Part 3

Mergers
Chapter 2

Public interest cases

Power to make references

Investigation and report by CMA
44
1
Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.
2
The CMA 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 CMA 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 CMA and which relate to any public interest consideration mentioned in the intervention notice concerned (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 CMA 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 ... 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 CMA 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 CMA believes are, or may be, appropriate.
5A
The report may, in particular, contain a summary of any representations about the case which have been received by the
CMA
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 CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
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 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).
Words 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)
S. 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)
S. 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)
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.)
Word in s. 44 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 44(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 44(5)(5A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 44(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Words in s. 44(4)(c) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 44(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(4) (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))
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))
S. 44(10)(10A) substituted for s. 44(10) (with effect in accordance with art. 4 of the amending S.I.) by The Enterprise Act 2002 (Definition of Newspaper) Order 2025 (S.I. 2025/921), arts. 1(2), 2(2)