Enterprise Act 2002

2 (1) Sub-paragraph (2) applies where an intervention notice or special intervention notice is in force. U.K.

(2) The Secretary of State or the [F1 CMA] may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the Secretary of State or (as the case may be) the [F1 CMA] 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.

[F2 (2A) Sub-paragraph (2B) applies where—

(a) an intervention notice or special intervention notice is in force, and

(b) the Secretary of State or the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The Secretary of State or (as the case may be) the CMA may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

(a) do anything mentioned in sub-paragraph (2)(b) to (d);

(b) impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.]

[F3 (2C) A person may, with the consent of the Secretary of State or (as the case may be) the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this paragraph by the Secretary of State or (as the case may be) the CMA.]

(3) Sub-paragraph (4) applies where an intervention notice is in force.

(4) The Secretary of State F4 ... may, for the purpose of preventing pre-emptive action, adopt an order made [F5 by the CMA] under section 72 if the order is still in force when the Secretary of State F6 ... adopts it.

(5) An order adopted under sub-paragraph (4)—

(a) shall continue in force, in accordance with its terms, when adopted; and

(b) may be varied or revoked by an order under this paragraph.

(6) Any other order under this paragraph—

(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.

(7) References in this Part to orders under this paragraph shall, unless the context otherwise requires, include references to orders adopted under this paragraph; and references to the making of orders under this paragraph shall be construed accordingly.

(8) An order which is in force under this paragraph in relation to a reference or possible reference under section 45 or (as the case may be) 62 shall cease to be in force if an undertaking under paragraph F7 ... 3 comes into force in relation to that reference.

(9) An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force when the intervention notice concerned or (as the case may be) special intervention notice concerned ceases to be in force.

(10) No order shall be made by the Secretary of State or the [F8 CMA] under this paragraph before the making of a reference under section 45 or (as the case may be) 62 unless[F9 —

(a) the Secretary of State or (as the case may be) the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct; or

(b) the order relates to a special merger situation which has been, or may have been, created.]

(11) The Secretary of State or (as the case may be) the [F8 CMA] shall, as soon as reasonably practicable, consider any representations received by that person in relation to varying or revoking an order under this paragraph.

[F10 (12) In this paragraph “pre-emptive action” means action which might prejudice the reference or possible reference concerned under section 45 or (as the case may be) 62 or impede the taking of any action under this Part which may be justified by the Secretary of State's decisions on the reference.]

Textual Amendments

F1 Word in Sch. 7 para. 2(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 160(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 Sch. 7 para. 2(2A)(2B) inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(3), Sch. 7 para. 4(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Sch. 7 para. 2(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Words in Sch. 7 para. 2(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(5)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 Words in Sch. 7 para. 2(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6 Words in Sch. 7 para. 2(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(5)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F7 Words in Sch. 7 para. 2(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F8 Word in Sch. 7 para. 2(10)(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 160(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Words in Sch. 7 para. 2(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Sch. 7 para. 2(12) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 4(8); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C1 Sch. 7 para. 2(2C) modified (5.12.2019 at 12.10 p.m.) by The Public Interest Merger Reference (Gardner Aerospace Holdings Ltd. and Impcross Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1490), arts. 1, 13

C2 Sch. 7 para. 2(2C) modified (18.8.2021 at 4.30 p.m.) by The Public Interest Merger Reference (Cobham Ultra Acquisitions Ltd. and Ultra Electronics Holdings plc) (Pre-emptive Action) Order 2021 (S.I. 2021/944), arts. 1(1), 7

C3 Sch. 7 para. 2(2C) modified (5.9.2021 at 7.30 p.m.) by The Public Interest Merger Reference (Perpetuus Advanced Materials plc) (Pre-emptive Action) Order 2021 (S.I. 2021/993), arts. 1(1), 10