Enterprise Act 2002 (c. 40)

Part 3 U.K. Mergers

Modifications etc. (not altering text)

C1 Pt. 3 (ss. 22-130) modified (20.6.2003) by 1998 c. 41, Sch. 7 para. 20(3) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, {Sch. 11 para. 11(2)-(4)(8)}; S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C2 Pt. 3 applied (with modifications) (29.12.2004) by Water Industry Act 1991 (c. 56), Sch. 4ZA paras. 1, 2 (as inserted by Enterprise Act 2002 (c. 40), ss. 70(2), 279, Sch. 6); S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)

C3 Pt. 3 (ss. 22-130) applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17M(4) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)

C4 Pt. 3 applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17Q(9) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)

C5 Pt. 3 applied in part (N.I.) (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 23(4), 27(9); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C6 Pt. 3 excluded in part (29.9.2008) by The Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008 (S.I. 2008/2546), arts. 1(2), 40

C7 Pt. 3 modified (1.7.2012) by Health and Social Care Act 2012 (c. 7), ss. 79, 306(4); S.I. 2012/1319, art. 2(3)

C8 Pt. 3 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 56; S.I. 2014/416, art. 2(1)(c) (with Sch.)

C9 Pt. 3 modified (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 4 paras. 28-33; 2020 c. 1, Sch. 5 para. 1(1)

C10 Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56E(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(3)(f), 36(2))

C11 Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56A(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(2)(f), 36(2))

C12 Pt. 3 modified (1.7.2022) by 2006 c. 41, s. 72A (as inserted by Health and Care Act 2022 (c. 31), ss. 83(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30))

C13 Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35 (as amended (1.4.2014) by S.I. 2014/549, art. 1(1), Sch. 1 para. 22 (with art. 3); (18.12.2015) by S.I. 2015/1936, regs. 1, 3-20; (6.12.2023) by S.I. 2023/1185, arts. 1(2), 9-27)

Chapter 1 U.K. Duty to make references

Determination of references U.K.

36 Questions to be decided in relation to anticipated mergers U.K.

(1) Subject to subsections (5) and (6) and section 127(3), the [F1 CMA] shall, on a reference under section 33, decide the following questions—

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

(b) if so, whether 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 [F1 CMA] shall, if it has decided on a reference under section 33 that there is an anti-competitive outcome (within the meaning given by section 35(2)(b)), decide the following additional questions—

(a) whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition;

(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition; and

(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.

(3) In deciding the questions mentioned in subsection (2) the [F1 CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.

(4) In deciding the questions mentioned in subsection (2) the [F1 CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

(5) In relation to the question whether a relevant merger situation will be created, a reference under section 33 may be framed so as to require the [F1 CMA] to exclude from consideration—

(a) subsection (1) of section 23;

(b) subsection (2) of that section; or

(c) one of those subsections if the [F1 CMA] finds that the other is satisfied.

(6) In relation to the question whether [F2 any such result as is mentioned in section 23(2)(b) will arise,] a reference under section 33 may be framed so as to require the [F1 CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments

F1 Word in s. 36(1)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 26 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 Words in s. 36(6) substituted (4.1.2022) by National Security and Investment Act 2021 (c. 25), s. 66(3), Sch. 2 para. 5 (with s. 62); S.I. 2021/1465, regs. 2, 3 (with regs. 4, 5)

Modifications etc. (not altering text)

C14 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

C15 S. 36(2)(a)(b) modified (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595), art. 4