Merger notices
254.This Chapter updates the merger notice procedure provided for in sections 75A-75H of FTA 1973.
Section 96: Merger notices
255.This section describes the circumstances in which a notice may be given. The section sets out that the notice should be in the form prescribed by the OFT, and that no reference will be made if the period for considering a merger notice has expired.
Sections 97 and 98: Period for considering merger notices & Section 97: supplementary
256.These sections provide for the time-periods in which a reference can be made under a notice. On receipt of a merger notice, the OFT has 20 working days, with a possibility of extending that to 30 workings days, to decide whether to refer. This reduces the FTA 1973 merger notice timetable by 5 days.
257.If an intervention notice has been served, the time-period can be extended to a maximum of 40 working days.
258.There are also circumstances in which a merger notice timetable can be extended further:
if the parties have failed to provide information that the OFT asked for. In this case, the extension will be the period it took for the parties to provide the information;
if the OFT is seeking undertakings. In this case the extension will be for the period it takes until undertakings are given; or up to 10 days after the OFT has received a notice saying that undertakings will not be given;
if the European Commission is considering whether to deal with the case following a request made under article 22(3) of the ECMR;
if the Secretary of State decides to extend her consideration of a public interest case in relation to the creation of a new public interest gateway.
Section 99: Certain functions of OFT and Secretary of State in relation to merger notices
259.This section sets out the responsibilities of the OFT in relation to merger notices. This includes: taking appropriate steps to ensure that all affected parties are made aware of the case and what the OFT should include in their notice to parties requesting information. It also provides for the circumstances in which the OFT may reject a notice. These include: if the OFT suspects that false or misleading information has been given; if they suspect that the merger will not take place; if information is not given as requested; and if the arrangements would result in a concentration with a Community dimension under the ECMR.
Section 100: Exceptions to protection given by merger notices
260.This section provides for the circumstances in which a case continues to be referable, notwithstanding the fact that the period for considering a merger notice served in that case has expired. Such circumstances include rejection of the notice by the OFT or withdrawal of it by the parties, non-disclosure of material information, and any other merger involving any relevant party.
Sections 101 and 102: Merger notices: regulations & Power to modify sections 97 to 101
261.Sections 101 and 102 provide the Secretary of State with the power to make regulations relating to the merger notice procedures and to modify sections 97 to 101.
