Part 4Market Studies and Market Investigations

Chapter 2Public interest cases

Intervention notices under section 139(1)

F1140ASection 139(1) intervention notices: Secretary of State's duty to refer

(1)

This section applies where—

(a)

the CMA has prepared a market study report in relation to a matter within the period permitted by section 131B(4);

(b)

an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA would (but for this section) be required to publish the report; and

(c)

the report contains the decision of the CMA that it should make an ordinary reference or a cross-market reference in relation to the matter under section 131.

(2)

This section also applies where—

(a)

the CMA has conducted a consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section;

(b)

the CMA has decided that it should make an ordinary reference or a cross-market reference in relation to the matter concerned under section 131; and

(c)

an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA makes that decision.

(3)

The CMA—

(a)

shall not exercise the power under section 131 to refer the matter;

(b)

in a case falling within subsection (1), shall not publish the market study report under section 131B(4) and shall instead, within the period mentioned in section 131B(4), give the report to the Secretary of State; and

(c)

in a case falling within subsection (2), shall give to the Secretary of State a document containing—

(i)

its decision and the reasons for its decision; and

(ii)

such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision.

(4)

The Secretary of State shall decide whether any public interest consideration which was mentioned in the intervention notice is relevant to the matter in question.

(5)

Where the Secretary of State decides that there is no relevant public interest consideration—

(a)

the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; and

(b)

the reference is to be treated for the purposes of this Part as an ordinary reference or (as the case may be) a cross-market reference made under section 131 in accordance with the requirements imposed by this Part.

(6)

Where the Secretary of State decides that there is one or more than one relevant public interest consideration, the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(7)

The Secretary of State shall specify in a reference made under subsection (6)—

(a)

the relevant public interest consideration or considerations; and

(b)

whether the reference is a restricted PI reference or a full PI reference (as to which, see sections 141 and 141A respectively).

(8)

Where the Secretary of State makes a full PI reference under subsection (6), the reference shall also specify whether the Secretary of State proposes to appoint a public interest expert under section 141B.

(9)

For the purposes of this Part, a reference under subsection (6) is to be treated—

(a)

in a case where the decision of the CMA was that it should make an ordinary reference, as an ordinary reference;

(b)

in a case where the decision of the CMA was that it should make a cross-market reference, as a cross-market reference.

(10)

In a case falling within subsection (1), the Secretary of State shall publish the market study report concerned at the same time as the Secretary of State makes a reference under this section.

(11)

In a case falling within subsection (2), the Secretary of State shall publish the document given to the Secretary of State by the CMA under subsection (3)(c), at the same time as the Secretary of State makes a reference under this section.

(12)

In this Part—

“full PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a full PI reference;

“restricted PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a restricted PI reference.