SCHEDULE 2ENFORCEMENT ACTION IN EUROPEAN INTERVENTION NOTICE CASES

Statutory restrictions following reference under article 58

1

Sub-paragraph (2) applies where—

a

a reference has been made under article 5, and

b

no undertakings under paragraph 1 are in force in relation to the European relevant merger situation concerned and no orders under paragraph 2 are in force in relation to that situation.

2

No relevant person shall, without the consent of the Secretary of State, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.

3

The consent of the Secretary of State under sub-paragraph (2)—

a

may be general or specific;

b

may be revoked by the Secretary of State; and

c

shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

4

Paragraph (c) of sub-paragraph (3) shall not apply if the Secretary of State considers that publication is not necessary for the purpose mentioned in that paragraph.

5

Sub-paragraph (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

a

a United Kingdom national;

b

a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c

a person carrying on business in the United Kingdom.

6

In this paragraph—

  • “company” includes any body corporate;

  • “relevant period” means the period beginning with the publication of the decision of the Secretary of State to make the reference concerned and ending when the reference is finally determined;

  • “relevant person” means—

    1. a

      any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;

    2. b

      any subsidiary of any person falling within paragraph (a); or

    3. c

      any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and

  • “share” means share in the capital of a company, and includes stock.

7

For the purposes of the definition of “relevant period” in sub-paragraph (6), a reference under article 5 is finally determined if—

a

the Commission cancels the reference under article 7(1) or article 11(1);

b

the time within which the Commission is to prepare a report under article 8 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

c

the time within which the Secretary of State is to make and publish a decision under article 12(2) has expired and no such decision has been made and published;

d

the Secretary of State decides under paragraph (2) of article 12 otherwise than as mentioned in paragraph (6) of that article;

e

the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

f

the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

8

For the purposes of the definition of “relevant period” in sub-paragraph (6) above, the time when a reference under article 5 is finally determined is—

a

in a case falling within sub-paragraph (7)(a) or (d), the making of the decision concerned;

b

in a case falling within sub-paragraph (7)(b) or (c), the expiry of the time concerned;

c

in a case falling within sub-paragraph (7)(e), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

d

in a case falling within sub-paragraph (7)(f) the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

9

Section 79 of the Act shall apply for the purposes of paragraph 7 and this paragraph in relation to a reference under article 5 as it applies for the purposes of sections 77 and 78 in relation to a reference under section 22 or 33 of the Act.

10

In its application by virtue of sub-paragraph (9) section 79 shall have effect as if—

a

subsections (1) and (2) were omitted; and

b

for the reference in subsection (4) to the OFT there were substituted a reference to the Secretary of State.