Part 3

Mergers
Chapter 4

Enforcement

Powers exercisable before references under section 22, 33, 68B or 68C

Undertakings in lieu of references under section 22(1), 33(1), 68B or 68C
73
1
Subsection (2) applies if the CMA considers that it is under a duty to make a reference under section 22(1) or 33(1) (disregarding the operation of section 22(3)(b) or (as the case may be) 33(3)(b) but taking account of the power of the CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).
2
The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
3
In proceeding under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
3A
Subsection (3B) applies if the CMA considers that it is under a duty to make a reference under section 68B or 68C; and for the purposes of this subsection it must—
a
disregard the operation of section 22(3)(b) or 33(3)(b) (as applied by section 68B or 68C), but
b
take account of its power under section 68B(2) or 68C(2) to decide not to make such a reference.
3B
The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing—
a
the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), or
b
any adverse effect which has or may have resulted from it or may be expected to result from it,
accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
3C
In proceeding under subsection
(3B)
, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the prejudice
and any adverse effects resulting from it
.
3D
Before proceeding under subsection
(3B)
, the CMA must—
a
ask the Gas and Electricity Markets Authority to give its opinion on the effect of the undertakings offered, and
b
consider the Authority’s opinion.
4
In proceeding under subsection (2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
5
An undertaking under this section—
a
shall come into force when accepted;
b
may be varied or superseded by another undertaking; and
c
may be released by the CMA.
6
An undertaking under this section which is in force in relation to a relevant merger situation shall cease to be in force if an order comes into force under section 75 or 76 in relation to that undertaking.
7
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
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. 73(1)-(4)(5)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 113 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 73(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 113 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 73(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 113 (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))
S. 73(3A)-(3D) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 12(3)
Words in s. 73(4) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 12(4)
Words in s. 73 heading substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 12(2)
Words in Pt. 3 Ch. 4 heading substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 10
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)
S. 73(3B) substituted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 7(2)
Words in s. 73(3C) inserted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 7(3)
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. 73 heading substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 11(2); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)
Words in s. 73(1) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 11(3); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)