Part 3Mergers

Chapter 1Duty to make references

Duty to make references: completed mergers

22 Duty to make references in relation to completed mergers

(1)

F1The 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.

F2(1A)

The CMA must 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 has decided, under section 34ZF(2), to accept a fast-track reference request.

(2)

The F3CMA may decide not to make a reference under F4subsection (1) 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 F5...; 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 F6subsection (1) if—

F7(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 F8. . . 74(1) F9... or paragraph 4 of Schedule 7;

(b)

the F10CMA 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 F11...; F12or

(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 F10CMA under section 56(1); F13or

F14(e)

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F15(f)

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F16(3A)

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

(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 F17..., F18the 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, F19the CMA or (as the case may be) the Secretary of State.