SCHEDULES
SCHEDULE 1 Exclusions: Mergers and Concentrations
Part I Mergers
Enterprises ceasing to be distinct: the Chapter I prohibition
1
1
To the extent to which an agreement (either on its own or when taken together with another agreement) results, or if carried out would result, in any two enterprises ceasing to be distinct enterprises for the purposes of F7Part 3 of the Enterprise Act 2002 (“the 2002 Act”), the Chapter I prohibition does not apply to the agreement.
2
The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the merger provisions.
3
In sub-paragraph (2) “merger provisions” means the provisions of the agreement which cause, or if carried out would cause, the agreement to have the result mentioned in sub-paragraph (1).
4
F8Section 26 of the 2002 Act applies for the purposes of this paragraph as if—
a
in subsection (3) (circumstances in which a person or group of persons may be treated as having control of an enterprise), and
b
in subsection (4) (circumstances in which a person or group of persons may be treated as bringing an enterprise under their control),
for “may” there were substituted “
must
”
.
Enterprises ceasing to be distinct: the Chapter II prohibition
2
1
To the extent to which conduct (either on its own or when taken together with other conduct)—
a
results in any two enterprises ceasing to be distinct enterprises for the purposes of F9Part 3 of the 2002 Act), or
b
is directly related and necessary to the attainment of the result mentioned in paragraph (a),
the Chapter II prohibition does not apply to that conduct.
2
F10Section 26 of the 2002 Act applies for the purposes of this paragraph as it applies for the purposes of paragraph 1.
Transfer of a newspaper or of newspaper assets
F43
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Withdrawal of the paragraph 1 exclusion
C14
1
The exclusion provided by paragraph 1 does not apply to a particular agreement if the F1OFT gives a direction under this paragraph to that effect.
2
3
The F1OFT may give a direction under this paragraph only as provided in sub-paragraph (4) or (5).
4
If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (2), the F1OFT may give a direction under this paragraph.
5
The F1OFT may also give a direction under this paragraph if—
F5a
it considers that the agreement will, if not excluded, infringe the Chapter I prohibition; and
b
the agreement is not a protected agreement.
6
F6For the purposes of sub-paragraph (5), an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).
7
A direction under this paragraph—
a
must be in writing;
b
may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
Protected agreements
C3C2C45
An agreement is a protected agreement for the purposes of paragraph 4 if—
F3a
the OFT or (as the case may be) the Secretary of State has published its or his decision not to make a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement;
b
the OFT or (as the case may be) the Secretary of State has made a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;
c
the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or
d
the OFT has made a reference to the Competition Commission under section 32 of the Water Industry Act 1991 in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies.