Enterprise Act 2002

72 Initial enforcement orders: [F1 completed or anticipated mergers] U.K.

[F2 (1) Subsection (2) applies where—

(a) the CMA is considering whether to make a reference under [F3 section 22, 33, 68B or 68C]; and

(b) 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.]

(2) The [F4 CMA] may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the [F4 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.

F5 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6 (3A) Subsection (3B) applies where—

(a) subsection (1)(a) and (b) applies; and

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

(3B) 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 subsection (2)(b) to (d);

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

[F7 (3C) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.]

(4) An order under this section—

(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.

F8 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) An order under this section shall, if it has not previously ceased to be in force and if it is not adopted under F9 ... paragraph 2 of Schedule 7, cease to be in force—

(a) where the [F4 CMA] has decided to make the reference concerned under [F10 section 22, 33, 68B or 68C] [F11 —

(i) if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and

(ii) otherwise on the final determination of the reference concerned;]

(b) where the [F4 CMA] has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;

(c) where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and

(d) where the [F4 CMA] has otherwise decided not to make the reference concerned under [F12 section 22, 33, 68B or 68C], on the making of that decision.

(7) The [F13 CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

[F14 (8) In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.]

Textual Amendments

F1 Words in s. 72 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(9), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F2 S. 72(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F3 Words in s. 72(1)(a) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 11(2)

F4 Word in s. 72(2)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 112 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 S. 72(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(4), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F6 S. 72(3A)(3B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(5), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F7 S. 72(3C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(6), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F8 S. 72(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 5(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Words in s. 72(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 5(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Words in s. 72(6)(a) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 11(3)

F11 Words in s. 72(6)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 5(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F12 Words in s. 72(6)(d) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 11(3)

F13 Word in s. 72(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 112 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F14 Words in s. 72(8) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(8), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Modifications etc. (not altering text)

C1 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.)