125 (offences by bodies corporate);

(cc)section 126 (service of documents);

(dd)section 127 (associated persons);

(ee)section 128 (supply of services and market for services etc.); and

(ff)section 129 (other interpretation provisions).

F11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Section 86 shall apply as if—

(a)subsection (5) were omitted; and

(b)in subsection (6)—

(i)the words from “section 72” to “under”, where it appears for the second time, were omitted; and

(ii)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(4) Section 88 shall apply as if in subsection (1)—

(a)the words from “section 75” to “under” were omitted; and

(b)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(5) Section 89 shall apply as if in subsection (2)—

(a)the words from “[F12section 73]” to “under”, where it appears for the second time, were omitted; and

(b)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(6) Section 91 shall apply as if—

(a)in subsections (1), (3)(a) and (b) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

(b)in subsection (3)(d)—

(i)the words from “by the [F13CMA]” to “78(2) or” were omitted; and

(ii)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”; and

F14(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Section 92 shall apply as if—

(a)in subsections (1)(b), (3)(f) and (4)(f)—

(i)the words from “in sections 77(2)” to “78(2) and” were omitted; and

(ii)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

F15(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in subsection (3)(e) for the word “to” there were substituted “ and ”;

(e)in subsection (3)(f) the words “(4) and” were omitted;

(f)subsections (4)(a) to (d) were omitted; and

(g)in subsection (5) for the words “this Part” in both places where they appear there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(8) Section 93 shall apply as if—

F16(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in subsections (1)(b), (2) and (4) for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

F17(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Section 94 shall apply as if—

F19(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in subsection (8) for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

(c)in subsection (9) for the words “to (8)” there were substituted “ and (8) ”.

[F20(9A) Section 94A shall apply as if—

(a)in subsection (1)—

(i)for the words “the appropriate authority” there were substituted “the Secretary of State”; and

(ii)for the word “it” (in both places where it occurs) there were substituted “the Secretary of State”;

(b)in subsection (5), for “the appropriate authority” there were substituted “the Secretary of State”;

(c)in subsection (7), for the words “the person who imposed the penalty under this section” there were substituted “the Secretary of State”; and

(d)for subsection (8) there were substituted—

“(8) In this section, “interim measure” means an order under paragraph 2 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.”]

(10) Section 95 shall apply as if—

(a)in subsections (1), (3) and (6)—

(i)the words from “section 77(2)” to “78(2) or” were omitted; and

(ii)for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

(b)subsection (4) were omitted;

(c)in subsection (5) for the words “Schedule 7” there were substituted “ Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”; and

(d)in subsection (6) for the words “Subsections (4) and” there were substituted “ Subsection ”.

(11) Section 103 shall apply as if—

(a)subsection (1) were omitted; and

(b)in subsection (2) for the words “section 45 or 62” there were substituted “ article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(12) Section 104 shall apply as if—

(a)in subsection (5) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

F21(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F22(c)for paragraph (a) in the definition of “relevant decision” there were substituted—

“(a)in the case of the CMA, any decision by the CMA on the questions mentioned in article 6 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003;”;]

F23(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)in paragraph (c)(i) in the definition of “relevant decision” in subsection (6), for the words “section 45 or 62” there were substituted “ article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests Order) 2003 ”; and

(f)in paragraph (c)(ii) in the definition of “relevant decision” in subsection (6), for the words “section 49 or (as the case may be) 64” there were substituted “ article 7 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

[F24(12A) Section 104A shall apply as if—

(a)for the words in subsection (1) there were substituted—

“(1) Subsection (2) applies where the [F25CMA] is preparing a report under article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 which specifies a media public interest consideration.”; and

(b)in subsection (2) the words “or special merger situation” were omitted.]

(13) Section 105 shall apply as if—

(a)in subsection (1)—

(i)for the words from “so as to enable” to “44 or 61” there were substituted “ so as to make a report under article 4 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”; and

(ii)for the words from “relevant merger situation” to the end of that subsection there were substituted “ European relevant merger situation concerned ”;

[F26(ab)in subsection (1A) for the words “section 44A or 61A” there were substituted “article 4A of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.]

(b)subsection (2) were omitted; and

(c)in subsections (3)(a) and (3)(b), (4), (5)(a) and (5)(b) and (6) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

[F27(13A) Section 106B shall apply as if—

(a)for the words in subsection (1) there were substituted—

“(1) OFCOM may, in connection with any case on which they are required to give a report by virtue of article 4A of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003, give such advice as they consider appropriate to the Secretary of State in relation to—

(a)any report made by the [F28CMA] under article 8 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003; and

(b)the taking by the Secretary of State of enforcement action under Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;

(b)in subsection (2) for the words “section 44A or 61A” there were substituted “article 4A of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”; and

(c)in subsection (3) for the words “section 50 or 65” there were substituted “article 8 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.]

(14) Section 108 shall apply as if for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

[F29(15) Section 109 shall apply as if—

(a)for subsection (A1) there were substituted—

“(A1) For the purposes of this section, the permitted purposes are assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 in connection with a matter that is or has been the subject of a reference or possible reference under article 5 of that Order.”; and

(b)in subsection (8A)—

(i)paragraph (a)(ii) were omitted;

(ii)in paragraph (a)(iii), the words “75, 76, 83 or” were omitted; and

(iii)in paragraph (b)(iii), for the words “Schedule 7” there were substituted “Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.]

(16) Section 110 shall apply as if in subsections (2) and (9) for the words from “section 39(4)” to “65(3))” there were substituted “ article 9(3) of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

[F30(16A) Section 110A shall apply as if—

(a)subsections (5) and (6) were omitted;

(b)in subsections (7) and (8)—

(i)for the words “section 109(A1)(b)” (in both places where those words occur) there were substituted “section 109(A1)”; and

(ii)for the words “section 45 or 62” (in both places where those words occur) there were substituted “article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.

(16B) Section 110B shall apply as if—

(a)subsections (1) and (2) were omitted;

(b)in subsection (3), in the words before paragraph (a), for the words “section 45 or 62” there were substituted “article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;

(c)in subsection (3)(b), for the words “Schedule 7” there were substituted “Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;

(d)in subsection (3)(c), for the words “Schedule 7” there were substituted “Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;

(e)subsection (3)(d) were omitted;

(f)in subsection (4), in the words before paragraph (a), for the words “section 45 or 62” there were substituted “article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;

(g)subsection (4)(d) were omitted; and

(h)for subsections (5) and (6) there were substituted—

“(5) Paragraph 7(8) and (9) of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 applies for deciding if and when a reference under article 5(2) of that Order is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of paragraph 7 of that Schedule.

(6) Paragraph 8(7) and (8) of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 applies for deciding if and when a reference under article 5(3) of that Order is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of the definition of “relevant period” in paragraph 8(6) of that Schedule.”.]

F31(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(18) Section 117 shall apply as if in subsections (1)(a) and (2) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(19) Section 118 shall apply as if—

(a)in subsection (1)(a) for the words “section 44 or 61” there were substituted “ article 4 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

[F32(aa)in subsection (1)(aa) for the words “section 44A or 61A” there were substituted “article 4A of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;]

(b)in subsection (1)(b) for the words “section 50 or 65” there were substituted “ article 8 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”; and

(c)in subsection (5) for the words “sections 38(4) and 107(11)” there were substituted “ article 14(8) of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(20) Section 119 shall apply as if in subsection (1) for the words “this Part”, in both places where they appear, there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

[F33(20A) Section 119A shall apply as if in subsections (1) and (4) for the words “this Part” there were substituted “the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.]

(21) Section 120 shall apply as if—

(a)in subsections (1) and (2)(b) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”; and

(b)in subsection (1) for the words “relevant merger situation or a special merger situation” there were substituted “ European relevant merger situation ”.

(22) Section 124 shall apply as if—

(a)in subsections (1) and (2) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”;

(b)subsections (3) and (4) and (6) to (10) were omitted; and

(c)for subsection (5) there were substituted—

“(5) An order made by the Secretary of State under section 28, [F3494A(3) or (6),] 111(4) or (6) or 114(3)(b) or (4)(b) as applied by the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003, or under Schedule 2 to that Order shall be subject to annulment in pursuance of a resolution of either House of Parliament.”.

(23) Section 125 shall apply as if in subsections (1) and (3) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(24) Section 126 shall apply as if in subsections (1), (4) and (6) for the words “this Part” there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(25) Section 127 shall apply as if in subsection (3) for the words “section 22, 33, 45 or 62” there were substituted “ article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(26) Section 128 shall apply as if in subsection (1) for the words “this Part” where they appear on both occasions there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

(27) Section 129 shall apply as if in subsections (1) to (4) for the words “this Part” where they appear on all occasions there were substituted “ the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 ”.

Textual Amendments

F1Sch. 3 para. 1(1)(a) omitted (1.4.2014) by virtue of The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(a) (with arts. 20-23)

F2Word in Sch. 3 para. 1(1)(g) substituted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(b) (with arts. 20-23)

F3Word in Sch. 3 para. 1(1)(h) substituted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(b) (with arts. 20-23)

F4Sch. 3 para. 1(1)(ia) inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(c) (with arts. 20-23)

F5Sch. 3 para. 1(1)(la) inserted (29.12.2003) by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), reg. 1(1), Sch. para. 10(9)

F6Word in Sch. 3 para. 1(1)(m) substituted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(d) (with arts. 20-23)

F7Sch. 3 para. 1(1)(ma) inserted (29.12.2003) by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), reg. 1(1), Sch. para. 10(10)

F8Sch. 3 para. 1(1)(pa)(pb) inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(e) (with arts. 20-23)

F9Word in Sch. 3 para. 1(1)(y) substituted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(2)(f) (with arts. 20-23)

F10Sch. 3 para. 1(1)(ya) inserted (29.12.2003) by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), reg. 1(1), Sch. para. 10(11)

F11Sch. 3 para. 1(2) omitted (1.4.2014) by virtue of The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(3) (with arts. 20-23)