The Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003

Explanatory Note

(This note is not part of the Order)

Part 2 of this Order provides for fees to be payable in connection with the exercise by the Secretary of State, the OFT and the Competition Commission of their functions relating to completed and anticipated mergers under Part 3 of the Enterprise Act 2002 (“the Act”).

Article 3 provides that fees are payable in the following cases: in respect of a pre-notification of a merger under section 96 of the Act; in respect of a decision by the OFT regarding the creation or possible creation of a relevant merger situation under section 22 or 33 of the Act and in respect of a decision by the Secretary of State regarding the creation or possible creation of a relevant merger situation under section 45 of the Act.

Article 4 specifies certain cases in which fees are not payable, for example, where a fee has already been paid when pre-notifying the merger. Article 5 specifies the amount of fee payable, which is linked to the UK turnover of the enterprise being taken over which is determined in accordance with Part 3 of this Order. Provision is also made as to the persons by whom the fee is payable (Article 6). There is an exemption for acquisitions made by small and medium sized enterprises in Article 7. Provision is made as to the persons to whom fees are payable (Article 8), and the time when fees are payable (Article 9).

Provision is also made for the refund of fees payable in respect of merger pre-notifications where, for example, the notice is rejected because the notified arrangements are, or would result in, a concentration with a Community dimension (within the meaning of Council Regulation (EEC) No. 4064/89 as amended by Council Regulation (EC) No. 1310/97), or where the notified arrangements would not, if carried into effect, result in a relevant merger situation (Article 10).

Part 3 of this Order specifies how the UK turnover of an enterprise is to be determined for the purposes of establishing the fee payable and section 28(2) of the Act in order to establish whether a relevant merger situation under section 23 of the Act has been created.