Part 3Mergers

Chapter 2Public interest cases

Power to make references

44 Investigation and report by F1CMA

(1)

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

(2)

The F2CMA 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 F2CMA 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 F2CMA and which relate to any public interest consideration mentioned in the intervention notice concerned F3(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 F4CMA 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 F5... 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 F6CMA 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 F6CMA believes are, or may be, appropriate.

F7(5A)

The report may, in particular, contain a summary of any representations about the case which have been received by the F6CMA 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 F8CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

F9(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.

F10(10)

In this Part, “newspaper” means a publication which—

(a)

consists of, or includes, news-related material which is subject to editorial control;

(b)

is published on any periodic basis; and

(c)

is connected with the United Kingdom.

(10A)

For the purposes of subsection (10)—

(a)

“news-related material” means—

(i)

news or information about current affairs; or

(ii)

opinion about matters relating to the news or current affairs;

(b)

news-related material contained in a publication is subject to editorial control if the publisher of the publication has editorial or equivalent responsibility for—

(i)

the content of the material (which may include commissioning it);

(ii)

how the material is presented; and

(iii)

the decision to first publish the material;

(c)

a publication is not to be treated as consisting of, or including, news-related material if the news-related material contained in the publication—

(i)

is included only incidentally to the main content of the publication; or

(ii)

relates wholly to a particular pastime, hobby, trade, business, industry or profession;

(d)

“publication” means a publication which is—

(i)

online; or

(ii)

in hard copy,

and references to “publish” or a “publisher” are to be construed accordingly;

(e)

a reference to a publication being published on any periodic basis includes, in relation to an online publication, a reference to it being updated on any periodic or other recurring basis;

(f)

a publication is connected with the United Kingdom if—

(i)

the majority of its readership is in the United Kingdom;

(ii)

the majority of editorial decisions about the publication are taken in the United Kingdom; or

(iii)

the registered or principal office of the publisher of the publication is in the United Kingdom.

(11)

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