The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003

Statutory restrictions following reference under article 5

8—(1) Sub-paragraph (2) applies where—

(a)a reference has been made under article 5, and

(b)no undertakings under paragraph 1 are in force in relation to the European relevant merger situation concerned and no orders under paragraph 2 are in force in relation to that situation.

(2) No relevant person shall, without the consent of the Secretary of State, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.

(3) The consent of the Secretary of State under sub-paragraph (2)—

(a)may be general or specific;

(b)may be revoked by the Secretary of State; and

(c)shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

(4) Paragraph (c) of sub-paragraph (3) shall not apply if the Secretary of State considers that publication is not necessary for the purpose mentioned in that paragraph.

(5) Sub-paragraph (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

(a)a United Kingdom national;

(b)a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

(c)a person carrying on business in the United Kingdom.

(6) In this paragraph—

• “company” includes any body corporate;

• “relevant period” means the period beginning with the publication of the decision of the Secretary of State to make the reference concerned and ending when the reference is finally determined;

• “relevant person” means—

  (a)

  any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;

  (b)

  any subsidiary of any person falling within paragraph (a); or

  (c)

  any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and

• “share” means share in the capital of a company, and includes stock.

(7) For the purposes of the definition of “relevant period” in sub-paragraph (6), a reference under article 5 is finally determined if—

(a)the Commission cancels the reference under article 7(1) or article 11(1);

(b)the time within which the Commission is to prepare a report under article 8 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(c)the time within which the Secretary of State is to make and publish a decision under article 12(2) has expired and no such decision has been made and published;

(d)the Secretary of State decides under paragraph (2) of article 12 otherwise than as mentioned in paragraph (6) of that article;

(e)the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

(f)the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(8) For the purposes of the definition of “relevant period” in sub-paragraph (6) above, the time when a reference under article 5 is finally determined is—

(a)in a case falling within sub-paragraph (7)(a) or (d), the making of the decision concerned;

(b)in a case falling within sub-paragraph (7)(b) or (c), the expiry of the time concerned;

(c)in a case falling within sub-paragraph (7)(e), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

(d)in a case falling within sub-paragraph (7)(f) the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(9) Section 79 of the Act shall apply for the purposes of paragraph 7 and this paragraph in relation to a reference under article 5 as it applies for the purposes of sections 77 and 78 in relation to a reference under section 22 or 33 of the Act.

(10) In its application by virtue of sub-paragraph (9) section 79 shall have effect as if—

(a)subsections (1) and (2) were omitted; and

(b)for the reference in subsection (4) to the OFT there were substituted a reference to the Secretary of State.