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Enterprise Act 2002

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33 Duty to make references in relation to anticipated mergersE+W+S+N.I.
This section has no associated Explanatory Notes

(1)The OFT shall, subject to subsections (2) and (3), make a reference to the Commission if the OFT believes that it is or may be the case that—

(a)arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and

(b)the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.

(2)The OFT may decide not to make a reference under this section if it believes that—

(a)the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference to the Commission;

(b)the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference to the Commission; or

(c)any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.

(3)No reference shall be made under this section if—

(a)the making of the reference is prevented by section F1. . . 74(1) or 96(3) or paragraph 4 of Schedule 7;

(b)the OFT is considering whether to accept undertakings under section 73 instead of making such a reference;

(c)the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22;

(d)a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the OFT under section 56(1); [F2or]

(e)the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article [F322(1) of the EC Merger Regulation] , is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a request.[F4; or

(f)subject to subsection (3A), a reasoned submission requesting referral to the European Commission has been submitted to the European Commission under article 4(5) of the EC Merger Regulation.]

[F5(3A)Section 33(3)(f) shall cease to apply if the OFT is informed that a Member State competent to examine the concentration under its national competition law has, within the time permitted by Article 4(5) of the EC Merger Regulation, expressed its disagreement as regards the request to refer the case to the European Commission; and this subsection shall be construed in accordance with that Regulation.]

(4)A reference under this section shall, in particular, specify—

(a)the enactment under which it is made; and

(b)the date on which it is made.

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Amendments (Textual)

F1Words in s. 33(3)(a) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

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