Part 3

Mergers
Chapter 5

Supplementary

General duties in relation to references

Certain duties of relevant authorities to consult
104
1
Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.
2
The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
3
In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
4
In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
a
any restrictions imposed by any timetable for making the decision; and
b
any need to keep what is proposed, or the reasons for it, confidential.
5
The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
6
In this section—
- “the relevant authority” means the CMA, the Commission or the Secretary of State;
- “relevant decision” means—
  1. in the case of the CMA, any decision by the CMA—
    1. as to whether to make a reference under section 22(1), 33(1) , 68B or 68C or accept undertakings under section 73 instead of making such a reference; or
    2. to vary under section 37 a reference under section 22, 33, 68B or 68C ; or
    3. on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63;
...
  3. in the case of the Secretary of State, any decision by the Secretary of State—
    1. as to whether to make a reference under section 45 or 62; or
    2. to vary under section 49 or (as the case may be) 64 such a reference; and
- “relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.
S. 104 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(l)(12) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))
Pt. 3 (ss. 22-130) modified (20.6.2003) by 1998 c. 41, Sch. 7 para. 20(3) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, {Sch. 11 para. 11(2)-(4)(8)}; S.I. 2003/1397, art. 2(1), Sch. (with art. 8)
Pt. 3 excluded in part (29.9.2008) by The Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008 (S.I. 2008/2546), arts. 1(2), 40
Pt. 3 modified (1.7.2012) by Health and Social Care Act 2012 (c. 7), ss. 79, 306(4); S.I. 2012/1319, art. 2(3)
Pt. 3 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 56; S.I. 2014/416, art. 2(1)(c) (with Sch.)
S. 104 modified by S.I. 2003/1592, art. 5A(d) (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))
Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Words in s. 104(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Words in s. 104(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Pt. 3 modified (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 4 paras. 28-33; 2020 c. 1, Sch. 5 para. 1(1)
Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56A(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(2)(f), 36(2))
Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56E(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(3)(f), 36(2))
Pt. 3 modified (1.7.2022) by 2006 c. 41, s. 72A (as inserted by Health and Care Act 2022 (c. 31), ss. 83(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30))
Words in s. 104(6) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 23
Pt. 3 applied (with modifications) (29.12.2004) by Water Industry Act 1991 (c. 56), Sch. 4ZA paras. 1, 2 (as inserted by Enterprise Act 2002 (c. 40), ss. 70(2), 279, Sch. 6); S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)
Pt. 3 (ss. 22-130) applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17M(4) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
Pt. 3 applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17Q(9) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
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)
Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35 (as amended (1.4.2014) by S.I. 2014/549, art. 1(1), Sch. 1 para. 22 (with art. 3); (18.12.2015) by S.I. 2015/1936, regs. 1, 3-20; (6.12.2023) by S.I. 2023/1185, arts. 1(2), 9-27); and (23.8.2024) by S.I. 2024/840, regs. 1(1), 3-7; and (1.1.2025) by S.I. 2024/1234, regs. 1(1), 3-10 (with reg. 11))
Words in s. 104(6) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 13(a); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)
Words in s. 104(6) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 13(b); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)