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Enterprise Act 2002

Section 61: Initial investigation and report by OFT

197.This section establishes the OFT’s role in investigating and reporting on these cases. Subsections (1) and (2) establish that if the Secretary of State issues a special intervention notice to OFT, they shall produce a report within such time-limit as the Secretary of State may require. There is nothing to prevent the Secretary of State from altering the time-limit if circumstances so require. Subsection (3) provides that, in its report, the OFT will consider matters relevant to references under sections 22 and 33 which are also relevant to the criteria specified in section 62. This means that OFT do not need to consider whether the merger may result in a substantial lessening of competition as this is not relevant to the Secretary of State’s decision in a special public interest case. This subsection also provides that the OFT’s report will include a summary of representations received that are relevant to the Secretary of State’s decision.

198.Subsection (4) provides that the OFT shall decide whether a special merger situation has been created or is contemplated. This will be a relevant merger situation without the need to meet the qualifying thresholds (share of supply or turnover test). Subsection (5) provides that OFT may, at its discretion, provide other advice that may be relevant to the Secretary of State’s decision about whether to refer, and subsection (6) allows the OFT to carry out their investigations for the report as it considers appropriate.

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