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Enterprise Act 2002

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U.K.

Enterprise Act 2002

2002 CHAPTER 40

An Act to establish and provide for the functions of the Office of Fair Trading, the Competition Appeal Tribunal and the Competition Service; to make provision about mergers and market structures and conduct; to amend the constitution and functions of the Competition Commission; to create an offence for those entering into certain anti-competitive agreements; to provide for the disqualification of directors of companies engaging in certain anti-competitive practices; to make other provision about competition law; to amend the law relating to the protection of the collective interests of consumers; to make further provision about the disclosure of information obtained under competition and consumer legislation; to amend the Insolvency Act 1986 and make other provision about insolvency; and for connected purposes.

[7th November 2002]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text)

Part 1U.K.[F1General functions of the CMA]

F2...U.K.

Textual Amendments

F2S. 1 cross-heading omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 229 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F31

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Textual Amendments

F3Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F32 The Director General of Fair TradingU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F33 Annual planU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F34 Annual and other reportsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

General functions of [F4the CMA] U.K.

Textual Amendments

F4Words in s. 5 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 60(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

5 Acquisition of information etc.U.K.

(1)The [F5CMA] has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.

(2)That function is to be carried out with a view to (among other things) ensuring that the [F6CMA] has sufficient information to take informed decisions and to carry out its other functions effectively.

(3)In carrying out that function the [F6CMA] may carry out, commission or support (financially or otherwise) research.

Textual Amendments

6 Provision of information etc. to the publicU.K.

(1)The [F7CMA] has the function of—

(a)making the public aware of the ways in which competition may benefit consumers in, and the economy of, the United Kingdom; and

(b)giving information or advice in respect of matters relating to any of its functions to the public.

(2)In carrying out those functions the [F7CMA] may—

(a)publish educational materials or carry out other educational activities; or

(b)support (financially or otherwise) the carrying out by others of such activities or the provision by others of information or advice.

Textual Amendments

7 Provision of information and advice to Ministers etc.U.K.

(1)The [F8CMA] has the function of—

(a)making proposals, or

(b)giving other information or advice,

on matters relating to any of its functions to any Minister of the Crown or other public authority (including proposals, information or advice as to any aspect of the law or a proposed change in the law).

(2)A Minister of the Crown may request the [F9CMA] to make proposals or give other information or advice on any matter relating to any of its functions; and the [F9CMA] shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.

Textual Amendments

F108 Promoting good consumer practiceU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F118AExclusion of public consumer advice schemeU.K.

The [F12CMA] may not under this Part support a public consumer advice scheme, where that support of a scheme consists of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them.]

MiscellaneousU.K.

9 Repeal of certain powers of directionU.K.

Section 12 of the Fair Trading Act 1973 (c. 41) (in this Act referred to as “the 1973 Act”) and section 13 of the Competition Act 1980 (c. 21) (powers of Secretary of State to give directions) shall cease to have effect.

10 Part 2 of the 1973 ActU.K.

(1)The following provisions of the 1973 Act shall cease to have effect—

(a)section 3 and Schedule 2 (which establish, and make provision with respect to, the Consumer Protection Advisory Committee);

(b)sections 13 to 21 (which relate to references made to, and reports of, that Committee); and

(c)section 22 (power of Secretary of State to make orders in pursuance of a report of that Committee).

F13(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—

(a)repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and

(b)make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.

(4)An order under subsection (3)—

(a)may make transitional or saving provision in connection with any modification made by the order; and

(b)shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

11 Super-complaints to OFTU.K.

(1)This section applies where a designated consumer body makes a complaint to the [F14CMA] that any feature, or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.

(2)The [F14CMA] must, within 90 days after the day on which it receives the complaint, publish a response stating how it proposes to deal with the complaint, and in particular—

(a)whether it has decided to take any action, or to take no action, in response to the complaint, and

(b)if it has decided to take action, what action it proposes to take.

(3)The response must state the [F15CMA's] reasons for its proposals.

(4)The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.

(5)Designated consumer body” means a body designated by the Secretary of State by order.

(6)The Secretary of State—

(a)may designate a body only if it appears to him to represent the interests of consumers of any description, and

(b)must publish (and may from time to time vary) other criteria to be applied by him in determining whether to make or revoke a designation.

(7)The [F16CMA]

(a)must issue guidance as to the presentation by the complainant of a reasoned case for the complaint, and

(b)may issue such other guidance as appears to it to be appropriate for the purposes of this section.

(8)An order under this section—

(a)shall be made by statutory instrument, and

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)In this section—

(a)references to a feature of a market in the United Kingdom for goods or services have the same meaning as if contained in Part 4, and

(b)consumer” means an individual who is a consumer within the meaning of that Part.

Textual Amendments

Modifications etc. (not altering text)

C3S. 11 (except s. 11(7)(a)) applied in part (20.6.2003) by The Enterprise Act 2002 (Super-complaints to Regulators) Order 2003 (S.I. 2003/1368), art. 2

Part 2 U.K.The Competition Appeal Tribunal

The Competition Appeal TribunalU.K.

12 The Competition Appeal TribunalU.K.

(1)There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).

(2)The Tribunal shall consist of—

(a)a person appointed by the Lord Chancellor to preside over the Tribunal (in this Part referred to as “the President”);

(b)members appointed by the Lord Chancellor to form a panel of chairmen; and

(c)members appointed by the Secretary of State to form a panel of ordinary members.

(3)The Tribunal shall have a Registrar appointed by the Secretary of State.

(4)The expenses of the Tribunal shall be paid by the Competition Service.

(5)Schedule 2 (which makes further provision about the Tribunal) has effect.

13 The Competition ServiceU.K.

(1)There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).

(2)The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.

(3)In subsection (2) “support services” includes the provision of staff, accommodation and equipment and any other services which facilitate the carrying out by the Tribunal of its functions.

(4)The activities of the Service are not carried out on behalf of the Crown (and its property is not to be regarded as held on behalf of the Crown).

(5)The Secretary of State shall pay to the Service such sums as he considers appropriate to enable it to fund the activities of the Tribunal and to carry out its other activities.

(6)Schedule 3 (which makes further provision about the Service) has effect.

Commencement Information

I1S. 13 wholly in force at 1.4.2003; s. 13 not in force at Royal Assent see s. 279; s. 13(6) in force for certain purposes at 18.3.2003 by S.I. 2003/765, art. 2, Sch., s. 13 in force at 1.4.2003 by S.I. 2003/766, art. 2, Sch.

14 Constitution of Tribunal for particular proceedings and its decisionsU.K.

(1)For the purposes of any proceedings before it the Tribunal shall consist of a chairman and two other members.

(2)The chairman must be the President or a member of the panel of chairmen.

(3)The other members may be chosen from either the panel of chairmen or the panel of ordinary members.

(4)If the members of the Tribunal as constituted in accordance with this section are unable to agree on any decision, the decision is to be taken by majority vote.

(5)This section has effect subject to [F17paragraphs 10A(1)(a) and 18] of Schedule 4 (consequences of a member of the Tribunal being unable to continue after the proceedings have begun to be heard).

(6)Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.

Textual Amendments

Modifications etc. (not altering text)

C4S. 14 applied (1.5.2009 for specified purposes, 1.11.2009 in so far as not already in force) by The Payment Services Regulations 2009 (S.I. 2009/209), reg. 1(2)(b)(c), 106 (with reg. 3)

Commencement Information

I2S. 14 wholly in force at 20.6.2003; s. 14 not in force at Royal Assent see s. 279; s. 14(1)-(5) in force and s. 14(6) in force for certain purposes at 1.4.2003 by S.I. 2003/766, art. 2, Sch., s. 14(6) in force for remaining purposes at 20.6.2003 by S.I. 2003/1397, art. 2, Sch.

15 Tribunal rulesU.K.

(1)The Secretary of State may, after consulting the President and such other persons as he considers appropriate, make rules (in this Part referred to as “Tribunal rules”) with respect to proceedings before the Tribunal.

(2)Tribunal rules may make provision with respect to matters incidental to or consequential upon appeals provided for by or under any Act to the Court of Appeal or the Court of Session in relation to a decision of the Tribunal.

(3)Tribunal rules may—

(a)specify qualifications for appointment as Registrar;

(b)confer functions on the President or the Registrar in relation to proceedings before the Tribunal; and

(c)contain incidental, supplemental, consequential or transitional provision.

(4)The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(5)Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).

Modifications etc. (not altering text)

C5S. 15 applied (1.5.2009 for specified purposes, 1.11.2009 in so far as not already in force) by The Payment Services Regulations 2009 (S.I. 2009/209), reg. 1(2)(b)(c), 106 (with reg. 3)

16 Transfers of certain proceedings to and from TribunalU.K.

(1)The Lord Chancellor may by regulations—

(a)make provision enabling the court—

(i)to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and

(ii)to give effect to the determination of that issue by the Tribunal; and

(b)make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.

(2)The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(3)Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).

(4)The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.

(5)Rules of court may make provision in connection with the transfer from the Tribunal to the High Court or the Court of Session of a claim made in proceedings under section 47A of the 1998 Act.

(6)In this section—

  • the court” means—

    (a)

    the High Court or a county court; or

    (b)

    the Court of Session or a sheriff court; and

  • infringement issue” means any question relating to whether or not an infringement of —

    (a)

    the Chapter I prohibition or the Chapter II prohibition; or

    (b)

    [F18Article 101 or 102] of the Treaty,

    has been or is being committed;

but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part.

Proceedings under Part 1 of 1998 ActU.K.

17 Third party appealsU.K.

For section 47 of the 1998 Act (third party appeals) there is substituted—

47 Third party appeals

(1)A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed.

(2)A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest.

(3)The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.

18 Monetary claimsU.K.

(1)After section 47 of the 1998 Act there is inserted—

47A Monetary claims before Tribunal

(1)This section applies to—

(a)any claim for damages, or3

(b)any other claim for a sum of money,

which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

(2)In this section “relevant prohibition” means any of the following—

(a)the Chapter I prohibition;

(b)the Chapter II prohibition;

(c)the prohibition in Article 81(1) of the Treaty;

(d)the prohibition in Article 82 of the Treaty;

(e)the prohibition in Article 65(1) of the Treaty establishing the [F19European Union] ;

(f)the prohibition in Article 66(7) of that Treaty.

(3)For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.

(4)A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.

(5)But no claim may be made in such proceedings—

(a)until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and

(b)otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.

(6)The decisions which may be relied on for the purposes of proceedings under this section are —

(a)a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b)a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c)a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(d)a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or

(e)a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the [F19European Union] has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.

(7)The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—

(a)in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b)in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;

(c)in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

(d)in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.

(8)The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—

(a)the period during which proceedings against the decision or finding may be instituted in the European Court; and

(b)if any such proceedings are instituted, the period before those proceedings are determined.

(9)In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.

(10)The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.

(2)Section 47A applies to claims arising before the commencement of this section as it applies to claims arising after that time.

Textual Amendments

19 Claims on behalf of consumersU.K.

After section 47A of the 1998 Act (which is inserted by section 18), there is inserted—

47B Claims brought on behalf of consumers

(1)A specified body may (subject to the provisions of this Act and Tribunal rules) bring proceedings before the Tribunal which comprise consumer claims made or continued on behalf of at least two individuals.

(2)In this section “consumer claim” means a claim to which section 47A applies which an individual has in respect of an infringement affecting (directly or indirectly) goods or services to which subsection (7) applies.

(3)A consumer claim may be included in proceedings under this section if it is—

(a)a claim made in the proceedings on behalf of the individual concerned by the specified body; or

(b)a claim made by the individual concerned under section 47A which is continued in the proceedings on his behalf by the specified body;

and such a claim may only be made or continued in the proceedings with the consent of the individual concerned.

(4)The consumer claims included in proceedings under this section must all relate to the same infringement.

(5)The provisions of section 47A(5) to (10) apply to a consumer claim included in proceedings under this section as they apply to a claim made in proceedings under that section.

(6)Any damages or other sum (not being costs or expenses) awarded in respect of a consumer claim included in proceedings under this section must be awarded to the individual concerned; but the Tribunal may, with the consent of the specified body and the individual, order that the sum awarded must be paid to the specified body (acting on behalf of the individual).

(7)This subsection applies to goods or services which—

(a)the individual received, or sought to receive, otherwise than in the course of a business carried on by him (notwithstanding that he received or sought to receive them with a view to carrying on a business); and

(b)were, or would have been, supplied to the individual (in the case of goods whether by way of sale or otherwise) in the course of a business carried on by the person who supplied or would have supplied them.

(8)A business includes—

(a)a professional practice;

(b)any other undertaking carried on for gain or reward;

(c)any undertaking in the course of which goods or services are supplied otherwise than free of charge.

(9)Specified” means specified in an order made by the Secretary of State, in accordance with criteria to be published by the Secretary of State for the purposes of this section.

(10)An application by a body to be specified in an order under this section is to be made in a form approved by the Secretary of State for the purpose.

Other amendments of 1998 ActU.K.

20 Findings of infringementsU.K.

(1)After section 58 of the 1998 Act there is inserted—

U.K.

Findings of infringements

58A Findings of infringements

(1)This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—

(a)the Chapter I prohibition;

(b)the Chapter II prohibition;

(c)the prohibition in Article 81(1) of the Treaty;

(d)the prohibition in Article 82 of the Treaty.

(2)In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.

(3)The decisions are—

(a)a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b)a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c)a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.

(4)The periods mentioned in subsection (2) are—

(a)in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b)in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

(c)in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.

(2)Section 58A does not apply in relation to decisions made before the commencement of this section.

(3)In section 59(1) of that Act (interpretation), in the definition of “the court”, after “58” there is inserted “ , 58A ”.

21 Amendment of 1998 Act relating to the TribunalU.K.

Schedule 5 (which contains amendments of the 1998 Act relating to, and to the proceedings of, the Tribunal) has effect.

Part 3U.K.Mergers

Modifications etc. (not altering text)

C9Pt. 3 applied (with modifications) (29.12.2004) by 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)

Pt. 3 (ss. 22-130) applied (1.10.2005) by 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)

Pt. 3 applied (1.10.2005) by 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)

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)

C10Pt. 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)

Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35

Chapter 1U.K.Duty to make references

Duty to make references: completed mergersU.K.

22 Duty to make references in relation to completed mergersU.K.

(1)[F20The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—]

(a)a relevant merger situation has been created; and

(b)the creation of that situation has resulted, or 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 [F21CMA] 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 F22...; or

(b)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—

[F23(za)the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;]

(a)the making of the reference is prevented by section F24. . . 74(1) F25... or paragraph 4 of Schedule 7;

(b)the [F26CMA] is considering whether to accept undertakings under section 73 instead of making such a reference;

(c)the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 33;

(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 [F26CMA] under section 56(1); [F27or]

(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 [F2822(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[F29; 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.]

[F30(3A)Subsection (3)(f) shall cease to apply if the [F26CMA] 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.

(5)The references in this section to the creation of a relevant merger situation shall be construed in accordance with section 23, the reference in subsection (2) of this section to relevant customer benefits shall be construed in accordance with section 30 and the reference in subsection (3) of this section to a matter to which a notice under section 42(2) relates being finally determined under Chapter 2 shall be construed in accordance with section 43(4) and (5).

(6)In this Part “market in the United Kingdom” includes—

(a)so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and

(b)any market which operates only in a part of the United Kingdom;

and references to a market for goods or services include references to a market for goods and services.

(7)In this Part “the decision-making authority” means—

(a)in the case of a reference or possible reference under this section or section 33, [F31the CMA]; and

(b)in the case of a notice or possible notice under section 42(2) or 59(2) or a reference or possible reference under section 45 or 62, [F32the CMA] or (as the case may be) the Secretary of State.

Textual Amendments

F24Words in s. 22(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)

F3323 Relevant merger situationsU.K.

(1)For the purposes of this Part, a relevant merger situation has been created if—

(a)two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

(b)the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million.

(2)For the purposes of this Part, a relevant merger situation has also been created if—

(a)two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

(b)as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent.

(3)The condition mentioned in this subsection is that, in relation to the supply of goods of any description, at least one-quarter of all the goods of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom—

(a)are supplied by one and the same person or are supplied to one and the same person; or

(b)are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.

(4)The condition mentioned in this subsection is that, in relation to the supply of services of any description, the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, is to the extent of at least one-quarter—

(a)supply by one and the same person, or supply for one and the same person; or

(b)supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.

(5)For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3) or (4) is fulfilled with respect to goods or (as the case may be) services of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.

(6)References in subsections (3) and (4) to the supply of goods or (as the case may be) services shall, in relation to goods or services of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—

(a)as references to any of those forms of supply taken separately;

(b)as references to all those forms of supply taken together; or

(c)as references to any of those forms of supply taken in groups.

(7)For the purposes of subsection (6) the decision-making authority may treat goods or services as being the subject of different forms of supply whenever—

(a)the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b)the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(8)The criteria for deciding when goods or services can be treated, for the purposes of this section, as goods or services of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.

(9)For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—

(a)in the case of a reference which is treated as having been made under section 22 by virtue of section 37(2), such time as the [F34CMA] may determine; and

(b)in any other case, immediately before the time when the reference has been, or is to be, made.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

C13S. 23(9)(ab) modified by S.I. 2003/1592, art. 5A(c) (as inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

F3324 Time-limits and prior noticeU.K.

(1)For the purposes of section 23 two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within this section if—

(a)the two or more enterprises ceased to be distinct enterprises before the day on which the reference relating to them is to be made and did so not more than four months before that day; or

(b)notice of material facts about the arrangements or transactions under or in consequence of which the enterprises have ceased to be distinct enterprises has not been given in accordance with subsection (2).

(2)Notice of material facts is given in accordance with this subsection if—

(a)it is given to the [F35CMA] prior to the entering into of the arrangements or transactions concerned or the facts are made public prior to the entering into of those arrangements or transactions; or

(b)it is given to the [F35CMA], or the facts are made public, more than four months before the day on which the reference is to be made.

(3)In this section—

  • made public” means so publicised as to be generally known or readily ascertainable; and

  • notice” includes notice which is not in writing.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

F3325 Extension of time-limitsU.K.

(1)The [F36CMA] and the persons carrying on the enterprises which have or may have ceased to be distinct enterprises may agree to extend by no more than 20 days the four month period mentioned in section 24(1)(a) or (2)(b).

(2)The [F36CMA] may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it considers that any of those persons [F37has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109].

[F38(3)An extension under subsection (2) shall come into force when notice of the extension is given and end—

(a)when the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)if earlier, the CMA cancels the extension.]

(4)The [F36CMA] may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it is seeking undertakings from any of those persons under section 73.

(5)An extension under subsection (4) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—

(a)the giving of the undertakings concerned;

(b)the expiry of the period of 10 days beginning with the first day after the receipt by the [F36CMA] of a notice from the person who has been given a notice under subsection (4) and from whom the undertakings are being sought stating that he does not intend to give the undertakings; or

(c)the cancellation by the [F36CMA] of the extension.

(6)The [F36CMA] may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if 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 [F3922(1) of the EC Merger Regulation](but is not yet proceeding with the matter in pursuance of such a request).

(7)An extension under subsection (6) shall be for the period beginning with the receipt of the notice under that subsection and ending with the receipt of a notice under subsection (8).

(8)The [F40CMA] shall, in connection with any notice given by it under subsection (6), by notice inform the persons carrying on the enterprises which have or may have ceased to be distinct enterprises of the completion by the European Commission of its consideration of the request of the United Kingdom.

(9)Subject to subsections (10) and (11), where the four month period mentioned in section 24(1)(a) or (2)(b) is extended or further extended by virtue of this section in relation to a particular case, any reference to that period in section 24 or the preceding provisions of this section shall have effect in relation to that case as if it were a reference to a period equivalent to the aggregate of the period being extended and the period of the extension (whether or not those periods overlap in time).

(10)Subsection (11) applies where—

(a)the four month period mentioned in section 24(1)(a) or (2)(b) is further extended;

(b)the further extension and at least one previous extension is made under one or more of subsections (2), (4) and (6); and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(11)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (10)(c) shall be disregarded.

(12)No more than one extension is possible under subsection (1).

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F36Word in s. 25(1)-(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 70 (with s. 28)(with Sch.)

Modifications etc. (not altering text)

F3326 Enterprises ceasing to be distinct enterprisesU.K.

(1)For the purposes of this Part any two enterprises cease to be distinct enterprises if they are brought under common ownership or common control (whether or not the business to which either of them formerly belonged continues to be carried on under the same or different ownership or control).

(2)Enterprises shall, in particular, be treated as being under common control if they are—

(a)enterprises of interconnected bodies corporate;

(b)enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or

(c)an enterprise carried on by a body corporate and an enterprise carried on by a person or group of persons having control of that body corporate.

(3)A person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body corporate, or the policy of any person in carrying on an enterprise but without having a controlling interest in that body corporate or in that enterprise, may, for the purposes of subsections (1) and (2), be treated as having control of it.

(4)For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, a person or group of persons may be treated as bringing an enterprise under his or their control if—

(a)being already able to control or materially to influence the policy of the person carrying on the enterprise, that person or group of persons acquires a controlling interest in the enterprise or, in the case of an enterprise carried on by a body corporate, acquires a controlling interest in that body corporate; or

(b)being already able materially to influence the policy of the person carrying on the enterprise, that person or group of persons becomes able to control that policy.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

F3327 Time when enterprises cease to be distinctU.K.

(1)Subsection (2) applies in relation to any arrangements or transaction—

(a)not having immediate effect or having immediate effect only in part; but

(b)under or in consequence of which any two enterprises cease to be distinct enterprises.

(2)The time when the parties to any such arrangements or transaction become bound to such extent as will result, on effect being given to their obligations, in the enterprises ceasing to be distinct enterprises shall be taken to be the time at which the two enterprises cease to be distinct enterprises.

(3)In accordance with subsections (1) and (2) (but without prejudice to the generality of those subsections) for the purpose of determining the time at which any two enterprises cease to be distinct enterprises no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.

(4)Subsections (1) to (3) are subject to subsections (5) to (8) and section 29.

(5)The decision-making authority may, for the purposes of a reference, treat successive events to which this subsection applies as having occurred simultaneously on the date on which the latest of them occurred.

(6)Subsection (5) applies to successive events—

(a)which occur within a period of two years under or in consequence of the same arrangements or transaction, or successive arrangements or transactions between the same parties or interests; and

(b)by virtue of each of which, under or in consequence of the arrangements or the transaction or transactions concerned, any enterprises cease as between themselves to be distinct enterprises.

(7)The decision-making authority may, for the purposes of subsections (5) and (6), treat such arrangements or transactions as the decision-making authority considers appropriate as arrangements or transactions between the same interests.

(8)In deciding whether it is appropriate to treat arrangements or transactions as arrangements or transactions between the same interests the decision-making authority shall, in particular, have regard to the persons substantially concerned in the arrangements or transactions concerned.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

C18S. 27 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595), art. 3

F3328 Turnover testU.K.

(1)For the purposes of section 23 the value of the turnover in the United Kingdom of the enterprise being taken over shall be determined by taking the total value of the turnover in the United Kingdom of the enterprises which cease to be distinct enterprises and deducting—

(a)the turnover in the United Kingdom of any enterprise which continues to be carried on under the same ownership and control; or

(b)if no enterprise continues to be carried on under the same ownership and control, the turnover in the United Kingdom which, of all the turnovers concerned, is the turnover of the highest value.

(2)For the purposes of this Part (other than section 121(4)(c)(ii)) the turnover in the United Kingdom of an enterprise shall be determined in accordance with such provisions as may be specified in an order made by the Secretary of State.

(3)An order under subsection (2) may, in particular, make provision as to—

(a)the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;

(b)the date or dates by reference to which an enterprise’s turnover is to be determined;

(c)the connection with the United Kingdom by virtue of which an enterprise’s turnover is turnover in the United Kingdom.

(4)An order under subsection (2) may, in particular, make provision enabling the decision-making authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (3)).

(5)The [F41CMA] shall—

(a)keep under review the sum for the time being mentioned in section 23(1)(b); and

(b)from time to time advise the Secretary of State as to whether the sum is still appropriate.

(6)The Secretary of State may by order amend section 23(1)(b) so as to alter the sum for the time being mentioned there.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

F3329 Obtaining control by stagesU.K.

(1)Where an enterprise is brought under the control of a person or group of persons in the course of two or more transactions (in this section a “series of transactions”) to which subsection (2) applies, those transactions may, if the decision-making authority considers it appropriate, be treated for the purposes of a reference as having occurred simultaneously on the date on which the latest of them occurred.

(2)This subsection applies to—

(a)any transaction which—

(i)enables that person or group of persons directly or indirectly to control or materially to influence the policy of any person carrying on the enterprise;

(ii)enables that person or group of persons to do so to a greater degree; or

(iii)is a step (whether direct or indirect) towards enabling that person or group of persons to do so; and

(b)any transaction by virtue of which that person or group of persons acquires a controlling interest in the enterprise or, where the enterprise is carried on by a body corporate, in that body corporate.

(3)Where a series of transactions includes a transaction falling within subsection (2)(b), any transaction occurring after the occurrence of that transaction is to be disregarded for the purposes of subsection (1).

(4)Where the period within which a series of transactions occurs exceeds two years, the transactions that may be treated as mentioned in subsection (1) are any of those transactions that occur within a period of two years.

(5)Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of this section to determine—

(a)whether an enterprise is brought under the control of a person or group of persons; and

(b)whether a transaction is one to which subsection (2) applies;

as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.

(6)In determining for the purposes of this section the time at which any transaction occurs, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

C21S. 29 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595), art. 3

F3330 Relevant customer benefitsU.K.

(1)For the purposes of this Part a benefit is a relevant customer benefit if—

(a)it is a benefit to relevant customers in the form of—

(i)lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets in which the substantial lessening of competition concerned has, or may have, occurred or (as the case may be) may occur); or

(ii)greater innovation in relation to such goods or services; and

(b)the decision-making authority believes—

(i)in the case of a reference or possible reference under section 22 or 45(2), as mentioned in subsection (2); and

(ii)in the case of a reference or possible reference under section 33 or 45(4), as mentioned in subsection (3).

(2)The belief, in the case of a reference or possible reference under section 22 or section 45(2), is that—

(a)the benefit has accrued as a result of the creation of the relevant merger situation concerned or may be expected to accrue within a reasonable period as a result of the creation of that situation; and

(b)the benefit was, or is, unlikely to accrue without the creation of that situation or a similar lessening of competition.

(3)The belief, in the case of a reference or possible reference under section 33 or 45(4), is that—

(a)the benefit may be expected to accrue within a reasonable period as a result of the creation of the relevant merger situation concerned; and

(b)the benefit is unlikely to accrue without the creation of that situation or a similar lessening of competition.

(4)In subsection (1) “relevant customers” means—

(a)customers of any person carrying on an enterprise which, in the creation of the relevant merger situation concerned, has ceased to be, or (as the case may be) will cease to be, a distinct enterprise;

(b)customers of such customers; and

(c)any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);

and in this subsection “customers” includes future customers.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text)

F4231 Information powers in relation to completed mergersU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3332 Supplementary provision for purposes of [F43section 25] U.K.

F44(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F44(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F44(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In determining for the purposes of section 25(1) or (5)(b) F45... any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of—

(a)Saturday, Sunday, Good Friday and Christmas Day; and

(b)any day which is a bank holiday in England and Wales.

Textual Amendments

F33Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F44S. 32(1)-(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 18(2)

Modifications etc. (not altering text)

Duty to make references: anticipated mergersU.K.

33 Duty to make references in relation to anticipated mergersU.K.

(1)[F46The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA 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 [F47CMA] 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 F48...;

(b)the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference F49...; 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—

[F50(za)the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;]

(a)the making of the reference is prevented by section F51. . . 74(1) F52... or paragraph 4 of Schedule 7;

(b)the [F53CMA] 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 [F53CMA] under section 56(1); [F54or]

(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 [F5522(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[F56; 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.]

[F57(3A)Section 33(3)(f) shall cease to apply if the [F53CMA] 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.

Textual Amendments

F51Words 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)

34 Supplementary provision in relation to anticipated mergersU.K.

(1)The Secretary of State may by order make such provision as he considers appropriate about the operation of sections 27 and 29 in relation to—

(a)references under this Part which relate to arrangements which are in progress or in contemplation; or

(b)notices under section 42(2), 59(2) or 67(2) which relate to such arrangements.

(2)An order under subsection (1) may, in particular—

(a)provide for sections 27(5) to (8) and 29 to apply with modifications in relation to such references or notices or in relation to particular descriptions of such references or notices;

(b)enable particular descriptions of events, arrangements or transactions which have already occurred—

(i)to be taken into account for the purposes of deciding whether to make such references or such references of a particular description or whether to give such notices or such notices of a particular description;

(ii)to be dealt with under such references or such references of a particular description or under such notices or such notices of a particular description.

[F5834ZATime-limits for decisions about referencesU.K.

(1)In carrying out its function of deciding whether to make a reference under section 22 or 33, the CMA shall, within the initial period—

(a)decide whether the duty to make a reference under the section applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and

(b)inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.

(2)Nothing in this section prevents the CMA from making a reference under section 22 or 33 in the event that—

(a)it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but

(b)no such undertakings are offered or accepted.

(3)In this section—

  • the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with—

    (a)

    where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and

    (b)

    in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference;

  • working day” means any day which is not—

    (a)

    a Saturday, a Sunday, Good Friday or Christmas Day, or

    (b)

    a day which is a bank holiday in England and Wales.

(4)For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to—

(a)arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or

(b)the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.

(5)Nothing in this section applies where section 34A(2) or 46A(2) applies (duties where case referred by the European Commission).

Textual Amendments

F58Ss. 34ZA-34ZC and cross-heading 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)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

34ZBExtension of time-limitsU.K.

(1)The CMA may extend the initial period mentioned in section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question.

(2)In subsection (1), “relevant person” means—

(a)any person carrying on any of the enterprises concerned;

(b)any person who (whether alone or as a member of a group) owns or has control of any such person; or

(c)any officer, employee or agent of any person mentioned in paragraph (a) or (b).

(3)For the purposes of subsection (2), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

(4)Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days.

(5)The CMA may by notice extend the initial period if 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 22(1) of the EC Merger Regulation (but is not yet proceeding with the matter in pursuance of such a request).

(6)An extension under subsection (1) or (4) comes into force when published under section 107.

(7)An extension under subsection (1) continues in force until—

(a)the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)the CMA publishes its decision to cancel the extension.

(8)An extension under subsection (5) shall be for the period which—

(a)begins when notice is given under that subsection, and

(b)ends when the CMA gives notice of the completion by the European Commission of its consideration of the request of the United Kingdom.

(9)In this section, “working day” has the same meaning as in section 34ZA.

Textual Amendments

F58Ss. 34ZA-34ZC and cross-heading 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)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

34ZCSections 34ZA and 34ZB: supplementaryU.K.

(1)An extension of the period mentioned in section 34ZA(1) may be made under each of subsections (1), (4) or (5) of section 34ZB.

(2)No more than one extension is possible under section 34ZB(4).

(3)Where a period is extended or further extended under section 34ZB(1), (4) or (5), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(4)Subsection (5) applies where—

(a)the period mentioned in section 34ZA(1) is further extended;

(b)the further extension and at least one previous extension is made under one or more of subsections (1) and (5) of section 34ZB; and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(5)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.

(6)The Secretary of State may by order do either or both of the following—

(a)amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period;

(b)amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period.

(7)But no alteration may be made by virtue of subsection (6) which results in—

(a)the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or

(b)the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.

(8)Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

(9)In this section, “working day” has the same meaning as in section 34ZA.]

Textual Amendments

F58Ss. 34ZA-34ZC and cross-heading 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)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F59Cases referred by European Commission under EC Merger RegulationU.K.

Textual Amendments

34ADuty of [F60CMA] where case referred by the European CommissionU.K.

(1)Subsection (2) applies if the European Commission has by a decision referred the whole or part of a case to the [F61CMA] under Article 4(4) or 9 of the EC Merger Regulation, or is deemed to have taken such a decision, unless an intervention notice is in force in relation to that case.

(2)Before the end of the preliminary assessment period, the [F62CMA] shall—

(a)decide whether to make a reference F63... under section 22 or 33; and

(b)inform the persons carrying on the enterprises concerned by notice of that decision and of the reasons for it.

(3)The [F64CMA] may, for the purposes of subsection (2), decide not to make a reference on the basis that it is considering whether to seek or accept undertakings under section 73 instead of making a reference; but a decision taken on that basis does not prevent the [F64CMA] from making a reference under section 22 or 33 in the event of no such undertakings being offered or accepted.

(4)In this section—

  • the preliminary assessment period” means, subject to subsection (5), the period of 45 working days beginning with the day after the day on which the decision of the European Commission to refer the case is taken (or is deemed to have been taken); and

  • working day” means any day which is not—

(a)a Saturday;

(b)a Sunday; or

(c)a day which is a European Commission holiday (as published in the Official Journal of the [F19European Union] before the beginning of the year in which it occurs).]

[F65(5)The CMA may extend the preliminary assessment period if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.]

[F66(6)An extension under subsection (5) shall come into force when published under section 107.]

[F66(6A)An extension under subsection (5) shall continue in force until—

(a)the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)the CMA publishes its decision to cancel the extension.]

F67(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F63Words in s. 34A(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 73(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6834BPower to request information in referred casesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Determination of referencesU.K.

[F6934CFunctions to be exercised by CMA groupsU.K.

(1)Where a reference is made to the chair of the CMA under section 22 or 33 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—

(a)sections 35 to 41B, except for sections 35(6) and (7), 36(5) and (6) and 37(6);

(b)where a reference is treated by virtue of section 37(2) as having been made under section 22, section 23(9)(a);

(c)section 76, as it applies in relation to orders under section 83, and sections 77, 78 and 80 to 84;

(d)section 87, so far as relating to an enforcement order made on behalf of the CMA by the group;

(e)sections 92(4), 94 and 94A, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;

(f)section 104, so far as relating to a decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section;

(g)section 107, so far as relating to anything done on behalf of the CMA by the group;

(h)section 109, where the permitted purpose in question relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;

(i)sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

(j)section 120(5)(b), so far as relating to a decision of the group;

(k)Schedule 10, so far as relating to an enforcement undertaking or enforcement order which the group is considering accepting or making, or which the group has accepted or made, on behalf of the CMA.

(2)The functions of the CMA under section 95(4) in relation to the matter concerned may be carried out on behalf of the CMA by the group.

(3)Nothing in subsection (1) prevents the CMA Board from exercising a function of the CMA under or by virtue of the following provisions of this Part where the group constituted as mentioned in subsection (1) has ceased to exist—

(a)section 76 and Schedule 10, so far as relating to the making of an order under section 76 in relation to an order under section 83;

(b)section 83 and Schedule 10, so far as relating to the making of an order under section 83;

(c)sections 76 (as it applies in relation to an order under section 83), 80 to 84 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

(d)section 87;

(e)sections 92(4) and 94.]

Textual Amendments

Modifications etc. (not altering text)

35 Questions to be decided in relation to completed mergersU.K.

(1)Subject to subsections (6) and (7) and section 127(3), the [F70CMA] shall, on a reference under section 22, decide the following questions—

(a)whether a relevant merger situation has been created; and

(b)if so, whether the creation of that situation has resulted, or 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)For the purposes of this Part there is an anti-competitive outcome if—

(a)a relevant merger situation has been created and the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; or

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

(3)The [F71CMA] shall, if it has decided on a reference under section 22 that there is an anti-competitive outcome (within the meaning given by subsection (2)(a)), 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 has resulted from, or 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 has resulted from, or 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.

(4)In deciding the questions mentioned in subsection (3) the [F71CMA] 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.

(5)In deciding the questions mentioned in subsection (3) the [F71CMA] 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.

(6)In relation to the question whether a relevant merger situation has been created, a reference under section 22 may be framed so as to require the [F71CMA] to exclude from consideration—

(a)subsection (1) of section 23;

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

(c)one of those subsections if the [F71CMA] finds that the other is satisfied.

(7)In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen, a reference under section 22 may be framed so as to require the [F71CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments

Modifications etc. (not altering text)

C25Ss. 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)

36 Questions to be decided in relation to anticipated mergersU.K.

(1)Subject to subsections (5) and (6) and section 127(3), the [F72CMA] 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 [F72CMA] 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 [F72CMA] 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 [F72CMA] 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 [F72CMA] to exclude from consideration—

(a)subsection (1) of section 23;

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

(c)one of those subsections if the [F72CMA] finds that the other is satisfied.

(6)In relation to the question whether 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 [F72CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments

F72Word 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.)

Modifications etc. (not altering text)

C26Ss. 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)

37 Cancellation and variation of references under section 22 or 33U.K.

(1)The [F73CMA] shall cancel a reference under section 33 if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.

(2)The [F73CMA] may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22; and, in such cases, references in this Part to references under those sections shall, so far as may be necessary, be construed accordingly.

(3)Where, by virtue of subsection (2), the [F73CMA] treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22, sections 77 to 81 shall, in particular, apply as if the reference had been made under section 33 or (as the case may be) 22 instead of under section 22 or 33.

(4)Subsection (5) applies in relation to any undertaking accepted under section 80, or any order made under section 81, which is in force immediately before the [F73CMA], by virtue of subsection (2), treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22.

(5)The undertaking or order shall, so far as applicable, continue in force as if—

(a)in the case of an undertaking or order which relates to a reference made under section 22, accepted or made in relation to a reference made under section 33; and

(b)in the case of an undertaking or order which relates to a reference made under section 33, accepted or made in relation to a reference made under section 22;

and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.

(6)The [F74CMA] may at any time vary a reference under section 22 or 33.

F75(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F75(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)No variation by the [F76CMA] under this section shall be capable of altering the period permitted by section 39 within which the report of the [F77CMA] under section 38 is to be prepared and published.

38 Investigations and reports on references under section 22 or 33U.K.

(1)The [F78CMA] shall prepare and publish a report on a reference under section 22 or 33 within the period permitted by section 39.

(2)The report shall, in particular, contain—

(a)the decisions of the [F78CMA] on the questions which it is required to answer by virtue of section 35 or (as the case may be) 36;

(b)its reasons for its decisions; and

(c)such information as the [F78CMA] considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.

(3)The [F78CMA] shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.

F79(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 Time-limits for investigations and reportsU.K.

(1)The [F80CMA] shall prepare and publish its report under section 38 within the period of 24 weeks beginning with the date of the reference concerned.

(2)[F81Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 22 or 33, the Commission shall prepare and publish its report under section 38—

(a)within the period of 24 weeks beginning with the date of the reference; or

(b)if it is a shorter period, within such period as is necessary to ensure compliance with that article.]

(3)The [F80CMA] may extend, by no more than 8 weeks, the period within which a report under section 38 is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.

(4)The [F82CMA] may extend the period within which a report under section 38 is to be prepared and published if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.

(5)In [F83this section]relevant person” means—

(a)any person carrying on any of the enterprises concerned;

(b)any person who (whether alone or as a member of a group) owns or has control of any such person; or

(c)any officer, employee or agent of any person mentioned in paragraph (a) or (b).

(6)For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

(7)An extension under subsection (3) or (4) shall come into force when published under section 107.

(8)An extension under subsection (4) shall continue in force until—

(a)the person concerned provides the information or documents to the satisfaction of the [F82CMA] or (as the case may be) appears as a witness in accordance with the requirements of the [F82CMA]; or

(b)the [F82CMA] publishes its decision to cancel the extension.

[F84(8A)In the case of a report on a reference under section 33, the CMA may provide that a specified period of no more than 3 weeks is to be disregarded for the purposes of any time-limit for the preparation and publication of the report which applies by virtue of this section if—

(a)a relevant person has so requested before the end of the period of 3 weeks beginning with the date of the reference concerned; and

(b)the CMA reasonably believes that the arrangements in question might be abandoned.

(8B)If the CMA exercises the power under subsection (8A), the CMA shall publish a notice to that effect.]

(9)References in this Part to the date of a reference shall be construed as references to the date specified in the reference as the date on which it is made.

(10)This section is subject to section 40.

40 Section 39: supplementaryU.K.

(1)[F85No extension is possible under subsection (3) or (4) of section 39 where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(b) of that section.]

(2)[F85Where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(a) of section 39, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.]

(3)A period extended under subsection (3) of section 39 may also be extended under subsection (4) of that section and a period extended under subsection (4) of that section may also be extended under subsection (3) of that section.

(4)No more than one extension is possible under section 39(3).

(5)Where a period within which a report under section 38 is to be prepared and published is extended or further extended under section 39(3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(6)Subsection (7) applies where—

(a)the period within which the report under section 38 is to be prepared and published is further extended;

(b)the further extension and at least one previous extension is made under section 39(4); and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(7)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.

(8)The Secretary of State may by order amend section 39 so as to alter any one or more of the following periods—

(a)the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;

(b)[F85the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;]

(c)the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.

(9)No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) [F86or (2)(a)] of section 39 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.

(10)An order under subsection (8) shall not affect any period of time within which the [F87CMA] is under a duty to prepare and publish its report under section 38 in relation to a reference under section 22 or 33 if the [F87CMA] is already under that duty in relation to that reference when the order is made.

(11)Before making an order under subsection (8) the Secretary of State shall consult the [F87CMA] and such other persons as he considers appropriate.

(12)The Secretary of State may make regulations for the purposes of section 39(8).

(13)The regulations may, in particular—

(a)provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the [F88CMA] for the purposes of section 39(8));

(b)provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the [F88CMA] for the purposes of section 39(8));

(c)provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the fact that—

(i)the [F88CMA] is satisfied as to the provision of the information or documents required by it; or

(ii)the person concerned has appeared as a witness in accordance with the requirements of the [F88CMA];

(d)provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the time at which the [F88CMA] is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.

Textual Amendments

41 Duty to remedy effects of completed or anticipated mergersU.K.

(1)Subsection (2) applies where a report of the [F89CMA] has been prepared and published under section 38 within the period permitted by section 39 and contains the decision that there is an anti-competitive outcome.

(2)The [F89CMA] shall take such action under section 82 or 84 as it considers to be reasonable and practicable—

(a)to remedy, mitigate or prevent the substantial lessening of competition concerned; and

(b)to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition.

(3)The decision of the [F89CMA] under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) or (as the case may be) 36(2) unless there has been a material change of circumstances since the preparation of the report or the [F89CMA] otherwise has a special reason for deciding differently.

(4)In making a decision under subsection (2), the [F89CMA] 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.

(5)In making a decision under subsection (2), the [F89CMA] 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.

Textual Amendments

[F9041ATime-limit for discharging duty under section 41U.K.

(1)The CMA shall discharge its duty under section 41(2) within the period of 12 weeks beginning with the date on which it publishes the report concerned under section 38.

(2)The CMA may extend, by no more than 6 weeks, the period within which its duty under section 41(2) shall be discharged if it considers that there are special reasons for doing so.

(3)The CMA may extend the period within which its duty under section 41(2) shall be discharged if it considers that a relevant person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109 which is given in relation to the reference.

(4)In subsection (3), “relevant person” means—

(a)any person carrying on any of the enterprises concerned;

(b)any person who (whether alone or as a member of a group) owns or has control of any such person; or

(c)any officer, employee or agent of any person mentioned in paragraph (a) or (b).

(5)For the purposes of subsection (4), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

(6)An extension under subsection (2) or (3) comes into force when published under section 107.

(7)An extension under subsection (3) continues in force until—

(a)the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)the CMA publishes its decision to cancel the extension.

Textual Amendments

F90Ss. 41A, 41B 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)(i)(3), Sch. 8 para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

41BSection 41A: supplementaryU.K.

(1)A period extended under section 41A(2) may also be extended under section 41A(3), and a period extended under section 41A(3) may also be extended under section 41A(2).

(2)No more than one extension is possible under section 41A(2).

(3)Where a period is extended or further extended under section 41A(2) or (3), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(4)Subsection (5) applies where—

(a)the period within which the CMA must discharge its duty under section 41(2) is further extended;

(b)the further extension and at least one previous extension is made under section 41A(3); and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(5)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.

(6)The Secretary of State may by order amend section 41A so as to alter either or both of the following periods—

(a)the period of 12 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;

(b)the period of 6 weeks mentioned in subsection (2) of that section or any period for the time being mentioned in that subsection in substitution for that period.

(7)But no alteration may be made by virtue of subsection (6) which results in—

(a)the period for the time being mentioned in section 41A(1) exceeding 12 weeks; or

(b)the period for the time being mentioned in section 41A(2) exceeding 6 weeks.

(8)Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.]

Textual Amendments

F90Ss. 41A, 41B 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)(i)(3), Sch. 8 para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Chapter 2U.K.Public interest cases

Power to make referencesU.K.

42 Intervention by Secretary of State in certain public interest casesU.K.

(1)Subsection (2) applies where—

(a)the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(b)no reference under section 22 or 33 has been made in relation to the relevant merger situation concerned;

(c)no decision has been made not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33 or a decision to accept undertakings under section 73 instead of making such a reference); and

(d)no reference is prevented from being made under section 22 or 33 by virtue of—

(i)[F91section 22(3)(za), (a) or (e)] or (as the case may be) [F9233(3)(za), (a) or (e)]; or

(ii)[F93EU] law or anything done under or in accordance with it.

(2)The Secretary of State may give a notice to the [F94CMA] (in this Part “an intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.

(3)For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 58 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.

(4)No more than one intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.

(5)For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 [F95to 30] (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).

(6)In their application by virtue of subsection (5) sections 23 [F96to 30] shall have effect as if—

(a)for paragraph (a) of section 23(9) there were substituted—

(a)in relation to the giving of an intervention notice, the time when the notice is given;

(aa)in relation to the making of a report by the [F97CMA] under section 44, the time of the making of the report;

(ab)in the case of a reference which is treated as having been made under section 45(2) or (3) by virtue of section 49(1), such time as the [F98CMA] may determine; and;

(b)the references to the [F97CMA] in [F99section 25(1) to (3), (6) and (8)] included references to the Secretary of State;

(c)the references to the [F97CMA] in section 25(4) and (5) were references to the Secretary of State;

(d)the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;

(e)after section 25(5) there were inserted—

(5A)The Secretary of State may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if, by virtue of section 46(5) or paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.

(5B)An extension under subsection (5A) shall be for the period of the delay.;

(f)in section 25(10)(b) after the word “(4)” there were inserted “ , (5A) ”;

(g)the reference in section 25(12) to one extension were a reference to one extension by the [F97CMA] and one extension by the Secretary of State;

(h)the powers to extend time-limits under section 25 as applied by subsection (5) above F100... were not exercisable by the [F97CMA] or the Secretary of State before the giving of an intervention notice but the existing time-limits [F101by virtue of section 24 (as so applied)] in relation to possible references under section 22 or 33 were applicable for the purposes of the giving of that notice;

(i)the existing time-limits [F102by virtue of section 24 (as so applied)] in relation to possible references under section 22 or 33 (except for extensions under section 25(4)) remained applicable on and after the giving of an intervention notice as if any extensions were made under section 25 as applied by subsection (5) above but subject to further alteration by the [F97CMA] or the Secretary of State under section 25 as so applied;

F103(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)in the case of the giving of intervention notices, the references in sections 23 [F104to 30] to the making of a reference or a reference were, so far as necessary, references to the giving of an intervention notice or an intervention notice; F105...

F105(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.

(8)For the purposes of this Part a public interest consideration is finalised if—

(a)it is specified in section 58 otherwise than by virtue of an order under subsection (3) of that section; or

(b)it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (7) of section 124 and within the period mentioned in that subsection.

Textual Amendments

43 Intervention notices under section 42U.K.

(1)An intervention notice shall state—

(a)the relevant merger situation concerned;

(b)the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and

(c)where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.

(2)Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(3)An intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.

(4)For the purposes of this Part, a matter to which an intervention notice relates is finally determined under this Chapter if—

(a)the time within which the [F106CMA] [F107or (if relevant) OFCOM] is to report to the Secretary of State under section 44 [F108or (as the case may be) 44A] has expired and no such report has been made;

(b)the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 45;

(c)the Secretary of State otherwise decides not to make a reference under that section;

(d)the [F109CMA] cancels such a reference under section 48(1) or 53(1);

(e)the time within which the [F109CMA] is to prepare a report under section 50 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;

(f)the time within which the Secretary of State is to make and publish a decision under section 54(2) has expired and no such decision has been made and published;

(g)the Secretary of State decides under section 54(2) to make no finding at all in the matter;

(h)the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;

(i)the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or

(j)the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.

(5)For the purposes of this Part the time when a matter to which an intervention notice relates is finally determined under this Chapter is—

(a)in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;

(b)in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;

(c)in a case falling within subsection (4)(c), (d), (g) or (h), the making of the decision concerned;

(d)in a case falling within subsection (4)(i), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and

(e)in a case falling within subsection (4)(j), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

[F110(6)In this Part “OFCOM” means the Office of Communications.]

Textual Amendments

F107Words in s. 43(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 8(2)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F108Words in s. 43(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 8(2)(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F110S. 43(6) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 8(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

44 Investigation and report by [F111CMA] U.K.

(1)Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.

(2)The [F112CMA] shall, within such period as the Secretary of State may require, give a report to the Secretary of State in relation to the case.

(3)The report shall contain—

(a)advice from the [F112CMA] on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and

(b)a summary of any representations about the case which have been received by the [F112CMA] and which relate to any public interest consideration mentioned in the intervention notice concerned [F113(other than a media public interest consideration)] and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.

(4)The report shall, in particular, include decisions as to whether the [F114CMA] believes that it is, or may be, the case that—

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

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

(c)the market or markets concerned would not be of sufficient importance to justify the making of a reference F115... under section 22 or 33;

(d)in the case of arrangements which are in progress or in contemplation, the arrangements are not sufficiently far advanced, or not sufficiently likely to proceed, to justify the making of such a reference;

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

(f)it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7.

(5)If the [F116CMA] believes that it is or may be the case that it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7, the report shall contain descriptions of the undertakings which the [F116CMA] believes are, or may be, appropriate.

[F117(5A)The report may, in particular, contain a summary of any representations about the case which have been received by the [F116CMA] and which relate to any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.]

(6)The report may, in particular, include advice and recommendations on any public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.

(7)The [F118CMA] shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

[F119(8)In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned—

(a)is specified in section 58(2A) to (2C); or

(b)in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58.

(9)In this Part “broadcasting” means the provision of services the provision of which—

(a)is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996; or

(b)would be required to be so licensed if provided by a person subject to licensing under the Part in question.

(10)In this Part “newspaper” means a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom.

(11)The Secretary of State may by order amend subsections (9) and (10).]

Textual Amendments

F113Words in s. 44(3)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(1), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F117S. 44(5A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F119S. 44(8)-(11) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

[F12044AAdditional investigation and report by OFCOM: media mergersU.K.

(1)Subsection (2) applies where—

(a)the Secretary of State has given an intervention notice in relation to a relevant merger situation; and

(b)the intervention notice mentions any media public interest consideration.

(2)OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.

(3)The report shall contain—

(a)advice and recommendations on any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and

(b)a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

(4)OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.]

Textual Amendments

F120S. 44A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 377, 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

45 Power of Secretary of State to refer matter to [F121CMA] U.K.

(1)Subsections (2) to (5) apply where the Secretary of State—

(a)has given an intervention notice in relation to a relevant merger situation; and

(b)has received a report of the [F122CMA] under section 44[F123, and any report of OFCOM which is required by virtue of section 44A,] in relation to the matter.

(2)The Secretary of State may make a reference [F124to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he believes that it is or may be the case that—

(a)a relevant merger situation has been created;

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

(c)one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

(d)taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

(3)The Secretary of State may make a reference [F124to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he believes that it is or may be the case that—

(a)a relevant merger situation has been created;

(b)the creation of that situation has not resulted, and may be expected not to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

(c)one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

(d)taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

(4)The Secretary of State may make a reference [F124to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he 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;

(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;

(c)one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

(d)taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.

(5)The Secretary of State may make a reference [F124to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he 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;

(b)the creation of that situation may be expected not to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

(c)one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

(d)taking account only of the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.

(6)For the purposes of this Chapter any anti-competitive outcome shall be treated as being adverse to the public interest unless it is justified by one or more than one public interest consideration which is relevant.

(7)This section is subject to section 46.

Textual Amendments

F123Words in s. 45(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 9 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

46 References under section 45: supplementaryU.K.

(1)No reference shall be made under section 45 if—

(a)the making of the reference is prevented by section F125. . . 74(1) F126... or paragraph 4 of Schedule 7; [F127or]

(b)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 [F12822(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.[F129; or

(c)subject to subsection (1A), 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.]

[F130(1A)Subsection (1)(c) shall cease to apply if the Secretary of State 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.]

(2)The Secretary of State, in deciding whether to make a reference under section 45, shall accept the decisions of the [F131CMA] included in its report by virtue of subsection (4) of section 44 and any descriptions of undertakings as mentioned in subsection (5) of that section.

(3)Where the decision to make a reference under section 45 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised before the end of that period.

(4)Subject to subsection (5), where the decision to make a reference under section 45(2) or (4) is made at any time before the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised if its effect would be to prevent, or to help to prevent, an anti-competitive outcome from being adverse to the public interest.

(5)The Secretary of State may, if he believes that there is a realistic prospect of the public interest consideration mentioned in subsection (4) being finalised within the period of 24 weeks beginning with the giving of the intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.

(6)A reference under section 45 shall, in particular, specify—

(a)the subsection of that section under which it is made;

(b)the date on which it is made; and

(c)the public interest consideration or considerations mentioned in the intervention notice concerned which the Secretary of State is not under a duty to disregard by virtue of subsection (3) above and which he believes are or may be relevant to a consideration of the relevant merger situation concerned.

[F132Cases referred by European Commission under the EC Merger RegulationU.K.

Textual Amendments

46ACases referred by the European Commission where intervention notice is in forceU.K.

(1)Subsection (2) applies if the European Commission has by a decision referred the whole or part of a case to the [F133CMA] under Article 4(4) or 9 of the EC Merger Regulation, or is deemed to have taken such a decision, and an intervention notice is in force in relation to that case.

(2)Before the end of the preliminary assessment period, the Secretary of State shall—

(a)decide whether to make a reference F134... under section 45; and

(b)inform the persons carrying on the enterprises concerned by notice of that decision and of the reasons for it.

(3)The Secretary of State may, for the purposes of subsection (2), decide not to make a reference on the basis that he is considering whether to seek or accept undertakings under paragraph 3 of Schedule 7 instead of making a reference; but a decision taken on that basis does not prevent the Secretary of State from making a reference under section 45 in the event of no such undertakings being offered or accepted.

(4)In this section—

  • the preliminary assessment period” means, subject to section 46B, the period of 45 working days beginning with the day after the day on which the decision of the European Commission to refer the case is taken (or is deemed to have been taken); and

  • working day” means any day which is not—

    (a)

    a Saturday;

    (b)

    a Sunday; or

    (c)

    a day which is a European Commission holiday (as published in the Official Journal of the [F19European Union] before the beginning of the year in which it occurs).

46BExtension of preliminary assessment period]U.K.

[F135(1)The CMA may extend the preliminary assessment period for the purposes of section 46A if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.]

F136(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F137(3)An extension under subsection (1) shall come into force when published under section 107.

(3A)An extension under subsection (1) shall continue in force until—

(a)the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)the CMA publishes its decision to cancel the extension.]

F138(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F13946CPower to request information in referred casesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reports on referencesU.K.

[F14046DFunctions to be exercised by CMA groupsU.K.

Where a reference is made to the chair of the CMA under section 45 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—

(a)sections 47 to 53;

(b)where a reference is treated by virtue of section 49(1) as having been made under section 45(2) or (3), section 23(9)(ab) (as it has effect by virtue of section 42(6));

(c)sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;

(d)section 107, so far as relating to anything done on behalf of the CMA by the group;

(e)section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;

(f)sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

(g)section 118(4);

(h)section 120(5)(b), so far as relating to a decision of the group.]

Textual Amendments

Modifications etc. (not altering text)

47 Questions to be decided on references under section 45U.K.

(1)The [F141CMA] shall, on a reference under section 45(2) or (3), decide whether a relevant merger situation has been created.

(2)If the [F141CMA] decides that such a situation has been created, it shall, on a reference under section 45(2), decide the following additional questions—

(a)whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and

(b)whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

(3)If the [F141CMA] decides that a relevant merger situation has been created, it shall, on a reference under section 45(3), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

(4)The [F141CMA] shall, on a reference under section 45(4) or (5), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation.

(5)If the [F141CMA] decides that such arrangements are in progress or in contemplation, it shall, on a reference under section 45(4), decide the following additional questions—

(a)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; and

(b)whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.

(6)If the [F141CMA] decides that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, it shall, on a reference under section 45(5), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.

(7)The [F141CMA] shall, if it has decided on a reference under section 45 that the creation of a relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions—

(a)whether action should be taken by the Secretary of State under section 55 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation;

(b)whether the [F141CMA] should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation; and

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

(8)Where the [F141CMA] has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition within any market or markets in the United Kingdom for goods or services, it shall also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 56(6))—

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

(b)whether the [F141CMA] should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or 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.

(9)In deciding the questions mentioned in subsections (7) and (8) the [F141CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

(a)the adverse effects to the public interest; or

(b)(as the case may be) the substantial lessening of competition and any adverse effects resulting from it.

(10)In deciding the questions mentioned in subsections (7) and (8) in a case where it has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition, the [F141CMA] 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.

(11)In this section “admissible public interest consideration” means any public interest consideration which is specified in the reference under section 45 and which the [F141CMA] is not under a duty to disregard.

Textual Amendments

F141Word in s. 47(1)-(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 89 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C29Ss. 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)

48 Cases where references or certain questions need not be decidedU.K.

(1)The [F142CMA] shall cancel a reference under section 45(4) or (5) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.

(2)In relation to the question whether a relevant merger situation has been created or the question whether a relevant merger situation will be created, a reference under section 45 may be framed so as to require the [F142CMA] to exclude from consideration—

(a)subsection (1) of section 23;

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

(c)one of those subsections if the [F142CMA] finds that the other is satisfied.

(3)In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen or the question whether any such result will arise, a reference under section 45 may be framed so as to require the [F142CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments

F142Word in s. 48(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 90 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

49 Variation of references under section 45U.K.

(1)The [F143CMA] may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat—

(a)a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or

(b)a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;

and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.

(2)Where, by virtue of subsection (1), the [F143CMA] treats a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section, paragraphs F144... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (4) or (as the case may be) (5) of that section instead of under subsection (2) or (3) of that section.

(3)Where, by virtue of subsection (1), the [F143CMA] treats a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section, paragraphs F145... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (2) or (as the case may be) (3) of that section instead of under subsection (4) or (5) of that section.

(4)Subsection (5) applies in relation to F146... any order made under paragraph 2 of [F147Schedule 7], which is in force immediately before the [F143CMA], by virtue of subsection (1), treats a reference as mentioned in subsection (1).

(5)The F148... order shall, so far as applicable, continue in force as if—

(a)in the case of an F148... order which relates to a reference under subsection (2) or (3) of section 45 F149... made in relation to a reference made under subsection (4) or (as the case may be) (5) of that section; and

(b)in the case of an F148... order which relates to a reference made under subsection (4) or (5) of that section F149... made in relation to a reference made under subsection (2) or (as the case may be) (3) of that section;

and the F148... order concerned may be varied F150... or revoked accordingly.

(6)The Secretary of State may at any time vary a reference under section 45.

(7)The Secretary of State shall consult the [F143CMA] before varying any such reference.

(8)Subsection (7) shall not apply if the [F143CMA] has requested the variation concerned.

(9)No variation by the Secretary of State under this section shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by section 51 within which the report of the [F143CMA] under section 50 is to be prepared and given to the Secretary of State.

50 Investigations and reports on references under section 45U.K.

(1)The [F151CMA] shall prepare a report on a reference under section 45 and give it to the Secretary of State within the period permitted by section 51.

(2)The report shall, in particular, contain—

(a)the decisions of the [F151CMA] on the questions which it is required to answer by virtue of section 47;

(b)its reasons for its decisions; and

(c)such information as the [F151CMA] considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.

[F152(2A)Where the report relates to a reference under section 45 which has been made after a report of OFCOM under section 44A, the [F151CMA] shall give a copy of its report (whether or not published) to OFCOM.]

(3)The [F151CMA] shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.

Textual Amendments

F151Word in s. 50(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 92 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

F152S. 50(2A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 10 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

51 Time-limits for investigations and reports by [F153CMA] U.K.

(1)The [F154CMA] shall prepare its report under section 50 and give it to the Secretary of State under that section within the period of 24 weeks beginning with the date of the reference concerned.

(2)[F155Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the [F154CMA] shall prepare its report under section 50 and give it to the Secretary of State—

(a)within the period of 24 weeks beginning with the date of the reference; or

(b)if it is a shorter period, within such period as is necessary to ensure compliance with that article.]

(3)The [F154CMA] may extend, by no more than 8 weeks, the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.

(4)The [F154CMA] may extend the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.

(5)In subsection (4) “relevant person” means—

(a)any person carrying on any of the enterprises concerned;

(b)any person who (whether alone or as a member of a group) owns or has control of any such person; or

(c)any officer, employee or agent of any person mentioned in paragraph (a) or (b).

(6)For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

(7)An extension under subsection (3) or (4) shall come into force when published under section 107.

(8)An extension under subsection (4) shall continue in force until—

(a)the person concerned provides the information or documents to the satisfaction of the [F156CMA] or (as the case may be) appears as a witness in accordance with the requirements of the [F156CMA]; or

(b)the [F156CMA] publishes its decision to cancel the extension.

(9)This section is subject to sections 52 and 53.

52 Section 51: supplementaryU.K.

(1)[F157No extension is possible under subsection (3) or (4) of section 51 where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(b) of that section.]

(2)[F157Where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(a) of section 51, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.]

(3)A period extended under subsection (3) of section 51 may also be extended under subsection (4) of that section and a period extended under subsection (4) of that section may also be extended under subsection (3) of that section.

(4)No more than one extension is possible under section 51(3).

(5)Where a period within which a report under section 50 is to be prepared and given to the Secretary of State is extended or further extended under section 51(3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(6)Subsection (7) applies where—

(a)the period within which the report under section 50 is to be prepared and given to the Secretary of State is further extended;

(b)the further extension and at least one previous extension is made under section 51(4); and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(7)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.

(8)The Secretary of State may by order amend section 51 so as to alter any one or more of the following periods—

(a)the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;

(b)[F157the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;]

(c)the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.

(9)No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) [F158or (2)(a)] of section 51 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.

(10)An order under subsection (8) shall not affect any period of time within which the [F159CMA] is under a duty to prepare and give to the Secretary of State its report under section 50 in relation to a reference under section 45 if the [F159CMA] is already under that duty in relation to that reference when the order is made.

(11)Before making an order under subsection (8) the Secretary of State shall consult the [F159CMA] and such other persons as he considers appropriate.

(12)The Secretary of State may make regulations for the purposes of section 51(8).

(13)The regulations may, in particular—

(a)provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the [F160CMA] for the purposes of section 51(8));

(b)provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the [F160CMA] for the purposes of section 51(8));

(c)provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the fact that—

(i)the [F160CMA] is satisfied as to the provision of the information or documents required by it; or

(ii)the person concerned has appeared as a witness in accordance with the requirements of the [F160CMA];

(d)provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the time at which the [F160CMA] is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.

53 Restrictions on action where public interest considerations not finalisedU.K.

(1)The [F161CMA] shall cancel a reference under section 45 if—

(a)the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;

(b)no other public interest consideration is mentioned in the notice;

(c)at least 24 weeks has elapsed since the giving of the notice; and

(d)the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks.

(2)Where a reference F162... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the [F163CMA] shall not give its report to the Secretary of State under section 50 in relation to that reference unless—

(a)the period of 24 weeks beginning with the giving of the intervention notice concerned has expired; [F164or]

(b)the public interest consideration concerned has been finalised; [F165or]

(c)[F166the report must be given to the Secretary of State to ensure compliance with article 9(6) of the European Merger Regulations.]

(3)The [F167CMA] shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which has not been finalised before the giving of the report.

(4)The [F167CMA] shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.

(5)Subsections (1) to (4) are without prejudice to the power of the [F167CMA] to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.

Decisions of the Secretary of StateU.K.

54 Decision of Secretary of State in public interest casesU.K.

(1)Subsection (2) applies where the Secretary of State has received a report of the [F168CMA] under section 50 in relation to a relevant merger situation.

(2)The Secretary of State shall decide whether to make an adverse public interest finding in relation to the relevant merger situation and whether to make no finding at all in the matter.

(3)For the purposes of this Part the Secretary of State makes an adverse public interest finding in relation to a relevant merger situation if, in relation to that situation, he decides—

(a)in connection with a reference F169... under subsection (2) of section 45, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (3) of that section;

(b)in connection with a reference F169... under subsection (3) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection;

(c)in connection with a reference F169... under subsection (4) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (5) of that section; and

(d)in connection with a reference F169... under subsection (5) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection.

(4)The Secretary of State may make no finding at all in the matter only if he decides that there is no public interest consideration which is relevant to a consideration of the relevant merger situation concerned.

(5)The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the [F170CMA] under section 50.

(6)In making a decision under subsections (2) to (4), the Secretary of State shall disregard any public interest consideration not specified in the reference under section 45 and any public interest consideration disregarded by the [F170CMA] for the purposes of its report.

(7)In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept—

(a)in connection with a reference F171... under section 45(2) or (4), the decision of the report [F172of the CMA] under section 50 as to whether there is an anti-competitive outcome; and

(b)in connection with a reference F171... under section 45(3) or (5)—

(i)the decision of the report [F172of the CMA] under section 50 as to whether a relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and

(ii)the decision of the report of the [F173CMA] under section 44 as to the absence of a substantial lessening of competition.

(8)In determining for the purposes of subsection (5) the period of 30 days no account shall be taken of—

(a)Saturday, Sunday, Good Friday and Christmas Day; and

(b)any day which is a bank holiday in England and Wales.

55 Enforcement action by Secretary of StateU.K.

(1)Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 54 within the period required by subsection (5) of that section to make an adverse public interest finding in relation to a relevant merger situation and has published his decision within the period so required.

(2)The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation concerned.

(3)In making a decision under subsection (2) the Secretary of State shall, in particular, have regard to the report of the [F174CMA] under section 50.

(4)In making a decision under subsection (2) in any case of a substantial lessening of competition, the Secretary of State 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.

OtherU.K.

56 Competition cases where intervention on public interest grounds ceasesU.K.

(1)Where the Secretary of State decides not to make a reference under section 45 on the ground that no public interest consideration to which he is able to have regard is relevant to a consideration of the relevant merger situation concerned, he shall by notice require the [F175CMA] to deal with the matter otherwise than under this Chapter.

(2)Where a notice is given to the [F175CMA] in the circumstances mentioned in subsection (1), the [F175CMA] shall decide whether to make a reference under section 22 or 33; and any time-limits in relation to the Secretary of State’s decision whether to make a reference under section 45 (including any remaining powers of extension) shall apply in relation to the decision of the [F175CMA] whether to make a reference under section 22 or 33.

(3)Where the [F176CMA] cancels under section 53(1) a reference under section 45 and [F177its report] under section 44 contains the decision that it is or may be the case that there is an anti-competitive outcome in relation to the relevant merger situation concerned, the [F176CMA] shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F178....

(4)In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the [F179CMA] shall proceed as if—

(a)the reference under section 22 or 33 had been made at the same time as the reference under section 45;

(b)the timetable for preparing and giving its report under section 50 (including any remaining powers of extension and as extended by an additional period of 20 days) were the timetable for preparing and publishing its report under section 38; and

(c)in relation to the question whether a relevant merger situation has been created or the question whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, the [F179CMA] were confined to the questions on the subject to be investigated by it under section 47.

(5)In determining the period of 20 days mentioned in subsection (4) no account shall be taken of—

(a)Saturday, Sunday, Good Friday and Christmas Day; and

(b)any day which is a bank holiday in England and Wales.

(6)Where the Secretary of State decides under section 54(2) to make no finding at all in the matter in connection with a reference under section 45(2) or (4), the [F180CMA] shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F181... instead of a reference under section 45 and as if its report to the Secretary of State under section 50 had been prepared and published by it under section 38 within the period permitted by section 39.

(7)In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the [F182CMA] as included in its report by virtue of section 35(3) or 36(2) shall be construed as a reference to decisions which were included in the report of the [F182CMA] by virtue of section 47(8).

(8)Where the [F183CMA] becomes under a duty to proceed as mentioned in subsection (3) or (6)[F184

(a)] references in this Part to references under sections 22 and 33 shall, so far as may be necessary, be construed accordingly; and, in particular, sections 77 to 81 shall apply as if a reference has been made F185... under section 22 or (as the case may be) 33[F186; and

(b)for the purposes of section 34C, the group constituted in consequence of the reference under section 45 is to be treated as if it were constituted in consequence of a reference under section 22 or (as the case may be) 33.]

Textual Amendments

57 Duties of [F187CMA and OFCOM] to inform Secretary of StateU.K.

(1)The [F188CMA] shall, in considering whether to make a reference under section 22 or 33, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 58 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.

(2)The [F189CMA and OFCOM] shall bring to the attention of the Secretary of State any representations about exercising his powers under section 58(3) which have been made to the [F190CMA or (as the case may be) OFCOM].

58 Specified considerationsU.K.

(1)The interests of national security are specified in this section.

(2)In subsection (1) “national security” includes public security; and in this subsection “public security” has the same meaning as in article [F19121(4) of the EC Merger Regulation] .

[F192(2A)The need for—

(a)accurate presentation of news; and

(b)free expression of opinion;

in newspapers is specified in this section.

(2B)The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section.

(2C)The following are specified in this section—

(a)the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;

(b)the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and

(c)the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.]

[F193(2D)The interest of maintaining the stability of the UK financial system is specified in this section (other than for the purposes of sections 67 and 68 or references made, or deemed to be made, by the European Commission to the OFT under article 4(4) or 9 of the EC Merger Regulation).]

(3)The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.

(4)An order under this section may, in particular—

(a)provide for a consideration to be specified in this section for a particular purpose or purposes or for all purposes;

(b)apply in relation to cases under consideration by the [F194CMA, OFCOM] or the Secretary of State before the making of the order as well as cases under consideration on or after the making of the order.

Textual Amendments

F192S. 58(2A)-(2C) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 375(1), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F193S. 58(2D) inserted (24.10.2008) (with application in accordance with art. 1(2) of the amending S.I.) by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008 (S.I. 2008/2645), arts. 1(1), 2

[F19558AConstruction of consideration specified in section 58(2C)U.K.

(1)For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting.

(2)In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises.

(3)In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers.

(4)Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards.

(5)For the purposes of section 58, where two or more media enterprises—

(a)would fall to be treated as under common ownership or common control for the purposes of section 26, or

(b)are otherwise in the same ownership or under the same control,

they shall be treated (subject to subsection (4)) as all under the control of only one person.

(6)A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate—

(a)as a reference to any one of the audiences served by that enterprise, taking them separately;

(b)as a reference to all the audiences served by that enterprise, taking them together;

(c)as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or

(d)as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.

(7)The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service—

(a)shall be such as the decision-making authority considers appropriate in the circumstances of the case; and

(b)may allow for persons to be treated as members of an audience if they are only potentially members of it.

(8)In this section “audience” includes readership.

(9)The power under subsection (3) of section 58 to modify that section includes power to modify this section.]

Textual Amendments

F195S. 58A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 375(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

Chapter 3U.K.Other special cases

Special public interest casesU.K.

59 Intervention by Secretary of State in special public interest casesU.K.

(1)Subsection (2) applies where the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

(2)The Secretary of State may give a notice to the [F196CMA] (in this Part “a special intervention notice”) if he believes that it is or may be the case that one or more than one consideration specified in section 58 is relevant to a consideration of the special merger situation concerned.

[F197(3)For the purposes of this Part a special merger situation has been created if—

(a)the condition mentioned in subsection (3A) is satisfied; and

(b)immediately before the enterprises concerned ceased to be distinct—

(i)the conditions mentioned in subsection (3B) were satisfied;

(ii)the condition mentioned in subsection (3C) was satisfied; or

(iii)the condition mentioned in subsection (3D) was satisfied.

(3A)The condition mentioned in this subsection is that—

(a)no relevant merger situation has been created because of section 23(1)(b) and (2)(b); but

(b)a relevant merger situation would have been created if those enactments were disregarded.

(3B)The conditions mentioned in this subsection are that—

(a)at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and

(b)a person carrying on one or more of the enterprises concerned was a relevant government contractor.

(3C)The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on.

(3D)The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.]

(5)For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 [F198to 30] (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).

(6)In their application by virtue of subsection (5) sections 23 [F199to 30] shall have effect as if—

(a)for paragraph (a) of section 23(9) there were substituted—

(a)in relation to the giving of a special intervention notice, the time when the notice is given;

(aa)in relation to the making of a report by the [F200CMA] under section 61, the time of the making of the report;

(ab)in the case of a reference which is treated as having been made under section 62(2) by virtue of section 64(2), such time as the [F201CMA] may determine; and;

(b)the references to the [F200CMA] in section 24(2)(a) and (b) included references to the Secretary of State;

(c)the references to the [F200CMA] in [F202section 25(1) to (3), (6) and (8)] included references to the Secretary of State;

(d)the references to the [F200CMA] in section 25(4) and (5) were references to the Secretary of State;

(e)the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;

(f)the reference in section 25(12) to one extension were a reference to one extension by the [F200CMA] and one extension by the Secretary of State;

(g)the powers to extend time-limits under section 25 as applied by subsection (5) above F203... were not exercisable by the [F200CMA] or the Secretary of State before the giving of a special intervention notice;

F204(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i)in the case of the giving of special intervention notices, the references in sections 23 [F205to 30] to the making of a reference or a reference were, so far as necessary, references to the giving of a special intervention notice or a special intervention notice; F206...

F206(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F207(6A)The Secretary of State may by order amend the conditions mentioned in subsection (3)(b)(ii) and (iii).]

(7)No more than one special intervention notice shall be given under subsection (2) in relation to the same special merger situation.

(8)In this section “relevant government contractor” means—

(a)a government contractor—

(i)who has been notified by or on behalf of the Secretary of State of information, documents or other articles relating to defence and of a confidential nature which the government contractor or an employee of his may hold or receive in connection with being such a contractor; and

(ii)whose notification has not been revoked by or on behalf of the Secretary of State; or

(b)a former government contractor who was so notified when he was a government contractor and whose notification has not been revoked by or on behalf of the Secretary of State.

(9)In this section—

  • defence” has the same meaning as in section 2 of the Official Secrets Act 1989 (c. 6); and

  • government contractor” has the same meaning as in the Act of 1989 and includes any sub-contractor of a government contractor, any sub-contractor of that sub-contractor and any other sub-contractor in a chain of sub-contractors which begins with the sub-contractor of the government contractor.

Textual Amendments

F197S. 59(3)-(3D) substituted (29.12.2003) for s. 59(3)(4) by Communications Act 2003 (c. 21), ss. 378(1), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F207S. 59(6A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 378(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

[F20859AConstruction of conditions in section 59(3C) and (3D)U.K.

(1)For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to—

(a)newspapers of any description, or

(b)broadcasting of any description,

the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.

(2)References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—

(a)as references to any of those forms of supply taken separately;

(b)as references to all those forms of supply taken together; or

(c)as references to any of those forms of supply taken in groups.

(3)For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—

(a)the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b)the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(4)References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate—

(a)as references to any of those forms of provision taken separately;

(b)as references to all those forms of provision taken together; or

(c)as references to any of those forms of provision taken in groups.

(5)For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—

(a)the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b)the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(6)The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.

(7)In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.]

Textual Amendments

F208S. 59A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 378(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

60 Special intervention notices under section 59U.K.

(1)A special intervention notice shall state—

(a)the special merger situation concerned; and

(b)the consideration specified in section 58 or considerations so specified which are, or may be, relevant to the special merger situation concerned.

(2)Where the Secretary of State believes that it is or may be the case that two or more considerations specified in section 58 are relevant to a consideration of the special merger situation concerned, he may decide not to mention in the special intervention notice such of those considerations as he considers appropriate.

(3)A special intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.

(4)For the purposes of this Part, a matter to which a special intervention notice relates is finally determined under this Chapter if—

(a)the time within which the [F209CMA] [F210or (if relevant) OFCOM] is to report to the Secretary of State under section 61 [F211or (as the case may be) 61A] has expired and no such report has been made;

(b)the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 62;

(c)the Secretary of State otherwise decides not to make a reference under that section;

(d)the [F212CMA] cancels such a reference under section 64(1);

(e)the time within which the[F212CMA] is to prepare a report under section 65 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;

(f)the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

(g)the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;

(h)the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or

(i)the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.

(5)For the purposes of this Part the time when a matter to which a special intervention notice relates is finally determined under this Chapter is—

(a)in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;

(b)in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;

(c)in a case falling within subsection (4)(c), (d) or (g), the making of the decision concerned;

(d)in a case falling within subsection (4)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and

(e)in a case falling within subsection (4)(i), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

Textual Amendments

F210Words in s. 60(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 13(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F211Words in s. 60(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 13(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

61 Initial investigation and report by [F213CMA] U.K.

(1)Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.

(2)The [F214CMA] shall, within such period as the Secretary of State may require, give a report to the Secretary of State in relation to the case.

(3)The report shall contain—

(a)advice from the [F214CMA] on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and

(b)a summary of any representations about the case which have been received by the [F214CMA] and which relate to any consideration mentioned in the special intervention notice concerned [F215(other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C))] and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

(4)The report shall include a decision as to whether the [F214CMA] believes (disregarding section [F21659(3B)(b)]) that it is, or may be, the case that a special merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

[F217(4A)The report may, in particular, contain a summary of any representations about the case which have been received by the [F214CMA] and which relate to any consideration which—

(a)is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and

(b)is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.]

(5)The report may, in particular, include advice and recommendations on any consideration mentioned in the special intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

(6)The [F218CMA] shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

Textual Amendments

F215Words in s. 61(3)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F216Words in s. 61(4) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F217S. 61(4A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(4), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

[F21961AAdditional investigation and report by OFCOM: certain media mergersU.K.

(1)Subsection (2) applies where—

(a)the Secretary of State has given a special intervention notice in relation to a special merger situation; and

(b)the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C).

(2)OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.

(3)The report shall contain—

(a)advice and recommendations on any consideration which—

(i)is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and

(ii)is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and

(b)a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

(4)OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.]

Textual Amendments

F219S. 61A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 380, 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

62 Power of Secretary of State to refer the matterU.K.

(1)Subsection (2) applies where the Secretary of State—

(a)has given a special intervention notice in relation to a special merger situation; and

(b)has received a report of the [F220CMA] under section 61[F221, and any report of OFCOM which is required by virtue of section 61A,] in relation to the matter.

(2)The Secretary of State may make a reference [F222to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he believes that it is or may be the case that—

(a)a special merger situation has been created;

(b)one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

(c)taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

(3)The Secretary of State may make a reference [F222to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] if he 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 special merger situation;

(b)one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

(c)taking account only of the relevant consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.

(4)No reference shall be made under this section if the making of the reference is prevented by F223. . . paragraph 4 of Schedule 7.

(5)The Secretary of State, in deciding whether to make a reference under this section, shall accept the decision of the [F224CMA] included in its report under section 61 by virtue of subsection (4) of that section.

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

(a)the subsection of this section under which it is made;

(b)the date on which it is made; and

(c)the consideration or considerations mentioned in the special intervention notice which the Secretary of State believes are, or may be, relevant to a consideration of the special merger situation concerned.

Textual Amendments

F221Words in s. 62(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 14 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F223Words in s. 62(4) 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)

[F22562AFunctions to be exercised by CMA groupsU.K.

Where a reference is made to the chair of the CMA under section 62 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—

(a)sections 63 to 65;

(b)where a reference is treated by virtue of section 64(2) as having been made under section 62(2), section 23(9)(ab) (as it has effect by virtue of section 59(6));

(c)sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;

(d)section 107, so far as relating to anything done on behalf of the CMA by the group;

(e)section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;

(f)sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

(g)section 118(4);

(h)section 120(5)(b), so far as relating to a decision of the group.]

Textual Amendments

Modifications etc. (not altering text)

63 Questions to be decided on references under section 62U.K.

(1)The [F226CMA] shall, on a reference under section 62(2), decide whether a special merger situation has been created.

(2)The [F226CMA] shall, on a reference under section 62(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

(3)If the [F226CMA] decides that a special merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation, it shall, on a reference under section 62, decide whether, taking account only of the consideration or considerations mentioned in the reference, the creation of that situation operates or may be expected to operate against the public interest.

(4)The [F226CMA] shall, if it has decided on a reference under section 62 that the creation of a special merger situation operates or may be expected to operate against the public interest, decide the following additional questions—

(a)whether action should be taken by the Secretary of State under section 66 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned;

(b)whether the [F226CMA] should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned; and

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

Textual Amendments

F226Word in s. 63(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 106 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C31Ss. 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)

64 Cancellation and variation of references under section 62U.K.

(1)The [F227CMA] shall cancel a reference under section 62(3) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.

(2)The [F227CMA] may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section; and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.

(3)Where, by virtue of subsection (2), the [F227CMA] treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section, paragraphs F228... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (3) or (as the case may be) (2) of that section instead of under subsection (2) or (3) of that section.

(4)Subsection (5) applies in relation to F229... any order made under paragraph 2 of [F230Schedule 7], which is in force immediately before the [F227CMA], by virtue of subsection (2), treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section.

(5)The F231... order shall, so far as applicable, continue in force as if—

(a)in the case of an F231... order which relates to a reference under subsection (2) of section 62F232... made in relation to a reference made under subsection (3) of that section; and

(b)in the case of an F231... order which relates to a reference made under subsection (3) of that sectionF232... made in relation to a reference made under subsection (2) of that section;

and the F231... order concerned may be variedF233... or revoked accordingly.

(6)The Secretary of State may at any time vary a reference under section 62.

(7)The Secretary of State shall consult the [F227CMA] before varying any such reference.

(8)Subsection (7) shall not apply if the [F227CMA] has requested the variation concerned.

(9)No variation by the Secretary of State under this section shall be capable of altering the consideration or considerations specified in the reference or the period permitted by virtue of section 65 within which the report of the [F227CMA] under that section is to be prepared and given to the Secretary of State.

65 Investigations and reports on references under section 62U.K.

(1)The [F234CMA] shall prepare a report on a reference under section 62 and give it to the Secretary of State within the period permitted by virtue of this section.

(2)The report shall, in particular, contain—

(a)the decisions of the [F234CMA] on the questions which it is required to answer by virtue of section 63;

(b)its reasons for its decisions; and

(c)such information as the [F234CMA] considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.

[F235(2A)Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the [F234CMA] shall give a copy of its report (whether or not published) to OFCOM.]

(3)Sections 51 and 52 (but not section 53) shall apply for the purposes of a report under this section as they apply for the purposes of a report under section 50.

(4)The [F236CMA] shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.

Textual Amendments

F234Word in s. 65(1)-(2A) (4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 107 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F235S. 65(2A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 15 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

66 Decision and enforcement action by Secretary of StateU.K.

(1)Subsection (2) applies where the Secretary of State has received a report of the [F237CMA] under section 65 in relation to a special merger situation.

(2)The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the [F237CMA] is required to decide by virtue of section 63(1) to (3).

(3)The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the [F237CMA] under section 65; and subsection (8) of section 54 shall apply for the purposes of this subsection as it applies for the purposes of subsection (5) of that section.

(4)In making his decisions under subsection (2), the Secretary of State shall accept the decisions of the report of the [F237CMA] under section 65 as to whether a special merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

(5)Subsection (6) applies where the Secretary of State has decided under subsection (2) that—

(a)a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;

(b)at least one consideration which is mentioned in the special intervention notice concerned is relevant to a consideration of the special merger situation concerned; and

(c)taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest;

and has so decided, and published his decision, within the period required by subsection (3).

(6)The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned.

(7)In making a decision under subsection (6), the Secretary of State shall, in particular, have regard to the report of the [F238CMA] under section 65.

Textual Amendments

European mergersU.K.

67 Intervention to protect legitimate interestsU.K.

(1)Subsection (2) applies where—

(a)the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—

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

(ii)a concentration with a Community dimension (within the meaning of the [F239EC Merger Regulation]), or a part of such a concentration, has thereby arisen or will thereby arise;

(b)a reference F240. . . is prevented from being made under [F241section 22 or 33] in relation to the relevant merger situation concerned [F242(whether or not there would otherwise have been a duty to make such a reference)] by virtue of [F93EU] law or anything done under or in accordance with it; and

(c)the Secretary of State is considering whether to take appropriate measures to protect legitimate interests as permitted by article [F24321(4) of the EC Merger Regulation].

(2)The Secretary of State may give a notice to the [F244CMA] (in this section “a European intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.

(3)A European intervention notice shall state—

(a)the relevant merger situation concerned;

(b)the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and

(c)where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.

(4)Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(5)No more than one European intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.

(6)Where the Secretary of State has given a European intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.

(7)For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 [F245to 30] (read together with section 34) shall apply for the purposes of this section as they do for the purposes of Chapter 1 but subject to subsection (8).

(8)In their application by virtue of subsection (7) sections 23 [F246to 30] shall have effect as if—

(a)references in those sections to the decision-making authority were references to the Secretary of State;

(b)for paragraphs (a) and (b) of section 23(9) there were substituted “ , in relation to the giving of a European intervention notice, the time when the notice is given ”;

(c)the references to the [F244CMA] in section 24(2)(a) and (b) included references to the Secretary of State;

(d)[F247section 25] were omitted; and

(e)the references in sections 23 to 29 to the making of a reference or a reference were, so far as necessary, references to the giving of a European intervention notice or a European intervention notice.

(9)Section 42(3) shall, in its application to this section and section 68, have effect as if for the words “intervention notice” there were substituted “ European intervention notice ”.

Textual Amendments

F240Words in s. 67(1)(b) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406(7), 411(2)(3), Sch. 16 para. 16(a), 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)

F241Words in s. 67(1)(b) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 16(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F242Words in s. 67(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 16(c) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1(subject to arts. 3(3), 11)

68 Scheme for protecting legitimate interestsU.K.

(1)The Secretary of State may by order provide for the taking of action, where a European intervention notice has been given, to remedy, mitigate or prevent effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of a European relevant merger situation.

(2)In subsection (1) “European relevant merger situation” means a relevant merger situation—

(a)which has been created or will be created if arrangements which are in progress or in contemplation are carried into effect;

(b)by virtue of which a concentration with a Community dimension (within the meaning of the [F248EC Merger Regulation]), or a part of such a concentration, has arisen or will arise; and

(c)in relation to which a reference F249. . . was prevented from being made under [F250section 22 or 33 (whether or not there would otherwise have been a duty to make such a reference)] by virtue of [F93EU] law or anything done under or in accordance with it.

(3)Provision made under subsection (1) shall include provision ensuring that considerations which are not public interest considerations mentioned in the European intervention notice concerned may not be taken into account in determining whether anything operates, or may be expected to operate, against the public interest.

(4)Provision made under subsection (1) shall include provision—

(a)applying with modifications sections 23 [F251to 30] for the purposes of deciding for the purposes of this section whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(b)requiring the [F252CMA] to make a report to the Secretary of State before a reference is made;

(c)enabling the Secretary of State to make a reference [F253to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013];

(d)requiring [F254the CMA, acting through a group so constituted,] to investigate and report to the Secretary of State on such a reference;

(e)enabling the taking of interim and final enforcement action.

(5)An order under this section may include provision (including provision for the creation of offences and penalties, the payment of fees and the delegation of functions) corresponding to any provision made in, or in connection with, this Part in relation to intervention notices or special intervention notices and the cases to which they relate.

(6)In this section “European intervention notice” has the same meaning as in section 67.

Textual Amendments

F249Words in s. 68(2)(c) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406(7), 411(2)(3), Sch. 16 para. 17(a), 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)

F250Words in s. 68(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 17(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

OtherU.K.

69 Newspaper mergersU.K.

F255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F255S. 69 repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 374, 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)

70 Water mergersU.K.

(1)For sections 32 to 35 of the Water Industry Act 1991 (c. 56) (special provision for water merger references) there shall be substituted—

32 Duty to refer merger of water or sewerage undertaking

Subject to section 33 below, it shall be the duty of the OFT to make a merger reference to the Competition Commission if the OFT believes that it is or may be the case—

(a)that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises; or

(b)that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) above.

33 Exclusion of small mergers from duty to make reference

(1)The OFT shall not make a merger reference under section 32 above in respect of any actual or prospective merger of two or more water enterprises if it appears to the OFT—

(a)that the value of the turnover of the water enterprise being taken over does not exceed or, as the case may be, would not exceed £10 million; or

(b)that the only water enterprises already belonging to the person making the take over are enterprises each of which has a turnover the value of which does not exceed or, as the case may be, would not exceed £10 million.

(2)For the purposes of subsection (1)(a) above, the value of the turnover of the water enterprise being taken over shall be determined by taking the total value of the turnover of the water enterprises ceasing to be distinct enterprises and deducting—

(a)the turnover of any water enterprise continuing to be carried on under the same ownership and control; or

(b)if there is no water enterprise continuing to be carried on under the same ownership and control, the turnover which, of all the turnovers concerned, is the turnover of the highest value.

(3)For the purposes of subsection (1)(b) above—

(a)every water enterprise ceasing to be a distinct enterprise and whose turnover is to be deducted by virtue of subsection (2)(a) or (b) above shall be treated as a water enterprise belonging to the person making the take over; and

(b)water enterprises shall be treated as separate enterprises so far as they are carried on by different companies holding appointments under Chapter 1 of this Part.

(4)For the purposes of this section the turnover of a water enterprise shall be determined in accordance with such provisions as may be specified in regulations made by the Secretary of State.

(5)Regulations under subsection (4) above may, in particular, make provision as to—

(a)the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover; and

(b)the date or dates by reference to which an enterprise’s turnover is to be determined.

(6)Regulations under subsection (4) above may, in particular, make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (5) above).

(7)The Secretary of State may by regulations amend subsection (1) above so as—

(a)to alter the sum for the time being mentioned in paragraph (a) of that subsection or otherwise to modify the condition set out in that paragraph; or

(b)to alter the sum for the time being mentioned in paragraph (b) of that subsection or otherwise to modify the condition set out in that paragraph.

(8)Regulations under subsection (7) above—

(a)shall not make any modifications in relation to mergers on or before the coming into force of the regulations; and

(b)may, in particular, include supplemental, consequential or transitional provision amending or repealing any provision of this section.

(9)References in this section to enterprises being carried on under the same ownership and control shall be construed in accordance with Part 3 of the 2002 Act.

34 Application of provisions of Enterprise Act 2002

The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises.

35 Construction of merger provisions

(1)In this Chapter (including Schedule 4ZA)—

  • enterprise” has the same meaning as in Part 3 of the 2002 Act; and

  • water enterprise” means an enterprise carried on by a water undertaker.

(2)References in this Chapter (including Schedule 4ZA), in relation to any two or more enterprises, to the merger of those enterprises are references to those enterprises ceasing, within the meaning of Part 3 of the 2002 Act, to be distinct enterprises; and sections 27 and 29 of that Act and any provision made under section 34 of that Act (time at which enterprises cease to be distinct) shall have effect for the purposes of this Chapter (including Schedule 4ZA) as they have effect for the purposes of that Part.

(3)Nothing in sections 32 to 34 above (including Schedule 4ZA) shall prejudice any power of the OFT or the Secretary of State, in a case in which, or to any extent to which, the OFT is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act in respect of any actual or prospective merger of two or more water enterprises.

(4)Where two or more enterprises have merged or will merge as part of transactions or arrangements which also involve an actual or prospective merger of two or more water enterprises, Part 3 of the 2002 Act shall apply in relation to the actual or prospective merger of the enterprises concerned excluding the water enterprises; and references in that Part to the creation of a relevant merger situation shall be construed accordingly.

(5)Subject to subsections (3) and (4), Part 3 of the 2002 Act shall not apply in a case in which the OFT is required to make a reference under section 32 above except as applied by virtue of Schedule 4ZA.

(2)Before Schedule 4A to the Act of 1991 there shall be inserted, as Schedule 4ZA, the Schedule set out in Schedule 6 to this Act.

Chapter 4U.K.Enforcement

Powers exercisable before references under section 22 or 33U.K.

F25671 Initial undertakings: completed mergersU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

72Initial enforcement orders: [F257completed or anticipated mergers] U.K.

[F258(1)Subsection (2) applies where—

(a)the CMA is considering whether to make a reference under section 22 or 33; 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 [F259CMA] may by order, for the purpose of preventing pre-emptive action—

(a)prohibit or restrict the doing of things which the [F259CMA] 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.

F260(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F261(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.]

[F262(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.

F263(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 F264... paragraph 2 of Schedule 7, cease to be in force—

(a)where the [F259CMA] has decided to make the reference concerned under section 22 [F265or 33] [F266

(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 [F259CMA] 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 [F259CMA] has otherwise decided not to make the reference concerned under section 22 [F265or 33], on the making of that decision.

(7)The [F267CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

[F268(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