C291C303C316C289C290C358Part 3Mergers
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.)
Pt. 3 applied (with modifications) (29.12.2004) by 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 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 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 (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 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35
Pt. 3: amendment to earlier affecting provision S.I. 2004/3202, regs. 2-35 (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 22 (with art. 3)
C316Chapter 1Duty to make references
Duty to make references: completed mergers
22C316 Duty to make references in relation to completed mergers
1
F172The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
a
a relevant merger situation has been created; and
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.
2
The F173CMA may decide not to make a reference under this section if it believes that—
a
the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference F174...; or
b
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
3
No reference shall be made under this section if—
F171za
the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
a
b
the F170CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
c
the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 33;
d
e
the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article F322(1) of the EC Merger Regulation, is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a requestF4; or
f
subject to subsection (3A), a reasoned submission requesting referral to the European Commission has been submitted to the European Commission under article 4(5) of the EC Merger Regulation.
F53A
Subsection (3)(f) shall cease to apply if the F170CMA is informed that a Member State competent to examine the concentration under its national competition law has, within the time permitted by Article 4(5) of the EC Merger Regulation, expressed its disagreement as regards the request to refer the case to the European Commission; and this subsection shall be construed in accordance with that Regulation.
4
A reference under this section shall, in particular, specify—
a
the enactment under which it is made; and
b
the date on which it is made.
5
The references in this section to the creation of a relevant merger situation shall be construed in accordance with section 23, the reference in subsection (2) of this section to relevant customer benefits shall be construed in accordance with section 30 and the reference in subsection (3) of this section to a matter to which a notice under section 42(2) relates being finally determined under Chapter 2 shall be construed in accordance with section 43(4) and (5).
6
In this Part “market in the United Kingdom” includes—
a
so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and
b
any market which operates only in a part of the United Kingdom;
and references to a market for goods or services include references to a market for goods and services.
7
In this Part “the decision-making authority” means—
a
in the case of a reference or possible reference under this section or section 33, F175the CMA; and
b
in the case of a notice or possible notice under section 42(2) or 59(2) or a reference or possible reference under section 45 or 62, F176the CMA or (as the case may be) the Secretary of State.
C36023C316C1 Relevant merger situations
1
For the purposes of this Part, a relevant merger situation has been created if—
a
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and
b
the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million.
2
For the purposes of this Part, a relevant merger situation has also been created if—
a
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and
b
as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent.
3
The condition mentioned in this subsection is that, in relation to the supply of goods of any description, at least one-quarter of all the goods of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom—
a
are supplied by one and the same person or are supplied to one and the same person; or
b
are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.
4
The condition mentioned in this subsection is that, in relation to the supply of services of any description, the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, is to the extent of at least one-quarter—
a
supply by one and the same person, or supply for one and the same person; or
b
supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.
5
For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3) or (4) is fulfilled with respect to goods or (as the case may be) services of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.
6
References in subsections (3) and (4) to the supply of goods or (as the case may be) services shall, in relation to goods or services of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
a
as references to any of those forms of supply taken separately;
b
as references to all those forms of supply taken together; or
c
as references to any of those forms of supply taken in groups.
7
For the purposes of subsection (6) the decision-making authority may treat goods or services as being the subject of different forms of supply whenever—
a
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
b
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
8
The criteria for deciding when goods or services can be treated, for the purposes of this section, as goods or services of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.
9
C362For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—
a
in the case of a reference which is treated as having been made under section 22 by virtue of section 37(2), such time as the F177CMA may determine; and
b
in any other case, immediately before the time when the reference has been, or is to be, made.
C36024C316C2 Time-limits and prior notice
1
For the purposes of section 23 two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within this section if—
a
the two or more enterprises ceased to be distinct enterprises before the day on which the reference relating to them is to be made and did so not more than four months before that day; or
b
notice of material facts about the arrangements or transactions under or in consequence of which the enterprises have ceased to be distinct enterprises has not been given in accordance with subsection (2).
2
Notice of material facts is given in accordance with this subsection if—
a
it is given to the F178CMA prior to the entering into of the arrangements or transactions concerned or the facts are made public prior to the entering into of those arrangements or transactions; or
b
it is given to the F178CMA, or the facts are made public, more than four months before the day on which the reference is to be made.
3
In this section—
“made public” means so publicised as to be generally known or readily ascertainable; and
“notice” includes notice which is not in writing.
C36025C316C3 Extension of time-limits
1
The F133CMA and the persons carrying on the enterprises which have or may have ceased to be distinct enterprises may agree to extend by no more than 20 days the four month period mentioned in section 24(1)(a) or (2)(b).
2
The F133CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it considers that any of those persons F179has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
F1803
An extension under subsection (2) shall come into force when notice of the extension is given and end—
a
when the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
if earlier, the CMA cancels the extension.
4
The F133CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it is seeking undertakings from any of those persons under section 73.
5
An extension under subsection (4) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—
a
the giving of the undertakings concerned;
b
the expiry of the period of 10 days beginning with the first day after the receipt by the F133CMA of a notice from the person who has been given a notice under subsection (4) and from whom the undertakings are being sought stating that he does not intend to give the undertakings; or
c
the cancellation by the F133CMA of the extension.
6
The F133CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article F622(1) of the EC Merger Regulation(but is not yet proceeding with the matter in pursuance of such a request).
7
An extension under subsection (6) shall be for the period beginning with the receipt of the notice under that subsection and ending with the receipt of a notice under subsection (8).
8
The F181CMA shall, in connection with any notice given by it under subsection (6), by notice inform the persons carrying on the enterprises which have or may have ceased to be distinct enterprises of the completion by the European Commission of its consideration of the request of the United Kingdom.
9
Subject to subsections (10) and (11), where the four month period mentioned in section 24(1)(a) or (2)(b) is extended or further extended by virtue of this section in relation to a particular case, any reference to that period in section 24 or the preceding provisions of this section shall have effect in relation to that case as if it were a reference to a period equivalent to the aggregate of the period being extended and the period of the extension (whether or not those periods overlap in time).
10
Subsection (11) applies where—
a
the four month period mentioned in section 24(1)(a) or (2)(b) is further extended;
b
the further extension and at least one previous extension is made under one or more of subsections (2), (4) and (6); and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
11
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (10)(c) shall be disregarded.
12
No more than one extension is possible under subsection (1).
C36026C316C4 Enterprises ceasing to be distinct enterprises
1
For the purposes of this Part any two enterprises cease to be distinct enterprises if they are brought under common ownership or common control (whether or not the business to which either of them formerly belonged continues to be carried on under the same or different ownership or control).
2
Enterprises shall, in particular, be treated as being under common control if they are—
a
enterprises of interconnected bodies corporate;
b
enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or
c
an enterprise carried on by a body corporate and an enterprise carried on by a person or group of persons having control of that body corporate.
3
A person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body corporate, or the policy of any person in carrying on an enterprise but without having a controlling interest in that body corporate or in that enterprise, may, for the purposes of subsections (1) and (2), be treated as having control of it.
4
For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, a person or group of persons may be treated as bringing an enterprise under his or their control if—
a
being already able to control or materially to influence the policy of the person carrying on the enterprise, that person or group of persons acquires a controlling interest in the enterprise or, in the case of an enterprise carried on by a body corporate, acquires a controlling interest in that body corporate; or
b
being already able materially to influence the policy of the person carrying on the enterprise, that person or group of persons becomes able to control that policy.
C6C36027C316C5 Time when enterprises cease to be distinct
1
Subsection (2) applies in relation to any arrangements or transaction—
a
not having immediate effect or having immediate effect only in part; but
b
under or in consequence of which any two enterprises cease to be distinct enterprises.
2
The time when the parties to any such arrangements or transaction become bound to such extent as will result, on effect being given to their obligations, in the enterprises ceasing to be distinct enterprises shall be taken to be the time at which the two enterprises cease to be distinct enterprises.
3
In accordance with subsections (1) and (2) (but without prejudice to the generality of those subsections) for the purpose of determining the time at which any two enterprises cease to be distinct enterprises no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
4
Subsections (1) to (3) are subject to subsections (5) to (8) and section 29.
5
The decision-making authority may, for the purposes of a reference, treat successive events to which this subsection applies as having occurred simultaneously on the date on which the latest of them occurred.
6
Subsection (5) applies to successive events—
a
which occur within a period of two years under or in consequence of the same arrangements or transaction, or successive arrangements or transactions between the same parties or interests; and
b
by virtue of each of which, under or in consequence of the arrangements or the transaction or transactions concerned, any enterprises cease as between themselves to be distinct enterprises.
7
The decision-making authority may, for the purposes of subsections (5) and (6), treat such arrangements or transactions as the decision-making authority considers appropriate as arrangements or transactions between the same interests.
8
In deciding whether it is appropriate to treat arrangements or transactions as arrangements or transactions between the same interests the decision-making authority shall, in particular, have regard to the persons substantially concerned in the arrangements or transactions concerned.
C36028C316C7 Turnover test
1
For the purposes of section 23 the value of the turnover in the United Kingdom of the enterprise being taken over shall be determined by taking the total value of the turnover in the United Kingdom of the enterprises which cease to be distinct enterprises and deducting—
a
the turnover in the United Kingdom of any enterprise which continues to be carried on under the same ownership and control; or
b
if no enterprise continues to be carried on under the same ownership and control, the turnover in the United Kingdom which, of all the turnovers concerned, is the turnover of the highest value.
2
For the purposes of this Part (other than section 121(4)(c)(ii)) the turnover in the United Kingdom of an enterprise shall be determined in accordance with such provisions as may be specified in an order made by the Secretary of State.
3
An order under subsection (2) may, in particular, make provision as to—
a
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
b
the date or dates by reference to which an enterprise’s turnover is to be determined;
c
the connection with the United Kingdom by virtue of which an enterprise’s turnover is turnover in the United Kingdom.
4
An order under subsection (2) may, in particular, make provision enabling the decision-making authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (3)).
5
The F182CMA shall—
a
keep under review the sum for the time being mentioned in section 23(1)(b); and
b
from time to time advise the Secretary of State as to whether the sum is still appropriate.
6
The Secretary of State may by order amend section 23(1)(b) so as to alter the sum for the time being mentioned there.
C9C36029C316C8 Obtaining control by stages
1
Where an enterprise is brought under the control of a person or group of persons in the course of two or more transactions (in this section a “series of transactions”) to which subsection (2) applies, those transactions may, if the decision-making authority considers it appropriate, be treated for the purposes of a reference as having occurred simultaneously on the date on which the latest of them occurred.
2
This subsection applies to—
a
any transaction which—
i
enables that person or group of persons directly or indirectly to control or materially to influence the policy of any person carrying on the enterprise;
ii
enables that person or group of persons to do so to a greater degree; or
iii
is a step (whether direct or indirect) towards enabling that person or group of persons to do so; and
b
any transaction by virtue of which that person or group of persons acquires a controlling interest in the enterprise or, where the enterprise is carried on by a body corporate, in that body corporate.
3
Where a series of transactions includes a transaction falling within subsection (2)(b), any transaction occurring after the occurrence of that transaction is to be disregarded for the purposes of subsection (1).
4
Where the period within which a series of transactions occurs exceeds two years, the transactions that may be treated as mentioned in subsection (1) are any of those transactions that occur within a period of two years.
5
Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of this section to determine—
a
whether an enterprise is brought under the control of a person or group of persons; and
b
whether a transaction is one to which subsection (2) applies;
as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
6
In determining for the purposes of this section the time at which any transaction occurs, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
C36030C316C10 Relevant customer benefits
1
For the purposes of this Part a benefit is a relevant customer benefit if—
a
it is a benefit to relevant customers in the form of—
i
lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets in which the substantial lessening of competition concerned has, or may have, occurred or (as the case may be) may occur); or
ii
greater innovation in relation to such goods or services; and
b
the decision-making authority believes—
i
in the case of a reference or possible reference under section 22 or 45(2), as mentioned in subsection (2); and
ii
in the case of a reference or possible reference under section 33 or 45(4), as mentioned in subsection (3).
2
The belief, in the case of a reference or possible reference under section 22 or section 45(2), is that—
a
the benefit has accrued as a result of the creation of the relevant merger situation concerned or may be expected to accrue within a reasonable period as a result of the creation of that situation; and
b
the benefit was, or is, unlikely to accrue without the creation of that situation or a similar lessening of competition.
3
The belief, in the case of a reference or possible reference under section 33 or 45(4), is that—
a
the benefit may be expected to accrue within a reasonable period as a result of the creation of the relevant merger situation concerned; and
b
the benefit is unlikely to accrue without the creation of that situation or a similar lessening of competition.
4
In subsection (1) “relevant customers” means—
a
customers of any person carrying on an enterprise which, in the creation of the relevant merger situation concerned, has ceased to be, or (as the case may be) will cease to be, a distinct enterprise;
b
customers of such customers; and
c
any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);
and in this subsection “customers” includes future customers.
F18331 Information powers in relation to completed mergers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C36032C316C11 Supplementary provision for purposes of F119section 25
F1341
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1342
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1343
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
In determining for the purposes of section 25(1) or (5)(b) F184... any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of—
a
Saturday, Sunday, Good Friday and Christmas Day; and
b
any day which is a bank holiday in England and Wales.
Duty to make references: anticipated mergers
33C316 Duty to make references in relation to anticipated mergers
1
F188The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
a
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
b
the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
2
The F189CMA may decide not to make a reference under this section if it believes that—
a
the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference F190...;
b
the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference F191...; or
c
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
3
No reference shall be made under this section if—
F187za
the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
a
b
the F186CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
c
the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22;
d
e
the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article F922(1) of the EC Merger Regulation, is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a requestF10; or
f
subject to subsection (3A), a reasoned submission requesting referral to the European Commission has been submitted to the European Commission under article 4(5) of the EC Merger Regulation.
F113A
Section 33(3)(f) shall cease to apply if the F186CMA is informed that a Member State competent to examine the concentration under its national competition law has, within the time permitted by Article 4(5) of the EC Merger Regulation, expressed its disagreement as regards the request to refer the case to the European Commission; and this subsection shall be construed in accordance with that Regulation.
4
A reference under this section shall, in particular, specify—
a
the enactment under which it is made; and
b
the date on which it is made.
34C316 Supplementary provision in relation to anticipated mergers
1
The Secretary of State may by order make such provision as he considers appropriate about the operation of sections 27 and 29 in relation to—
a
references under this Part which relate to arrangements which are in progress or in contemplation; or
b
notices under section 42(2), 59(2) or 67(2) which relate to such arrangements.
2
An order under subsection (1) may, in particular—
a
provide for sections 27(5) to (8) and 29 to apply with modifications in relation to such references or notices or in relation to particular descriptions of such references or notices;
b
enable particular descriptions of events, arrangements or transactions which have already occurred—
i
to be taken into account for the purposes of deciding whether to make such references or such references of a particular description or whether to give such notices or such notices of a particular description;
ii
to be dealt with under such references or such references of a particular description or under such notices or such notices of a particular description.
C31634ZAC316F116Time-limits for decisions about references
1
In carrying out its function of deciding whether to make a reference under section 22 or 33, the CMA shall, within the initial period—
a
decide whether the duty to make a reference under the section applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and
b
inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.
2
Nothing in this section prevents the CMA from making a reference under section 22 or 33 in the event that—
a
it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but
b
no such undertakings are offered or accepted.
3
In this section—
“the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with—
- a
where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and
- b
in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference;
- a
“working day” means any day which is not—
- a
a Saturday, a Sunday, Good Friday or Christmas Day, or
- b
a day which is a bank holiday in England and Wales.
- a
4
For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to—
a
arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or
b
the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.
5
Nothing in this section applies where section 34A(2) or 46A(2) applies (duties where case referred by the European Commission).
C31634ZBC316Extension of time-limits
1
The CMA may extend the initial period mentioned in section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question.
2
In subsection (1), “relevant person” means—
a
any person carrying on any of the enterprises concerned;
b
any person who (whether alone or as a member of a group) owns or has control of any such person; or
c
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
3
For the purposes of subsection (2), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
4
Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days.
5
The CMA may by notice extend the initial period if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(1) of the EC Merger Regulation (but is not yet proceeding with the matter in pursuance of such a request).
6
An extension under subsection (1) or (4) comes into force when published under section 107.
7
An extension under subsection (1) continues in force until—
a
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
the CMA publishes its decision to cancel the extension.
8
An extension under subsection (5) shall be for the period which—
a
begins when notice is given under that subsection, and
b
ends when the CMA gives notice of the completion by the European Commission of its consideration of the request of the United Kingdom.
9
In this section, “working day” has the same meaning as in section 34ZA.
C31634ZCC316Sections 34ZA and 34ZB: supplementary
1
An extension of the period mentioned in section 34ZA(1) may be made under each of subsections (1), (4) or (5) of section 34ZB.
2
No more than one extension is possible under section 34ZB(4).
3
Where a period is extended or further extended under section 34ZB(1), (4) or (5), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
4
Subsection (5) applies where—
a
the period mentioned in section 34ZA(1) is further extended;
b
the further extension and at least one previous extension is made under one or more of subsections (1) and (5) of section 34ZB; and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
5
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
6
The Secretary of State may by order do either or both of the following—
a
amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period;
b
amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period.
7
But no alteration may be made by virtue of subsection (6) which results in—
a
the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or
b
the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.
8
Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
9
In this section, “working day” has the same meaning as in section 34ZA.
F15Cases referred by European Commission under EC Merger Regulation
Ss. 34A, 34B and preceding cross-heading inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(9)
34ADuty of F532CMA where case referred by the European Commission
1
Subsection (2) applies if the European Commission has by a decision referred the whole or part of a case to the F534CMA under Article 4(4) or 9 of the EC Merger Regulation, or is deemed to have taken such a decision, unless an intervention notice is in force in relation to that case.
2
Before the end of the preliminary assessment period, the F535CMA shall—
a
decide whether to make a reference F536... under section 22 or 33; and
b
inform the persons carrying on the enterprises concerned by notice of that decision and of the reasons for it.
3
The F537CMA may, for the purposes of subsection (2), decide not to make a reference on the basis that it is considering whether to seek or accept undertakings under section 73 instead of making a reference; but a decision taken on that basis does not prevent the F537CMA from making a reference under section 22 or 33 in the event of no such undertakings being offered or accepted.
4
In this section—
“the preliminary assessment period” means, subject to subsection (5), the period of 45 working days beginning with the day after the day on which the decision of the European Commission to refer the case is taken (or is deemed to have been taken); and
“working day” means any day which is not—
a
a Saturday;
b
a Sunday; or
c
a day which is a European Commission holiday (as published in the Official Journal of the F112European Union before the beginning of the year in which it occurs).
F5385
The CMA may extend the preliminary assessment period if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.
F5336
An extension under subsection (5) shall come into force when published under section 107.
F5336A
An extension under subsection (5) shall continue in force until—
a
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
the CMA publishes its decision to cancel the extension.
F5397
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F54034BPower to request information in referred cases
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Determination of references
34CC361F135Functions to be exercised by CMA groups
1
Where a reference is made to the chair of the CMA under section 22 or 33 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
a
sections 35 to 41B, except for sections 35(6) and (7), 36(5) and (6) and 37(6);
b
where a reference is treated by virtue of section 37(2) as having been made under section 22, section 23(9)(a);
c
section 76, as it applies in relation to orders under section 83, and sections 77, 78 and 80 to 84;
d
section 87, so far as relating to an enforcement order made on behalf of the CMA by the group;
e
sections 92(4), 94 and 94A, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
f
section 104, so far as relating to a decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section;
g
section 107, so far as relating to anything done on behalf of the CMA by the group;
h
section 109, where the permitted purpose in question relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
i
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
j
section 120(5)(b), so far as relating to a decision of the group;
k
Schedule 10, so far as relating to an enforcement undertaking or enforcement order which the group is considering accepting or making, or which the group has accepted or made, on behalf of the CMA.
2
The functions of the CMA under section 95(4) in relation to the matter concerned may be carried out on behalf of the CMA by the group.
3
Nothing in subsection (1) prevents the CMA Board from exercising a function of the CMA under or by virtue of the following provisions of this Part where the group constituted as mentioned in subsection (1) has ceased to exist—
a
section 76 and Schedule 10, so far as relating to the making of an order under section 76 in relation to an order under section 83;
b
section 83 and Schedule 10, so far as relating to the making of an order under section 83;
c
sections 76 (as it applies in relation to an order under section 83), 80 to 84 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
d
section 87;
e
sections 92(4) and 94.
C1235C316 Questions to be decided in relation to completed mergers
1
Subject to subsections (6) and (7) and section 127(3), the F192CMA shall, on a reference under section 22, decide the following questions—
a
whether a relevant merger situation has been created; and
b
if so, whether 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.
2
For the purposes of this Part there is an anti-competitive outcome if—
a
a relevant merger situation has been created and 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; or
b
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation and the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
3
The F136CMA shall, if it has decided on a reference under section 22 that there is an anti-competitive outcome (within the meaning given by subsection (2)(a)), decide the following additional questions—
a
whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
b
whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
c
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
4
In deciding the questions mentioned in subsection (3) the F136CMA 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.
5
In deciding the questions mentioned in subsection (3) the F136CMA 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.
6
In relation to the question whether a relevant merger situation has been created, a reference under section 22 may be framed so as to require the F136CMA to exclude from consideration—
a
subsection (1) of section 23;
b
subsection (2) of that section; or
c
one of those subsections if the F136CMA finds that the other is satisfied.
7
In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen, a reference under section 22 may be framed so as to require the F136CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
C1336C316 Questions to be decided in relation to anticipated mergers
1
Subject to subsections (5) and (6) and section 127(3), the F137CMA shall, on a reference under section 33, decide the following questions—
a
whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
b
if so, whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
2
The F137CMA shall, if it has decided on a reference under section 33 that there is an anti-competitive outcome (within the meaning given by section 35(2)(b)), decide the following additional questions—
C14a
whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition;
C14b
whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition; and
c
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
3
In deciding the questions mentioned in subsection (2) the F137CMA 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.
4
In deciding the questions mentioned in subsection (2) the F137CMA 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
In relation to the question whether a relevant merger situation will be created, a reference under section 33 may be framed so as to require the F137CMA to exclude from consideration—
a
subsection (1) of section 23;
b
subsection (2) of that section; or
c
one of those subsections if the F137CMA finds that the other is satisfied.
6
In relation to the question whether any such result as is mentioned in section 23(2)(b) will arise, a reference under section 33 may be framed so as to require the F137CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
37C316 Cancellation and variation of references under section 22 or 33
1
The F138CMA shall cancel a reference under section 33 if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.
2
The F138CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22; and, in such cases, references in this Part to references under those sections shall, so far as may be necessary, be construed accordingly.
3
Where, by virtue of subsection (2), the F138CMA treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22, sections 77 to 81 shall, in particular, apply as if the reference had been made under section 33 or (as the case may be) 22 instead of under section 22 or 33.
4
Subsection (5) applies in relation to any undertaking accepted under section 80, or any order made under section 81, which is in force immediately before the F138CMA, by virtue of subsection (2), treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22.
5
The undertaking or order shall, so far as applicable, continue in force as if—
a
in the case of an undertaking or order which relates to a reference made under section 22, accepted or made in relation to a reference made under section 33; and
b
in the case of an undertaking or order which relates to a reference made under section 33, accepted or made in relation to a reference made under section 22;
and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.
6
The F193CMA may at any time vary a reference under section 22 or 33.
F1947
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1948
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
38C316 Investigations and reports on references under section 22 or 33
1
The F139CMA shall prepare and publish a report on a reference under section 22 or 33 within the period permitted by section 39.
2
The report shall, in particular, contain—
a
the decisions of the F139CMA on the questions which it is required to answer by virtue of section 35 or (as the case may be) 36;
b
its reasons for its decisions; and
c
such information as the F139CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
3
The F139CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
F5314
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39C316 Time-limits for investigations and reports
1
The F198CMA shall prepare and publish its report under section 38 within the period of 24 weeks beginning with the date of the reference concerned.
2
F12Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 22 or 33, the Commission shall prepare and publish its report under section 38—
a
within the period of 24 weeks beginning with the date of the reference; or
b
if it is a shorter period, within such period as is necessary to ensure compliance with that article.
3
The F198CMA may extend, by no more than 8 weeks, the period within which a report under section 38 is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.
4
The F199CMA may extend the period within which a report under section 38 is to be prepared and published if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
5
In F200this section “relevant person” means—
a
any person carrying on any of the enterprises concerned;
b
any person who (whether alone or as a member of a group) owns or has control of any such person; or
c
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
6
For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
7
An extension under subsection (3) or (4) shall come into force when published under section 107.
8
An extension under subsection (4) shall continue in force until—
a
b
the F199CMA publishes its decision to cancel the extension.
F1978A
In the case of a report on a reference under section 33, the CMA may provide that a specified period of no more than 3 weeks is to be disregarded for the purposes of any time-limit for the preparation and publication of the report which applies by virtue of this section if—
a
a relevant person has so requested before the end of the period of 3 weeks beginning with the date of the reference concerned; and
b
the CMA reasonably believes that the arrangements in question might be abandoned.
8B
If the CMA exercises the power under subsection (8A), the CMA shall publish a notice to that effect.
9
References in this Part to the date of a reference shall be construed as references to the date specified in the reference as the date on which it is made.
10
This section is subject to section 40.
40C316 Section 39: supplementary
1
F13No extension is possible under subsection (3) or (4) of section 39 where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(b) of that section.
2
F13Where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(a) of section 39, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.
3
A period extended under subsection (3) of section 39 may also be extended under subsection (4) of that section and a period extended under subsection (4) of that section may also be extended under subsection (3) of that section.
4
No more than one extension is possible under section 39(3).
5
Where a period within which a report under section 38 is to be prepared and published is extended or further extended under section 39(3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
6
Subsection (7) applies where—
a
the period within which the report under section 38 is to be prepared and published is further extended;
b
the further extension and at least one previous extension is made under section 39(4); and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
7
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
8
The Secretary of State may by order amend section 39 so as to alter any one or more of the following periods—
a
the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
b
F13the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;
c
the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.
9
No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1)
F14or (2)(a) of section 39 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.
10
An order under subsection (8) shall not affect any period of time within which the F201CMA is under a duty to prepare and publish its report under section 38 in relation to a reference under section 22 or 33 if the F201CMA is already under that duty in relation to that reference when the order is made.
11
Before making an order under subsection (8) the Secretary of State shall consult the F201CMA and such other persons as he considers appropriate.
12
The Secretary of State may make regulations for the purposes of section 39(8).
13
The regulations may, in particular—
a
provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the F202CMA for the purposes of section 39(8));
b
provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the F202CMA for the purposes of section 39(8));
c
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the fact that—
i
the F202CMA is satisfied as to the provision of the information or documents required by it; or
ii
the person concerned has appeared as a witness in accordance with the requirements of the F202CMA;
d
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the time at which the F202CMA is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.
41C316 Duty to remedy effects of completed or anticipated mergers
1
Subsection (2) applies where a report of the F140CMA has been prepared and published under section 38 within the period permitted by section 39 and contains the decision that there is an anti-competitive outcome.
2
The F140CMA shall take such action under section 82 or 84 as it considers to be reasonable and practicable—
a
to remedy, mitigate or prevent the substantial lessening of competition concerned; and
b
to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition.
3
The decision of the F140CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) or (as the case may be) 36(2) unless there has been a material change of circumstances since the preparation of the report or the F140CMA otherwise has a special reason for deciding differently.
4
In making a decision under subsection (2), the F140CMA 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.
5
In making a decision under subsection (2), the F140CMA 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.
C31641AC316F117Time-limit for discharging duty under section 41
1
The CMA shall discharge its duty under section 41(2) within the period of 12 weeks beginning with the date on which it publishes the report concerned under section 38.
2
The CMA may extend, by no more than 6 weeks, the period within which its duty under section 41(2) shall be discharged if it considers that there are special reasons for doing so.
3
The CMA may extend the period within which its duty under section 41(2) shall be discharged if it considers that a relevant person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109 which is given in relation to the reference.
4
In subsection (3), “relevant person” means—
a
any person carrying on any of the enterprises concerned;
b
any person who (whether alone or as a member of a group) owns or has control of any such person; or
c
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
5
For the purposes of subsection (4), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
6
An extension under subsection (2) or (3) comes into force when published under section 107.
7
An extension under subsection (3) continues in force until—
a
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
the CMA publishes its decision to cancel the extension.
C31641BC316Section 41A: supplementary
1
A period extended under section 41A(2) may also be extended under section 41A(3), and a period extended under section 41A(3) may also be extended under section 41A(2).
2
No more than one extension is possible under section 41A(2).
3
Where a period is extended or further extended under section 41A(2) or (3), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
4
Subsection (5) applies where—
a
the period within which the CMA must discharge its duty under section 41(2) is further extended;
b
the further extension and at least one previous extension is made under section 41A(3); and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
5
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
6
The Secretary of State may by order amend section 41A so as to alter either or both of the following periods—
a
the period of 12 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
b
the period of 6 weeks mentioned in subsection (2) of that section or any period for the time being mentioned in that subsection in substitution for that period.
7
But no alteration may be made by virtue of subsection (6) which results in—
a
the period for the time being mentioned in section 41A(1) exceeding 12 weeks; or
b
the period for the time being mentioned in section 41A(2) exceeding 6 weeks.
8
Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
Chapter 2Public interest cases
Power to make references
42 Intervention by Secretary of State in certain public interest cases
1
Subsection (2) applies where—
a
the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
b
no reference under section 22 or 33 has been made in relation to the relevant merger situation concerned;
c
no decision has been made not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33 or a decision to accept undertakings under section 73 instead of making such a reference); and
2
The Secretary of State may give a notice to the F205CMA (in this Part “an intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.
3
For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 58 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.
4
No more than one intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.
5
For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 F206to 30 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).
6
In their application by virtue of subsection (5) sections 23 F209to 30 shall have effect as if—
a
for paragraph (a) of section 23(9) there were substituted—
a
in relation to the giving of an intervention notice, the time when the notice is given;
aa
in relation to the making of a report by the F207CMA under section 44, the time of the making of the report;
ab
in the case of a reference which is treated as having been made under section 45(2) or (3) by virtue of section 49(1), such time as the F208CMA may determine; and
b
c
the references to the F207CMA in section 25(4) and (5) were references to the Secretary of State;
d
the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;
e
after section 25(5) there were inserted—
5A
The Secretary of State may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if, by virtue of section 46(5) or paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.
5B
An extension under subsection (5A) shall be for the period of the delay.
f
in section 25(10)(b) after the word “(4)” there were inserted “
, (5A)
”
;
g
the reference in section 25(12) to one extension were a reference to one extension by the F207CMA and one extension by the Secretary of State;
h
the powers to extend time-limits under section 25 as applied by subsection (5) above F211... were not exercisable by the F207CMA or the Secretary of State before the giving of an intervention notice but the existing time-limits F212by virtue of section 24 (as so applied) in relation to possible references under section 22 or 33 were applicable for the purposes of the giving of that notice;
i
the existing time-limits F213by virtue of section 24 (as so applied) in relation to possible references under section 22 or 33 (except for extensions under section 25(4)) remained applicable on and after the giving of an intervention notice as if any extensions were made under section 25 as applied by subsection (5) above but subject to further alteration by the F207CMA or the Secretary of State under section 25 as so applied;
F214j
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
k
F216l
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
8
For the purposes of this Part a public interest consideration is finalised if—
a
it is specified in section 58 otherwise than by virtue of an order under subsection (3) of that section; or
b
it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (7) of section 124 and within the period mentioned in that subsection.
43 Intervention notices under section 42
1
An intervention notice shall state—
a
the relevant merger situation concerned;
b
the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and
c
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
2
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
3
An intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
4
For the purposes of this Part, a matter to which an intervention notice relates is finally determined under this Chapter if—
a
b
the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 45;
c
the Secretary of State otherwise decides not to make a reference under that section;
d
the F218CMA cancels such a reference under section 48(1) or 53(1);
e
the time within which the F218CMA is to prepare a report under section 50 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
f
the time within which the Secretary of State is to make and publish a decision under section 54(2) has expired and no such decision has been made and published;
g
the Secretary of State decides under section 54(2) to make no finding at all in the matter;
h
the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;
i
the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
j
the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
5
For the purposes of this Part the time when a matter to which an intervention notice relates is finally determined under this Chapter is—
a
in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
b
in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
c
in a case falling within subsection (4)(c), (d), (g) or (h), the making of the decision concerned;
d
in a case falling within subsection (4)(i), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
e
in a case falling within subsection (4)(j), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
F186
In this Part “OFCOM” means the Office of Communications.
44 Investigation and report by F121CMA
1
Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.
2
The F219CMA 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 F219CMA 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 F219CMA and which relate to any public interest consideration mentioned in the intervention notice concerned F19(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 F221CMA 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 F222... 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 F220CMA 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 F220CMA believes are, or may be, appropriate.
F205A
The report may, in particular, contain a summary of any representations about the case which have been received by the F220CMA 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 F223CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
F218
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 daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom.
11
The Secretary of State may by order amend subsections (9) and (10).
44AF28Additional investigation and report by OFCOM: media mergers
1
Subsection (2) applies where—
a
the Secretary of State has given an intervention notice in relation to a relevant merger situation; and
b
the intervention notice mentions any media public interest consideration.
2
OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.
3
The report shall contain—
a
advice and recommendations on 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; and
b
a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.
4
OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.
45 Power of Secretary of State to refer matter to F122CMA
1
Subsections (2) to (5) apply where the Secretary of State—
a
has given an intervention notice in relation to a relevant merger situation; and
2
The Secretary of State may make a reference F141to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
a relevant merger situation has been created;
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
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
d
taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
3
The Secretary of State may make a reference F141to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
a relevant merger situation has been created;
b
the creation of that situation has not resulted, and may be expected not to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
c
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
d
taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
4
The Secretary of State may make a reference F141to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
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 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
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
d
taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.
5
The Secretary of State may make a reference F141to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
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 may be expected not to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
c
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
d
taking account only of the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.
6
For the purposes of this Chapter any anti-competitive outcome shall be treated as being adverse to the public interest unless it is justified by one or more than one public interest consideration which is relevant.
7
This section is subject to section 46.
46 References under section 45: supplementary
1
No reference shall be made under section 45 if—
a
b
the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article F2522(1) of the EC Merger Regulation, is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a request.F26; or
c
subject to subsection (1A), a reasoned submission requesting referral to the European Commission has been submitted to the European Commission under article 4(5) of the EC Merger Regulation.
F271A
Subsection (1)(c) shall cease to apply if the Secretary of State is informed that a Member State competent to examine the concentration under its national competition law has, within the time permitted by Article 4(5) of the EC Merger Regulation, expressed its disagreement as regards the request to refer the case to the European Commission; and this subsection shall be construed in accordance with that Regulation.
2
The Secretary of State, in deciding whether to make a reference under section 45, shall accept the decisions of the F226CMA included in its report by virtue of subsection (4) of section 44 and any descriptions of undertakings as mentioned in subsection (5) of that section.
3
Where the decision to make a reference under section 45 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised before the end of that period.
4
Subject to subsection (5), where the decision to make a reference under section 45(2) or (4) is made at any time before the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised if its effect would be to prevent, or to help to prevent, an anti-competitive outcome from being adverse to the public interest.
5
The Secretary of State may, if he believes that there is a realistic prospect of the public interest consideration mentioned in subsection (4) being finalised within the period of 24 weeks beginning with the giving of the intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.
6
A reference under section 45 shall, in particular, specify—
a
the subsection of that section under which it is made;
b
the date on which it is made; and
c
the public interest consideration or considerations mentioned in the intervention notice concerned which the Secretary of State is not under a duty to disregard by virtue of subsection (3) above and which he believes are or may be relevant to a consideration of the relevant merger situation concerned.
F39Cases referred by European Commission under the EC Merger Regulation
Ss. 46A-46C and cross-heading inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(15)
46ACases referred by the European Commission where intervention notice is in force
1
Subsection (2) applies if the European Commission has by a decision referred the whole or part of a case to the F541CMA under Article 4(4) or 9 of the EC Merger Regulation, or is deemed to have taken such a decision, and an intervention notice is in force in relation to that case.
2
Before the end of the preliminary assessment period, the Secretary of State shall—
a
decide whether to make a reference F542... under section 45; and
b
inform the persons carrying on the enterprises concerned by notice of that decision and of the reasons for it.
3
The Secretary of State may, for the purposes of subsection (2), decide not to make a reference on the basis that he is considering whether to seek or accept undertakings under paragraph 3 of Schedule 7 instead of making a reference; but a decision taken on that basis does not prevent the Secretary of State from making a reference under section 45 in the event of no such undertakings being offered or accepted.
4
In this section—
“the preliminary assessment period” means, subject to section 46B, the period of 45 working days beginning with the day after the day on which the decision of the European Commission to refer the case is taken (or is deemed to have been taken); and
“working day” means any day which is not—
- a
a Saturday;
- b
a Sunday; or
- c
a day which is a European Commission holiday (as published in the Official Journal of the F112European Union before the beginning of the year in which it occurs).
- a
46BExtension of preliminary assessment period
F5441
The CMA may extend the preliminary assessment period for the purposes of section 46A if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.
F5452
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5433
An extension under subsection (1) shall come into force when published under section 107.
3A
An extension under subsection (1) shall continue in force until—
a
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
the CMA publishes its decision to cancel the extension.
F5464
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F54746CPower to request information in referred cases
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reports on references
46DC363F142Functions to be exercised by CMA groups
Where a reference is made to the chair of the CMA under section 45 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
a
sections 47 to 53;
b
where a reference is treated by virtue of section 49(1) as having been made under section 45(2) or (3), section 23(9)(ab) (as it has effect by virtue of section 42(6));
c
sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;
d
section 107, so far as relating to anything done on behalf of the CMA by the group;
e
section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
f
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
g
section 118(4);
h
section 120(5)(b), so far as relating to a decision of the group.
C1547 Questions to be decided on references under section 45
1
The F143CMA shall, on a reference under section 45(2) or (3), decide whether a relevant merger situation has been created.
2
If the F143CMA decides that such a situation has been created, it shall, on a reference under section 45(2), decide the following additional questions—
a
whether 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; and
b
whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
3
If the F143CMA decides that a relevant merger situation has been created, it shall, on a reference under section 45(3), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
4
The F143CMA shall, on a reference under section 45(4) or (5), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation.
5
If the F143CMA decides that such arrangements are in progress or in contemplation, it shall, on a reference under section 45(4), decide the following additional questions—
a
whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and
b
whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
6
If the F143CMA decides that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, it shall, on a reference under section 45(5), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
7
The F143CMA shall, if it has decided on a reference under section 45 that the creation of a relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions—
a
whether action should be taken by the Secretary of State under section 55 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation;
b
whether the F143CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation; and
c
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
8
Where the F143CMA has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition within any market or markets in the United Kingdom for goods or services, it shall also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 56(6))—
a
whether action should be taken by it under section 41 for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
b
whether the F143CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
c
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
9
In deciding the questions mentioned in subsections (7) and (8) the F143CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
a
the adverse effects to the public interest; or
b
(as the case may be) the substantial lessening of competition and any adverse effects resulting from it.
10
In deciding the questions mentioned in subsections (7) and (8) in a case where it has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition, the F143CMA 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.
11
In this section “admissible public interest consideration” means any public interest consideration which is specified in the reference under section 45 and which the F143CMA is not under a duty to disregard.
48 Cases where references or certain questions need not be decided
1
The F144CMA shall cancel a reference under section 45(4) or (5) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.
2
In relation to the question whether a relevant merger situation has been created or the question whether a relevant merger situation will be created, a reference under section 45 may be framed so as to require the F144CMA to exclude from consideration—
a
subsection (1) of section 23;
b
subsection (2) of that section; or
c
one of those subsections if the F144CMA finds that the other is satisfied.
3
In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen or the question whether any such result will arise, a reference under section 45 may be framed so as to require the F144CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
49 Variation of references under section 45
1
The F145CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat—
a
a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
b
a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.
2
Where, by virtue of subsection (1), the F145CMA treats a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section, paragraphs F227... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (4) or (as the case may be) (5) of that section instead of under subsection (2) or (3) of that section.
3
Where, by virtue of subsection (1), the F145CMA treats a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section, paragraphs F228... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (2) or (as the case may be) (3) of that section instead of under subsection (4) or (5) of that section.
4
5
The F231... order shall, so far as applicable, continue in force as if—
a
b
6
The Secretary of State may at any time vary a reference under section 45.
7
The Secretary of State shall consult the F145CMA before varying any such reference.
8
Subsection (7) shall not apply if the F145CMA has requested the variation concerned.
9
No variation by the Secretary of State under this section shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by section 51 within which the report of the F145CMA under section 50 is to be prepared and given to the Secretary of State.
50 Investigations and reports on references under section 45
1
The F146CMA shall prepare a report on a reference under section 45 and give it to the Secretary of State within the period permitted by section 51.
2
The report shall, in particular, contain—
a
the decisions of the F146CMA on the questions which it is required to answer by virtue of section 47;
b
its reasons for its decisions; and
c
such information as the F146CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
F292A
Where the report relates to a reference under section 45 which has been made after a report of OFCOM under section 44A, the F146CMA shall give a copy of its report (whether or not published) to OFCOM.
3
The F146CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.
51 Time-limits for investigations and reports by F123CMA
1
The F147CMA shall prepare its report under section 50 and give it to the Secretary of State under that section within the period of 24 weeks beginning with the date of the reference concerned.
2
F30Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the F147CMA shall prepare its report under section 50 and give it to the Secretary of State—
a
within the period of 24 weeks beginning with the date of the reference; or
b
if it is a shorter period, within such period as is necessary to ensure compliance with that article.
3
The F147CMA may extend, by no more than 8 weeks, the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.
4
The F147CMA may extend the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
5
In subsection (4) “relevant person” means—
a
any person carrying on any of the enterprises concerned;
b
any person who (whether alone or as a member of a group) owns or has control of any such person; or
c
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
6
For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
7
An extension under subsection (3) or (4) shall come into force when published under section 107.
8
An extension under subsection (4) shall continue in force until—
a
b
the F234CMA publishes its decision to cancel the extension.
9
This section is subject to sections 52 and 53.
52 Section 51: supplementary
1
F31No extension is possible under subsection (3) or (4) of section 51 where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(b) of that section.
2
F31Where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(a) of section 51, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.
3
A period extended under subsection (3) of section 51 may also be extended under subsection (4) of that section and a period extended under subsection (4) of that section may also be extended under subsection (3) of that section.
4
No more than one extension is possible under section 51(3).
5
Where a period within which a report under section 50 is to be prepared and given to the Secretary of State is extended or further extended under section 51(3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
6
Subsection (7) applies where—
a
the period within which the report under section 50 is to be prepared and given to the Secretary of State is further extended;
b
the further extension and at least one previous extension is made under section 51(4); and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
7
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
8
The Secretary of State may by order amend section 51 so as to alter any one or more of the following periods—
a
the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
b
F31the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;
c
the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.
9
No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1)
F32or (2)(a) of section 51 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.
10
An order under subsection (8) shall not affect any period of time within which the F235CMA is under a duty to prepare and give to the Secretary of State its report under section 50 in relation to a reference under section 45 if the F235CMA is already under that duty in relation to that reference when the order is made.
11
Before making an order under subsection (8) the Secretary of State shall consult the F235CMA and such other persons as he considers appropriate.
12
The Secretary of State may make regulations for the purposes of section 51(8).
13
The regulations may, in particular—
a
provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the F236CMA for the purposes of section 51(8));
b
provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the F236CMA for the purposes of section 51(8));
c
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the fact that—
i
the F236CMA is satisfied as to the provision of the information or documents required by it; or
ii
the person concerned has appeared as a witness in accordance with the requirements of the F236CMA;
d
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the time at which the F236CMA is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.
53 Restrictions on action where public interest considerations not finalised
1
The F258CMA shall cancel a reference under section 45 if—
a
the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;
b
no other public interest consideration is mentioned in the notice;
c
at least 24 weeks has elapsed since the giving of the notice; and
d
the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks.
2
Where a reference F256... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the F257CMA shall not give its report to the Secretary of State under section 50 in relation to that reference unless—
a
the period of 24 weeks beginning with the giving of the intervention notice concerned has expired; F33or
b
the public interest consideration concerned has been finalised; F34or
c
F35the report must be given to the Secretary of State to ensure compliance with article 9(6) of the European Merger Regulations.
3
The F148CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which has not been finalised before the giving of the report.
4
The F148CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.
5
Subsections (1) to (4) are without prejudice to the power of the F148CMA to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.
Decisions of the Secretary of State
54 Decision of Secretary of State in public interest cases
1
Subsection (2) applies where the Secretary of State has received a report of the F237CMA under section 50 in relation to a relevant merger situation.
2
The Secretary of State shall decide whether to make an adverse public interest finding in relation to the relevant merger situation and whether to make no finding at all in the matter.
3
For the purposes of this Part the Secretary of State makes an adverse public interest finding in relation to a relevant merger situation if, in relation to that situation, he decides—
a
in connection with a reference F238... under subsection (2) of section 45, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (3) of that section;
b
in connection with a reference F238... under subsection (3) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection;
c
in connection with a reference F238... under subsection (4) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (5) of that section; and
d
in connection with a reference F238... under subsection (5) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection.
4
The Secretary of State may make no finding at all in the matter only if he decides that there is no public interest consideration which is relevant to a consideration of the relevant merger situation concerned.
5
The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the F239CMA under section 50.
6
In making a decision under subsections (2) to (4), the Secretary of State shall disregard any public interest consideration not specified in the reference under section 45 and any public interest consideration disregarded by the F239CMA for the purposes of its report.
7
In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept—
a
b
in connection with a reference F240... under section 45(3) or (5)—
i
the decision of the report F241of the CMA under section 50 as to whether a relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
ii
the decision of the report of the F242CMA under section 44 as to the absence of a substantial lessening of competition.
8
In determining for the purposes of subsection (5) the period of 30 days no account shall be taken of—
a
Saturday, Sunday, Good Friday and Christmas Day; and
b
any day which is a bank holiday in England and Wales.
55 Enforcement action by Secretary of State
1
Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 54 within the period required by subsection (5) of that section to make an adverse public interest finding in relation to a relevant merger situation and has published his decision within the period so required.
2
The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation concerned.
3
In making a decision under subsection (2) the Secretary of State shall, in particular, have regard to the report of the F243CMA under section 50.
4
In making a decision under subsection (2) in any case of a substantial lessening of competition, the Secretary of State 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.
Other
56 Competition cases where intervention on public interest grounds ceases
1
Where the Secretary of State decides not to make a reference under section 45 on the ground that no public interest consideration to which he is able to have regard is relevant to a consideration of the relevant merger situation concerned, he shall by notice require the F244CMA to deal with the matter otherwise than under this Chapter.
2
Where a notice is given to the F244CMA in the circumstances mentioned in subsection (1), the F244CMA shall decide whether to make a reference under section 22 or 33; and any time-limits in relation to the Secretary of State’s decision whether to make a reference under section 45 (including any remaining powers of extension) shall apply in relation to the decision of the F244CMA whether to make a reference under section 22 or 33.
3
Where the F245CMA cancels under section 53(1) a reference under section 45 and F246its report under section 44 contains the decision that it is or may be the case that there is an anti-competitive outcome in relation to the relevant merger situation concerned, the F245CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F247....
4
In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the F248CMA shall proceed as if—
a
the reference under section 22 or 33 had been made at the same time as the reference under section 45;
b
the timetable for preparing and giving its report under section 50 (including any remaining powers of extension and as extended by an additional period of 20 days) were the timetable for preparing and publishing its report under section 38; and
c
in relation to the question whether a relevant merger situation has been created or the question whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, the F248CMA were confined to the questions on the subject to be investigated by it under section 47.
5
In determining the period of 20 days mentioned in subsection (4) no account shall be taken of—
a
Saturday, Sunday, Good Friday and Christmas Day; and
b
any day which is a bank holiday in England and Wales.
6
Where the Secretary of State decides under section 54(2) to make no finding at all in the matter in connection with a reference under section 45(2) or (4), the F249CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F250... instead of a reference under section 45 and as if its report to the Secretary of State under section 50 had been prepared and published by it under section 38 within the period permitted by section 39.
7
In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the F251CMA as included in its report by virtue of section 35(3) or 36(2) shall be construed as a reference to decisions which were included in the report of the F251CMA by virtue of section 47(8).
8
a
b
for the purposes of section 34C, the group constituted in consequence of the reference under section 45 is to be treated as if it were constituted in consequence of a reference under section 22 or (as the case may be) 33.
57 Duties of F120CMA and OFCOM to inform Secretary of State
1
The F261CMA shall, in considering whether to make a reference under section 22 or 33, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 58 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
2
58 Specified considerations
1
The interests of national security are specified in this section.
2
In subsection (1) “national security” includes public security; and in this subsection “public security” has the same meaning as in article F3621(4) of the EC Merger Regulation .
F372A
The need for—
a
accurate presentation of news; and
b
free expression of opinion;
in newspapers is specified in this section.
2B
The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section.
2C
The following are specified in this section—
a
the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;
b
the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and
c
the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.
F1042D
The interest of maintaining the stability of the UK financial system is specified in this section (other than for the purposes of sections 67 and 68 or references made, or deemed to be made, by the European Commission to the OFT under article 4(4) or 9 of the EC Merger Regulation).
3
The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.
4
An order under this section may, in particular—
a
provide for a consideration to be specified in this section for a particular purpose or purposes or for all purposes;
b
apply in relation to cases under consideration by the F262CMA, OFCOM or the Secretary of State before the making of the order as well as cases under consideration on or after the making of the order.
58AF38Construction of consideration specified in section 58(2C)
1
For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting.
2
In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises.
3
In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers.
4
Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards.
5
For the purposes of section 58, where two or more media enterprises—
a
would fall to be treated as under common ownership or common control for the purposes of section 26, or
b
are otherwise in the same ownership or under the same control,
they shall be treated (subject to subsection (4)) as all under the control of only one person.
6
A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate—
a
as a reference to any one of the audiences served by that enterprise, taking them separately;
b
as a reference to all the audiences served by that enterprise, taking them together;
c
as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or
d
as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.
7
The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service—
a
shall be such as the decision-making authority considers appropriate in the circumstances of the case; and
b
may allow for persons to be treated as members of an audience if they are only potentially members of it.
8
In this section “audience” includes readership.
9
The power under subsection (3) of section 58 to modify that section includes power to modify this section.
Chapter 3Other special cases
Special public interest cases
59 Intervention by Secretary of State in special public interest cases
1
Subsection (2) applies where the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a special 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 special merger situation.
2
The Secretary of State may give a notice to the F263CMA (in this Part “a special intervention notice”) if he believes that it is or may be the case that one or more than one consideration specified in section 58 is relevant to a consideration of the special merger situation concerned.
F403
For the purposes of this Part a special merger situation has been created if—
a
the condition mentioned in subsection (3A) is satisfied; and
b
immediately before the enterprises concerned ceased to be distinct—
i
the conditions mentioned in subsection (3B) were satisfied;
ii
the condition mentioned in subsection (3C) was satisfied; or
iii
the condition mentioned in subsection (3D) was satisfied.
3A
The condition mentioned in this subsection is that—
a
no relevant merger situation has been created because of section 23(1)(b) and (2)(b); but
b
a relevant merger situation would have been created if those enactments were disregarded.
3B
The conditions mentioned in this subsection are that—
a
at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and
b
a person carrying on one or more of the enterprises concerned was a relevant government contractor.
3C
The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on.
3D
The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.
5
For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 F264to 30 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).
6
In their application by virtue of subsection (5) sections 23 F267to 30 shall have effect as if—
a
for paragraph (a) of section 23(9) there were substituted—
a
in relation to the giving of a special intervention notice, the time when the notice is given;
aa
in relation to the making of a report by the F265CMA under section 61, the time of the making of the report;
ab
in the case of a reference which is treated as having been made under section 62(2) by virtue of section 64(2), such time as the F266CMA may determine; and
b
the references to the F265CMA in section 24(2)(a) and (b) included references to the Secretary of State;
c
d
the references to the F265CMA in section 25(4) and (5) were references to the Secretary of State;
e
the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;
f
the reference in section 25(12) to one extension were a reference to one extension by the F265CMA and one extension by the Secretary of State;
g
F270h
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
F272j
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F416A
The Secretary of State may by order amend the conditions mentioned in subsection (3)(b)(ii) and (iii).
7
No more than one special intervention notice shall be given under subsection (2) in relation to the same special merger situation.
8
In this section “relevant government contractor” means—
a
a government contractor—
i
who has been notified by or on behalf of the Secretary of State of information, documents or other articles relating to defence and of a confidential nature which the government contractor or an employee of his may hold or receive in connection with being such a contractor; and
ii
whose notification has not been revoked by or on behalf of the Secretary of State; or
b
a former government contractor who was so notified when he was a government contractor and whose notification has not been revoked by or on behalf of the Secretary of State.
9
In this section—
“defence” has the same meaning as in section 2 of the Official Secrets Act 1989 (c. 6); and
“government contractor” has the same meaning as in the Act of 1989 and includes any sub-contractor of a government contractor, any sub-contractor of that sub-contractor and any other sub-contractor in a chain of sub-contractors which begins with the sub-contractor of the government contractor.
59AF50Construction of conditions in section 59(3C) and (3D)
1
For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to—
a
newspapers of any description, or
b
broadcasting of any description,
the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.
2
References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
a
as references to any of those forms of supply taken separately;
b
as references to all those forms of supply taken together; or
c
as references to any of those forms of supply taken in groups.
3
For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—
a
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
b
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
4
References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate—
a
as references to any of those forms of provision taken separately;
b
as references to all those forms of provision taken together; or
c
as references to any of those forms of provision taken in groups.
5
For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—
a
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
b
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
6
The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.
7
In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.
60 Special intervention notices under section 59
1
A special intervention notice shall state—
a
the special merger situation concerned; and
b
the consideration specified in section 58 or considerations so specified which are, or may be, relevant to the special merger situation concerned.
2
Where the Secretary of State believes that it is or may be the case that two or more considerations specified in section 58 are relevant to a consideration of the special merger situation concerned, he may decide not to mention in the special intervention notice such of those considerations as he considers appropriate.
3
A special intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
4
For the purposes of this Part, a matter to which a special intervention notice relates is finally determined under this Chapter if—
a
b
the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 62;
c
the Secretary of State otherwise decides not to make a reference under that section;
d
the F274CMA cancels such a reference under section 64(1);
e
the time within which theF274CMA is to prepare a report under section 65 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
f
the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;
g
the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;
h
the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
i
the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
5
For the purposes of this Part the time when a matter to which a special intervention notice relates is finally determined under this Chapter is—
a
in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
b
in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
c
in a case falling within subsection (4)(c), (d) or (g), the making of the decision concerned;
d
in a case falling within subsection (4)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
e
in a case falling within subsection (4)(i), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
61 Initial investigation and report by F124CMA
1
Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.
2
The F149CMA 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 F149CMA 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 62; and
b
a summary of any representations about the case which have been received by the F149CMA and which relate to any consideration mentioned in the special intervention notice concerned F44(other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
4
The report shall include a decision as to whether the F149CMA believes (disregarding section F4559(3B)(b)) that it is, or may be, the case that a special merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
F464A
The report may, in particular, contain a summary of any representations about the case which have been received by the F149CMA and which relate to any consideration which—
a
is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
b
is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
5
The report may, in particular, include advice and recommendations on any consideration mentioned in the special 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 62.
6
The F341CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
61AF51Additional investigation and report by OFCOM: certain media mergers
1
Subsection (2) applies where—
a
the Secretary of State has given a special intervention notice in relation to a special merger situation; and
b
the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C).
2
OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.
3
The report shall contain—
a
advice and recommendations on any consideration which—
i
is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
ii
is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and
b
a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.
4
OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.
62 Power of Secretary of State to refer the matter
1
Subsection (2) applies where the Secretary of State—
a
has given a special intervention notice in relation to a special merger situation; and
2
The Secretary of State may make a reference F276to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
a special merger situation has been created;
b
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
c
taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
3
The Secretary of State may make a reference F276to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;
b
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
c
taking account only of the relevant consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
4
No reference shall be made under this section if the making of the reference is prevented by F48. . . paragraph 4 of Schedule 7.
5
The Secretary of State, in deciding whether to make a reference under this section, shall accept the decision of the F277CMA included in its report under section 61 by virtue of subsection (4) of that section.
6
A reference under this section shall, in particular, specify—
a
the subsection of this section under which it is made;
b
the date on which it is made; and
c
the consideration or considerations mentioned in the special intervention notice which the Secretary of State believes are, or may be, relevant to a consideration of the special merger situation concerned.
62AC364F150Functions to be exercised by CMA groups
Where a reference is made to the chair of the CMA under section 62 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
a
sections 63 to 65;
b
where a reference is treated by virtue of section 64(2) as having been made under section 62(2), section 23(9)(ab) (as it has effect by virtue of section 59(6));
c
sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;
d
section 107, so far as relating to anything done on behalf of the CMA by the group;
e
section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
f
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
g
section 118(4);
h
section 120(5)(b), so far as relating to a decision of the group.
C1663 Questions to be decided on references under section 62
1
The F151CMA shall, on a reference under section 62(2), decide whether a special merger situation has been created.
2
The F151CMA shall, on a reference under section 62(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
3
If the F151CMA decides that a special merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation, it shall, on a reference under section 62, decide whether, taking account only of the consideration or considerations mentioned in the reference, the creation of that situation operates or may be expected to operate against the public interest.
4
The F151CMA shall, if it has decided on a reference under section 62 that the creation of a special merger situation operates or may be expected to operate against the public interest, decide the following additional questions—
a
whether action should be taken by the Secretary of State under section 66 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned;
b
whether the F151CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned; and
c
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
64 Cancellation and variation of references under section 62
1
The F152CMA shall cancel a reference under section 62(3) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.
2
The F152CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section; and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.
3
Where, by virtue of subsection (2), the F152CMA treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section, paragraphs F278... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (3) or (as the case may be) (2) of that section instead of under subsection (2) or (3) of that section.
4
Subsection (5) applies in relation to F279... any order made under paragraph 2 of F280Schedule 7, which is in force immediately before the F152CMA, by virtue of subsection (2), treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section.
5
The F281... order shall, so far as applicable, continue in force as if—
a
b
6
The Secretary of State may at any time vary a reference under section 62.
7
The Secretary of State shall consult the F152CMA before varying any such reference.
8
Subsection (7) shall not apply if the F152CMA has requested the variation concerned.
9
No variation by the Secretary of State under this section shall be capable of altering the consideration or considerations specified in the reference or the period permitted by virtue of section 65 within which the report of the F152CMA under that section is to be prepared and given to the Secretary of State.
65 Investigations and reports on references under section 62
1
The F153CMA shall prepare a report on a reference under section 62 and give it to the Secretary of State within the period permitted by virtue of this section.
2
The report shall, in particular, contain—
a
the decisions of the F153CMA on the questions which it is required to answer by virtue of section 63;
b
its reasons for its decisions; and
c
such information as the F153CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
F492A
Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the F153CMA shall give a copy of its report (whether or not published) to OFCOM.
3
Sections 51 and 52 (but not section 53) shall apply for the purposes of a report under this section as they apply for the purposes of a report under section 50.
4
The F284CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.
66 Decision and enforcement action by Secretary of State
1
Subsection (2) applies where the Secretary of State has received a report of the F154CMA under section 65 in relation to a special merger situation.
2
The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the F154CMA is required to decide by virtue of section 63(1) to (3).
3
The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the F154CMA under section 65; and subsection (8) of section 54 shall apply for the purposes of this subsection as it applies for the purposes of subsection (5) of that section.
4
In making his decisions under subsection (2), the Secretary of State shall accept the decisions of the report of the F154CMA under section 65 as to whether a special merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
5
Subsection (6) applies where the Secretary of State has decided under subsection (2) that—
a
a special 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 special merger situation;
b
at least one consideration which is mentioned in the special intervention notice concerned is relevant to a consideration of the special merger situation concerned; and
c
taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest;
and has so decided, and published his decision, within the period required by subsection (3).
6
The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned.
7
In making a decision under subsection (6), the Secretary of State shall, in particular, have regard to the report of the F285CMA under section 65.
European mergers
67 Intervention to protect legitimate interests
1
Subsection (2) applies where—
a
the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—
i
a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
ii
a concentration with a Community dimension (within the meaning of the F52EC Merger Regulation), or a part of such a concentration, has thereby arisen or will thereby arise;
b
c
the Secretary of State is considering whether to take appropriate measures to protect legitimate interests as permitted by article F5621(4) of the EC Merger Regulation.
2
The Secretary of State may give a notice to the F286CMA (in this section “a European intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.
3
A European intervention notice shall state—
a
the relevant merger situation concerned;
b
the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and
c
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
4
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
5
No more than one European intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.
6
Where the Secretary of State has given a European intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
7
For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 F287to 30 (read together with section 34) shall apply for the purposes of this section as they do for the purposes of Chapter 1 but subject to subsection (8).
8
In their application by virtue of subsection (7) sections 23 F288to 30 shall have effect as if—
a
references in those sections to the decision-making authority were references to the Secretary of State;
b
for paragraphs (a) and (b) of section 23(9) there were substituted “
, in relation to the giving of a European intervention notice, the time when the notice is given
”
;
c
the references to the F286CMA in section 24(2)(a) and (b) included references to the Secretary of State;
d
F289section 25 were omitted; and
e
the references in sections 23 to 29 to the making of a reference or a reference were, so far as necessary, references to the giving of a European intervention notice or a European intervention notice.
9
Section 42(3) shall, in its application to this section and section 68, have effect as if for the words “intervention notice” there were substituted “
European intervention notice
”
.
68 Scheme for protecting legitimate interests
1
The Secretary of State may by order provide for the taking of action, where a European intervention notice has been given, to remedy, mitigate or prevent effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of a European relevant merger situation.
2
In subsection (1) “European relevant merger situation” means a relevant merger situation—
a
which has been created or will be created if arrangements which are in progress or in contemplation are carried into effect;
b
by virtue of which a concentration with a Community dimension (within the meaning of the F57EC Merger Regulation), or a part of such a concentration, has arisen or will arise; and
3
Provision made under subsection (1) shall include provision ensuring that considerations which are not public interest considerations mentioned in the European intervention notice concerned may not be taken into account in determining whether anything operates, or may be expected to operate, against the public interest.
4
Provision made under subsection (1) shall include provision—
a
applying with modifications sections 23 F290to 30 for the purposes of deciding for the purposes of this section whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
b
requiring the F291CMA to make a report to the Secretary of State before a reference is made;
c
enabling the Secretary of State to make a reference F292to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013;
d
requiring F293the CMA, acting through a group so constituted, to investigate and report to the Secretary of State on such a reference;
e
enabling the taking of interim and final enforcement action.
5
An order under this section may include provision (including provision for the creation of offences and penalties, the payment of fees and the delegation of functions) corresponding to any provision made in, or in connection with, this Part in relation to intervention notices or special intervention notices and the cases to which they relate.
6
In this section “European intervention notice” has the same meaning as in section 67.
Other
69 Newspaper mergers
F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70 Water mergers
1
For sections 32 to 35 of the Water Industry Act 1991 (c. 56) (special provision for water merger references) there shall be substituted—
32 Duty to refer merger of water or sewerage undertaking
Subject to section 33 below, it shall be the duty of the OFT to make a merger reference to the Competition Commission if the OFT believes that it is or may be the case—
a
that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises; or
b
that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) above.
33 Exclusion of small mergers from duty to make reference
1
The OFT shall not make a merger reference under section 32 above in respect of any actual or prospective merger of two or more water enterprises if it appears to the OFT—
a
that the value of the turnover of the water enterprise being taken over does not exceed or, as the case may be, would not exceed £10 million; or
b
that the only water enterprises already belonging to the person making the take over are enterprises each of which has a turnover the value of which does not exceed or, as the case may be, would not exceed £10 million.
2
For the purposes of subsection (1)(a) above, the value of the turnover of the water enterprise being taken over shall be determined by taking the total value of the turnover of the water enterprises ceasing to be distinct enterprises and deducting—
a
the turnover of any water enterprise continuing to be carried on under the same ownership and control; or
b
if there is no water enterprise continuing to be carried on under the same ownership and control, the turnover which, of all the turnovers concerned, is the turnover of the highest value.
3
For the purposes of subsection (1)(b) above—
a
every water enterprise ceasing to be a distinct enterprise and whose turnover is to be deducted by virtue of subsection (2)(a) or (b) above shall be treated as a water enterprise belonging to the person making the take over; and
b
water enterprises shall be treated as separate enterprises so far as they are carried on by different companies holding appointments under Chapter 1 of this Part.
4
For the purposes of this section the turnover of a water enterprise shall be determined in accordance with such provisions as may be specified in regulations made by the Secretary of State.
5
Regulations under subsection (4) above may, in particular, make provision as to—
a
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover; and
b
the date or dates by reference to which an enterprise’s turnover is to be determined.
6
Regulations under subsection (4) above may, in particular, make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (5) above).
7
The Secretary of State may by regulations amend subsection (1) above so as—
a
to alter the sum for the time being mentioned in paragraph (a) of that subsection or otherwise to modify the condition set out in that paragraph; or
b
to alter the sum for the time being mentioned in paragraph (b) of that subsection or otherwise to modify the condition set out in that paragraph.
8
Regulations under subsection (7) above—
a
shall not make any modifications in relation to mergers on or before the coming into force of the regulations; and
b
may, in particular, include supplemental, consequential or transitional provision amending or repealing any provision of this section.
9
References in this section to enterprises being carried on under the same ownership and control shall be construed in accordance with Part 3 of the 2002 Act.
34 Application of provisions of Enterprise Act 2002
The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises.
35 Construction of merger provisions
1
In this Chapter (including Schedule 4ZA)—
“enterprise” has the same meaning as in Part 3 of the 2002 Act; and
“water enterprise” means an enterprise carried on by a water undertaker.
2
References in this Chapter (including Schedule 4ZA), in relation to any two or more enterprises, to the merger of those enterprises are references to those enterprises ceasing, within the meaning of Part 3 of the 2002 Act, to be distinct enterprises; and sections 27 and 29 of that Act and any provision made under section 34 of that Act (time at which enterprises cease to be distinct) shall have effect for the purposes of this Chapter (including Schedule 4ZA) as they have effect for the purposes of that Part.
3
Nothing in sections 32 to 34 above (including Schedule 4ZA) shall prejudice any power of the OFT or the Secretary of State, in a case in which, or to any extent to which, the OFT is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act in respect of any actual or prospective merger of two or more water enterprises.
4
Where two or more enterprises have merged or will merge as part of transactions or arrangements which also involve an actual or prospective merger of two or more water enterprises, Part 3 of the 2002 Act shall apply in relation to the actual or prospective merger of the enterprises concerned excluding the water enterprises; and references in that Part to the creation of a relevant merger situation shall be construed accordingly.
5
Subject to subsections (3) and (4), Part 3 of the 2002 Act shall not apply in a case in which the OFT is required to make a reference under section 32 above except as applied by virtue of Schedule 4ZA.
2
Before Schedule 4A to the Act of 1991 there shall be inserted, as Schedule 4ZA, the Schedule set out in Schedule 6 to this Act.
C316Chapter 4Enforcement
Powers exercisable before references under section 22 or 33
F29471 Initial undertakings: completed mergers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72C316Initial enforcement orders: F128completed or anticipated mergers
F2971
Subsection (2) applies where—
a
the CMA is considering whether to make a reference under section 22 or 33; and
b
the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct.
2
The F298CMA may by order, for the purpose of preventing pre-emptive action—
a
prohibit or restrict the doing of things which the F298CMA considers would constitute pre-emptive action;
b
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
c
provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
d
do anything which may be done by virtue of paragraph 19 of Schedule 8.
F2993
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2953A
Subsection (3B) applies where—
a
subsection (1)(a) and (b) applies; and
b
the CMA also has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
3B
The CMA may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—
a
do anything mentioned in subsection (2)(b) to (d);
b
impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
F2963C
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
4
An order under this section—
a
shall come into force at such time as is determined by or under the order; and
b
may be varied or revoked by another order.
F3005
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
An order under this section shall, if it has not previously ceased to be in force and if it is not adopted under F301... paragraph 2 of Schedule 7, cease to be in force—
a
i
if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and
ii
otherwise on the final determination of the reference concerned;
b
where the F298CMA has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;
c
where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and
7
The F304CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
F3058
In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.
73C316 Undertakings in lieu of references under section 22 or 33
1
Subsection (2) applies if the F155CMA considers that it is under a duty to make a reference under section 22 or 33 (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 F155CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).
2
The F155CMA 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 F155CMA 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.
4
In proceeding under subsection (2), the F155CMA 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 F306CMA.
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 F307CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
C31673AC316F118Time-limits for consideration of undertakings
1
A party concerned who wishes to offer an undertaking to the CMA for the purposes of section 73(2) must do so before the end of the period of 5 working days beginning with—
a
the day after the CMA gives the person the notice required by section 34ZA(1)(b); or
b
in a case where subsection (2) of section 34A applies, the day after the CMA gives the person the notice required by paragraph (b) of that subsection.
2
If an undertaking is offered for those purposes, the CMA shall, before the end of the period of 10 working days beginning with the day mentioned in subsection (1)—
a
decide whether there are reasonable grounds for believing that the undertaking or a modified version of it might be accepted by the CMA under section 73(2), and
b
if it considers that it might be, give notice to the person who offered the undertaking that it is considering it.
3
If such a notice is given, the CMA shall decide whether to accept the undertaking before the end of the period of 50 working days beginning with the day mentioned in subsection (1).
4
The CMA may extend the period mentioned in subsection (3), by no more than 40 working days, if it considers that there are special reasons for doing so.
5
The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4).
6
The CMA may revise any such guidance and, where it does so, shall publish the revised statement.
7
The CMA may extend the period mentioned in subsection (3) if it considers that a relevant person has failed (with or without reasonable excuse) to comply with any requirement of a notice given under section 109 in relation to the case in question.
8
In subsection (7), “relevant person” means—
a
any person carrying on any of the enterprises concerned;
b
any person who (whether alone or as a member of a group) owns or has control of any such person; or
c
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
9
For the purposes of subsection (8), a person or group of persons able, directly or indirectly, to control or materially influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
10
An extension under subsection (4) or (7) comes into force when published under section 107.
11
An extension under subsection (7) continues in force until—
a
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
b
the CMA publishes its decision to cancel the extension.
12
In this section and section 73B, “working day” means any day which is not—
a
a Saturday, a Sunday, Good Friday or Christmas Day, or
b
a day which is a bank holiday in England and Wales.
C31673BC316Section 73A: supplementary
1
A period extended under section 73A(4) may also be extended under section 73A(7), and a period extended under section 73A(7) may also be extended under section 73A(4).
2
No more than one extension is possible under section 73A(4).
3
Where a period is extended or further extended under section 73A(4) or (7), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
4
Subsection (5) applies where—
a
the period within which the CMA must discharge its duty under section 73A(3) is further extended,
b
the further extension and at least one previous extension is made under section 73A(7), and
c
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
5
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
6
The Secretary of State may by order amend section 73A so as to alter one or more of the periods for the time being mentioned in the section.
7
But no alteration may be made by virtue of subsection (6) which results in—
a
the period mentioned in section 73A(1) exceeding 5 working days;
b
the period mentioned in section 73A(2) exceeding 10 working days;
c
the period mentioned in section 73A(3) exceeding 50 working days;
d
the period mentioned in section 73A(4) exceeding 40 working days.
8
Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
74C316 Effect of undertakings under section 73
1
The relevant authority shall not make a reference under section 22, 33 or 45 in relation to the creation of a relevant merger situation if—
a
the F308CMA has accepted an undertaking or group of undertakings under section 73; and
b
the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.
2
Subsection (1) does not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the F308CMA or made public before any undertaking concerned was accepted.
3
For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.
4
In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.
5
In this section “relevant authority” means—
a
in relation to a possible reference under section 22 or 33, the F309CMA; and
b
in relation to a possible reference under section 45, the Secretary of State.
75C316 Order-making power where undertakings under section 73 not fulfilled etc.
1
Subsection (2) applies where the F311CMA considers that—
a
an undertaking accepted by it under section 73 has not been, is not being or will not be fulfilled; or
2
The F311CMA may, for any of the purposes mentioned in section 73(2), make an order under this section.
3
Subsections (3) and (4) of section 73 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.
4
An order under this section may contain—
b
such supplementary, consequential or incidental provision as the F310CMA considers appropriate.
5
An order under this section—
a
shall come into force at such time as is determined by or under the order;
b
may contain provision which is different from the provision contained in the undertaking concerned; and
c
may be varied or revoked by another order.
6
The F310CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
76C316 Supplementary interim order-making power
1
Subsection (2) applies where—
a
the F312CMA has the power to make an order under section 75 in relation to a particular undertaking and intends to make such an order; or
b
the F313CMA has the power to make an order under section 83 in relation to a particular undertaking and intends to make such an order.
2
The F314CMA may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this section.
3
No order shall be made under subsection (2) unless the F314CMA has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under section 75 or (as the case may be) 83 is in progress or in contemplation.
4
An order under subsection (2) may—
a
prohibit or restrict the doing of things which the F315CMA considers would prejudice the making of the order under section 75 or (as the case may be) 83;
b
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
c
provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
d
do anything which may be done by virtue of paragraph 19 of Schedule 8.
5
An order under this section—
a
shall come into force at such time as is determined by or under the order; and
b
may be varied or revoked by another order.
6
An order under this section shall, if it has not previously ceased to be in force, cease to be in force on—
a
the coming into force of an order under section 75 or (as the case may be) 83 in relation to the undertaking concerned; or
b
the making of the decision not to proceed with such an order.
7
The F316CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
Interim restrictions and powers
77 Restrictions on certain dealings: completed mergers
1
Subsections (2) and (3) apply where—
a
a reference has been made under section 22 but not finally determined; and
b
no undertakings under section F317... 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
2
No relevant person shall, without the consent of the F318CMA —
a
complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;
b
make any further arrangements in consequence of that result (other than arrangements which reverse that result); or
c
transfer the ownership or control of any enterprises to which the reference relates.
3
No relevant person shall, without the consent of the F318CMA, assist in any of the activities mentioned in paragraphs (a) to (c) of subsection (2).
4
The prohibitions in subsections (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.
5
The consent of the F319CMA under subsection (2) or (3)—
a
may be general or special;
b
may be revoked by the F319CMA; and
c
shall be published in such manner as the F319CMA considers appropriate for the purpose of bringing it to the attention of any person entitled to the benefit of it.
6
Paragraph (c) of subsection (5) shall not apply if the F319CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
7
Subsections (2) and (3) 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.
8
In this section “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.
78 Restrictions on certain share dealings: anticipated mergers
1
Subsection (2) applies where—
a
a reference has been made under section 33; and
b
no undertakings under section 80 are in force in relation to the relevant merger situation concerned and no orders under F320section 72 or 81 are in force in relation to that situation.
2
No relevant person shall, without the consent of the F156CMA, 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 F156CMA under subsection (2)—
a
may be general or special;
b
may be revoked by the F156CMA; and
c
shall be published in such manner as the F156CMA considers appropriate for bringing it to the attention of any person entitled to the benefit of it.
4
Paragraph (c) of subsection (3) shall not apply if the F156CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
5
Subsection (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 section and section 79—
“company” includes any body corporate;
“relevant period” means the period beginning with the making of 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
- a
“share” means share in the capital of a company, and includes stock.
C20C35979 Sections 77 and 78: further interpretation provisions
1
For the purposes of this Part a reference under section 22 or 33 is finally determined if—
a
the reference is cancelled under section 37(1);
b
the time within which the F321CMA is to prepare and publish a report under section 38 in relation to the reference has expired and no such report has been prepared and published;
c
the report of the F321CMA under section 38 contains the decision that there is not an anti-competitive outcome;
d
2
For the purposes of this Part the time when a reference under section 22 or 33 is finally determined is—
a
in a case falling within subsection (1)(a), the making of the decision concerned;
b
in a case falling within subsection (1)(b), the expiry of the time concerned;
c
in a case falling within subsection (1)(c), the publication of the report;
d
in a case falling within subsection (1)(d), the making of the decision under section 41(2); and
e
in a case falling within subsection (1)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
3
For the purposes of section 78 and subject to subsection (4) below, the circumstances in which a person acquires an interest in shares include those where—
a
he enters into a contract to acquire the shares (whether or not for cash);
b
he is not the registered holder but acquires the right to exercise, or to control the exercise of, any right conferred by the holding of the shares; or
c
he—
i
acquires a right to call for delivery of the shares to himself or to his order or to acquire an interest in the shares; or
ii
assumes an obligation to acquire such an interest.
4
The circumstances in which a person acquires an interest in shares for the purposes of section 78 do not include those where he acquires an interest in pursuance of an obligation assumed before the publication by the F322CMA of the reference concerned.
5
The circumstances in which a person acquires a right mentioned in subsection (3)—
a
include those where he acquires a right, or assumes an obligation, whose exercise or fulfilment would give him that right; but
b
do not include those where he is appointed as proxy to vote at a specified meeting of a company or of any class of its members or at any adjournment of the meeting or he is appointed by a corporation to act as its representative at any meeting of the company or of any class of its members.
6
References to rights and obligations in subsections (3) to (5) include conditional rights and conditional obligations.
7
References in sections 77 and 78 to a person carrying on or having control of any enterprise includes a group of persons carrying on or having control of an enterprise and any member of such a group.
8
Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of sections 77 and 78 to determine whether any person or group of persons has control of any enterprise and whether persons are associated as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
9
F108Section 1159 of, and Schedule 6 to, the Companies Act 2006 shall apply for the purposes of sections 77 and 78 to determine whether a company is a subsidiary of an individual or of a group of persons as they apply to determine whether it is a subsidiary of a company; and references to a subsidiary in F109paragraph 8 of Schedule 6 as so applied shall be construed accordingly.
80 Interim undertakings
1
F325Subsections (2) and (2A) apply where a reference under section 22 or 33 has been made but is not finally determined.
2
The F326CMA may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
F3232A
Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
F3242B
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an undertaking under this section.
F3273
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3274
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F328An 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 F329CMA.
F3306
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
An undertaking which is in force under this section in relation to a reference under section 22 or 33 shall cease to be in force if an order under section 81 comes into force in relation to that reference.
8
An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 or 33 is finally determined.
9
The F331CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
10
In this section and section 81 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the F332CMA's decisions on the reference.
81 Interim orders
1
F335Subsections (2) and (2A) apply where a reference has been made under section 22 or 33 but is not finally determined.
2
The F336CMA may by order, for the purpose of preventing pre-emptive action—
a
prohibit or restrict the doing of things which the F336CMA considers would constitute pre-emptive action;
b
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
c
provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
d
do anything which may be done by virtue of paragraph 19 of Schedule 8.
F3332A
Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may by order, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects—
a
do anything mentioned in subsection (2)(b) to (d);
b
impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
F3342B
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
F3373
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3374
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F338An order under this section—
a
shall come into force at such time as is determined by or under the order; and
b
may be varied or revoked by another order.
F3396
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
An order which is in force under this section in relation to a reference under section 22 or 33 shall cease to be in force if an undertaking under section 80 comes into force in relation to that reference.
8
An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 or 33 is finally determined.
9
The F340CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
Final powers
82 Final undertakings
1
The F342CMA may, in accordance with section 41, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
2
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 F342CMA.
3
An undertaking which is in force under this section in relation to a reference under section 22 or 33 shall cease to be in force if an order under section 76(1)(b) or 83 comes into force in relation to the subject-matter of the undertaking.
4
No undertaking shall be accepted under this section in relation to a reference under section 22 or 33 if an order has been made under—
a
section 76(1)(b) or 83 in relation to the subject-matter of the undertaking; or
b
section 84 in relation to that reference.
5
The F343CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
83 Order-making power where final undertakings not fulfilled
1
Subsection (2) applies where the F345CMA considers that—
a
an undertaking accepted by it under section 82 has not been, is not being or will not be fulfilled; or
2
The F348CMA may, for any of the purposes mentioned in section 41(2), make an order under this section.
3
Subsections (3) to (5) of section 41 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.
4
An order under this section may contain—
b
such supplementary, consequential or incidental provision as the F344CMA considers appropriate.
5
An order under this section—
a
shall come into force at such time as is determined by or under the order;
b
may contain provision which is different from the provision contained in the undertaking concerned; and
c
may be varied or revoked by another order.
F3496
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84 Final orders
1
The F350CMA may, in accordance with section 41, make an order under this section.
2
An order under this section may contain—
b
such supplementary, consequential or incidental provision as the F350CMA considers appropriate.
3
An order under this section—
a
shall come into force at such time as is determined by or under the order; and
b
may be varied or revoked by another order.
F3514
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
No order shall be made under this section in relation to a reference under section 22 or 33 if an undertaking has been accepted under section 82 in relation to that reference.
Public interest and special public interest cases
85 Enforcement regime for public interest and special public interest cases
1
Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.
2
The F352CMA may advise the Secretary of State in relation to the taking by him of enforcement action under Schedule 7.
Undertakings and orders: general provisions
C2786 Enforcement orders: general provisions
1
An enforcement order may extend 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.
C282
Nothing in an enforcement order shall have effect so as to—
a
cancel or modify conditions in licences granted—
i
under a patent granted under the Patents Act 1977 (c. 37) or a European patent (UK) (within the meaning of the Act of 1977); or
ii
in respect of a design registered under the Registered Designs Act 1949 (c. 88);
by the proprietor of the patent or design; or
b
require an entry to be made in the register of patents or the register of designs to the effect that licences under such a patent or such a design are to be available as of right.
C293
An enforcement order may prohibit the performance of an agreement already in existence when the order is made.
4
Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.
5
Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.
6
In this Part “enforcement order” means an order made under section 72, 75, 76, 81, 83 or 84 or under paragraph 2, 5, 6, 10 or 11 of Schedule 7.
C30C31C3287 Delegated power of directions
1
An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—
a
a person specified in the directions; or
b
the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
2
Directions fall within this subsection if they are directions—
a
to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, the enforcement order concerned; or
b
to do, or refrain from doing, anything so specified or described which the person might be required by that order to do or refrain from doing.
3
An enforcement order may authorise the person making the order to vary or revoke any directions so given.
4
The court may by order require any person who has failed to comply with directions given by virtue of this section to comply with them, or otherwise remedy his failure, within such time as may be specified in the order.
5
Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
6
An order under subsection (4) or (5) shall be made on the application of the person authorised by virtue of this section to give the directions concerned.
7
An order under subsection (4) or (5) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
8
In this section “the court” means—
a
in relation to England and Wales or Northern Ireland, the High Court; and
b
in relation to Scotland, the Court of Session.
C33C3488 Contents of certain enforcement orders
1
This section applies in relation to any order under section 75, 83 or 84 or under paragraph 5, 10 or 11 of Schedule 7.
2
The order or any explanatory material accompanying the order shall state—
a
the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;
b
the date on which the order comes into force;
c
the possible consequences of not complying with the order; and
d
the section of this Part under which a review can be sought in relation to the order.
C3589 Subject-matter of undertakings
C36C37C381
The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
2
C3990 Procedural requirements for certain undertakings and orders
Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.
C40C4191 Register of undertakings and orders
1
The F356CMA shall compile and maintain a register for the purposes of this Part.
2
The register shall be kept in such form as the F356CMA considers appropriate.
C423
The F355CMA shall ensure that the following matters are entered in the register—
a
the provisions of any enforcement undertaking accepted under this Part;
b
the provisions of any enforcement order made under this Part;
c
the details of any variation, release or revocation of such an undertaking or order; and
d
the details of any consent given by the F357CMA under section 77(2) or (3) or 78(2) or by the Secretary of State under paragraph 7(2) or (3) or 8(2) of Schedule 7.
4
The duty in subsection (3) does not extend to anything of which the F358CMA is unaware.
5
The F359Secretary of State shall inform the F360CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted F361by the Secretary of State, enforcement orders made by them or consents given F361by the Secretary of State.
6
The F362CMA shall ensure that the contents of the register are available to the public—
a
during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and
b
subject to such reasonable fees (if any) as the F362CMA may determine.
7
Enforcement functions of F125CMA
Word in s. 92 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 127 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
C43C4492 Duty of F126CMA to monitor undertakings and orders
1
The F363CMA shall keep under review—
C45a
the carrying out of any enforcement undertaking or any enforcement order; and
b
compliance with the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
2
The F363CMA shall, in particular, from time to time consider—
a
whether an enforcement undertaking or enforcement order has been or is being complied with;
b
whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
i
one or more of the parties to it can be released from it; or
ii
it needs to be varied or to be superseded by a new enforcement undertaking; and
c
whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
3
The F364CMA shall give F365... the Secretary of State such advice as it considers appropriate in relation to—
a
b
c
d
e
the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or
f
the enforcement by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
4
The F158CMA shall take such action as it considers appropriate in relation to—
a
any possible variation or release by it of an enforcement undertaking accepted by it;
b
any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
c
any possible variation or revocation by it of an enforcement order made by it;
d
any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;
e
the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or
f
the enforcement by it by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
5
The F158CMA shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
6
The F158CMA shall, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (5).
7
The F368CMA shall—
F369a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
give a copy of F370 any report prepared by it under subsection (6) to the Secretary of State; and
c
publish the report.
C46C4793 Further role of F127CMA in relation to undertakings and orders
1
Subsections (2) and (3) apply where—
F371a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
the Secretary of State is considering whether to accept undertakings under paragraph F372...3 or 9 of Schedule 7.
2
F373The Secretary of State may require the F374CMA to consult with such persons as the F375Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the F375Secretary of State would be prepared to accept under F376... paragraph F377... 3 or 9 of Schedule 7.
3
4
5
The powers conferred on the relevant authority by subsections (1) to (4) are without prejudice to the power of the relevant authority to consult the persons concerned itself.
6
Other
C48C4994C316 Rights to enforce undertakings and orders
C501
This section applies to any enforcement undertaking or enforcement order.
C512
Any person to whom such an undertaking or order relates shall have a duty to comply with it.
C523
The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.
C534
Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
C545
In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.
6
Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the F410CMA for an injunction or for interdict or for any other appropriate relief or remedy.
F4117
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C558
Compliance with an undertaking under paragraph F409... 3 or 9 of Schedule 7, an order made by the Secretary of State under paragraph 2 of that Schedule or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
C569
Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.
C31694AC316F113Interim undertakings and orders under this Part: penalties
1
Where the appropriate authority considers that a person has, without reasonable excuse, failed to comply with an interim measure, it may impose a penalty of such fixed amount as it considers appropriate.
2
A penalty imposed under subsection (1) shall not exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed.
3
For the purposes of subsection (2), the Secretary of State may by order make provision for determining—
a
when an enterprise is to be treated as controlled by a person; and
b
the turnover (both in and outside the United Kingdom) of an enterprise.
4
An order under subsection (3)(b) may, in particular, make provision as to—
a
the amounts which are, or which are not, to be treated as comprising an enterprise's turnover;
b
the date or dates by reference to which an enterprise's turnover is to be determined.
5
An order under subsection (3) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) and (b) of subsection (4)).
6
The Secretary of State may by order amend subsection (2) so as to alter the percentage for the time being mentioned there to any percentage not exceeding 5%.
7
Sections 112 to 115 apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty of a fixed amount imposed under section 110(1), with the modification that any reference in those provisions to the CMA is to be read as a reference to the person who imposed the penalty under this section.
8
In this section—
“interim measure” means—
- a
an undertaking under section 80; or
- b
an order under section 72 or 81 or paragraph 2 of Schedule 7;
- a
“appropriate authority” means—
- a
in relation to an interim measure which is an order made by the Secretary of State under paragraph 2 of Schedule 7, the Secretary of State;
- b
in relation to any other interim measure, the CMA.
- a
C31694BC316Statement of policy in relation to powers under sections 94 and 94A
1
The CMA shall prepare and publish a statement of policy in relation to the use of its powers under—
a
section 94, insofar as they relate to interim measures; and
b
section 94A.
2
The CMA shall, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 94A.
3
The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
4
The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
5
A statement or revised statement of policy may not be published under this section unless the Secretary of State approves the statement.
6
In this section, “interim measure” has the same meaning as in section 94A.
C5795C316 Rights to enforce statutory restrictions
1
The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.
2
Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
3
In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.
4
Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the F412CMA or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
5
Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the F413CMA or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
6
Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.
C316Chapter 5Supplementary
Merger notices
96C316 Merger notices
1
2
Any such notice (in this Part a “merger notice”)—
a
shall be in the prescribed form;
F417aa
shall contain the prescribed information; and
b
shall state that the existence of the proposal has been made public.
F4142A
Where the CMA is satisfied that a merger notice meets the requirements of subsection (2), it shall give notice to that effect to the person who gave the merger notice.
F4183
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4184
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the F419CMA by notice having effect for the time being and published in the London, Edinburgh and Belfast Gazettes.
6
In this Part “notified arrangements” means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.
F42097C316 Period for considering merger notices
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42198C316 Section 97: supplementary
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
99C316 Certain functions of F131CMA in relation to merger notices
1
The F424CMA shall, so far as practicable and when F425the initial period (within the meaning of section 34ZA) begins in relation to the merger notice, take such action as the F424CMA considers appropriate to bring—
a
the existence of the proposal;
b
the fact that the merger notice has been given; and
c
the date on which the period for considering the notice may expire;
to the attention of those whom the F424CMA considers would be affected if the arrangements were carried into effect.
F1592
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1593
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1594
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
The F422CMA may, at any time before the end of F423the initial period (within the meaning of section 34ZA) in relation to a merger notice, reject the notice if—
a
the F422CMA suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;
b
the F422CMA suspects that it is not proposed to carry the notified arrangements into effect;
c
any prescribed information is not given in the merger notice F426or the person who gave the merger notice has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case concerned; or
6
In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—
a
any person who, for the purposes of section 127, is associated with him; or
b
any subsidiary of the person who gave the merger notice or of any person so associated with him.
100C316 Exceptions to protection given by merger notices
1
F400Sections 22(3)(za) and 33(3)(za) do not prevent any reference being made F401under section 22 or (as the case may be) 33 if—
a
F403b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
any information (whether prescribed information or not) that—
i
is, or ought to be, known to the person who gave the merger notice or any connected person; and
ii
is material to the notified arrangements;
d
at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;
e
the six months beginning with the end of F405the initial period (within the meaning of section 34ZA) in relation to the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;
f
the merger notice is withdrawn; or
g
any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.
2
Subsection (3) applies where—
a
two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under F406section 22 or 33 as having occurred simultaneously on a particular date; and
b
F407sections 22(3)(za) and 33(3)(za) do not prevent such a reference in relation to the last of those transactions.
3
F408Sections 22(3)(za) and 33(3)(za) do not not prevent such a reference in relation to any of those transactions which actually occurred less than six months before—
a
that date; or
b
the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).
4
In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
5
In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.
101C316 Merger notices: regulations
1
The Secretary of State may make regulations for the purposes of sections 96 to 100.
2
The regulations may, in particular—
a
provide for F427... section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;
b
provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;
F161c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F161d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F161e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F161f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
102C316 Power to modify sections 97 to 101
The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.
General duties in relation to references
C58103C316 Duty of expedition in relation to references
1
F428In making any decision for the purposes of its functions of making and determining references under this Part, the CMA shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
2
In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
C59C316C318104C316 Certain duties of relevant authorities to consult
1
Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.
2
The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
3
In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
4
In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
a
any restrictions imposed by any timetable for making the decision; and
b
any need to keep what is proposed, or the reasons for it, confidential.
5
The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
6
In this section—
“the relevant authority” means the F429CMA, the Commission or the Secretary of State;
“relevant decision” means—
- a
in the case of the F430CMA, any decision by the F430CMA—
- i
as to whether to make a reference under section 22 or 33 or accept undertakings under section 73 instead of making such a reference; or
- ii
to vary under section 37 such a referenceF431; or
- iii
on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63;
- i
- b
F432...
- c
in the case of the Secretary of State, any decision by the Secretary of State—
- i
as to whether to make a reference under section 45 or 62; or
- ii
to vary under section 49 or (as the case may be) 64 such a reference; and
- i
- a
“relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.
C319C316C60104AC319C316F61Public consultation in relation to media mergers
1
Subsection (2) applies where the F162CMA—
a
is preparing—
i
a report under section 50 on a reference which specifies a media public interest consideration; or
ii
a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and
b
is not under a duty to disregard the consideration concerned.
2
The F162CMA shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger situation or special merger situation concerned and so far as such consultation is practicable.
3
Information and publicity requirements
C61105 General information duties of F130CMA
1
Where the F447CMA decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 or 33, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
F621A
Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
2
F63Subsections (1) and (1A) do not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.
3
a
F663A
OFCOM shall give the F435 CMA —
a
b
any other assistance which the F436CMA may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.
4
F684A
5
The F442CMA and OFCOM shall give the Secretary of State—
a
such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and
b
any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the F451CMA or (as the case may be) OFCOM to give.
6
The F443CMAF69and OFCOM shall give the Secretary of State any information in F70their possession which has not been requested by the Secretary of State but which, in the opinion of the F443CMAF71or (as the case may be) OFCOM, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.
7
F727A
OFCOM shall have regard to any information given to them under subsection (3) or (4);F446...
8
Any direction given under subsection (5)—
a
shall be in writing; and
b
may be varied or revoked by a subsequent direction.
106 Advice and information about references under sections 22 and 33
1
a
the making and consideration by it of references under section 22 or 33, and
b
the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.
2
The F390CMA may at any time publish revised, or new, advice or information.
F3913
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3914
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Advice and information published under this section shall be prepared with a view to—
a
explaining relevant provisions of this Part to persons who are likely to be affected by them; and
b
indicating how the F392CMA or (as the case may be) the Commission expects such provisions to operate.
6
7
8
In preparing any advice or information under this section, the F397CMA shall consult such persons as it considers appropriate.
F3989
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
106AF74Advice and information in relation to media mergers
1
The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C).
2
The Secretary of State may at any time publish revised, or new, advice or information.
3
Advice or information published under this section shall be prepared with a view to—
a
explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and
b
indicating how the Secretary of State expects this Part to operate in relation to such considerations.
4
Any advice or information published by the Secretary of State under this section shall be published in such manner as the Secretary of State considers appropriate.
5
In preparing any advice or information under this section, the Secretary of State shall consult the F462CMA, OFCOM and such other persons as he considers appropriate.
C62106BF75General advisory functions of OFCOM
1
OFCOM may, in connection with any case on which they are required to give a report by virtue of section 44A or 61A, give such advice as they consider appropriate to the Secretary of State in relation to—
a
any report made in such a case by the F463CMA under section 50 or 65; and
b
the taking by the Secretary of State of enforcement action under Schedule 7.
2
OFCOM may, if requested to do so by the Secretary of State, give such other advice as they consider appropriate to the Secretary of State in connection with any case on which they are required to give a report by virtue of section 44A or 61A.
3
OFCOM shall publish any advice given by them under this section but advice given by them in relation to a report of the F464CMA under section 50 or 65 or related enforcement action shall not be published before the report itself is published.
107 Further publicity requirements
1
The F467CMA shall publish—
F468a
any decision made by it that the duty to make a reference under section 22 or 33 applies and any such reference made by it;
aa
any decision made by it that the duty to make such a reference does not apply (other than a decision made by virtue of subsection (2)(b) of section 33);
F163ab
any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3);
ac
any extension by it under section 34ZB of the initial period;
ad
any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b);
ae
any extension by it under section 34A of the preliminary assessment period;
af
any decision made by it to cancel an extension as mentioned in section 34A(6A)(b);
ag
any extension by it under section 46B of the preliminary assessment period;
ah
any decision made by it to cancel an extension as mentioned in section 46B(3A)(b);
b
any variation made by it under section 37 of a reference under section 22 or 33;
c
such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;
F470d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
any enforcement order made by it under section 72 F471... or paragraph 2 of Schedule 7;
F164ea
any notice given by it under section 73A(2)(b);
eb
any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73;
ec
any decision made by it to cancel an extension as mentioned in section 73A(11)(b);
f
any variation, release or revocation of F472an order mentioned in paragraph (e)
F473g
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
any notice given by it under section 96(2A).
2
The F474CMA shall also publish—
a
any cancellation by it under section 37(1) of a reference under section 33;
b
any decision made by it under section 37(2) to treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22;
c
any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;
d
any decision made by it to cancel an extension as mentioned in section 39(8)(b);
e
any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
F475ea
any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged;
eb
any decision made by it to cancel an extension as mentioned in section 41A(7)(b);
f
any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;
g
any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;
h
any decision made by it under section 49(1) to treat—
i
a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
ii
a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
i
any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;
j
any decision made by it under section 51(8)(b) to cancel such an extension;
k
any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;
l
any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;
m
any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;
n
any decision made by it as mentioned in section 76(6)(b);
o
any enforcement order made by it under section 76 or 81;
p
any enforcement undertaking accepted by it under section 80;
q
any variation, release or revocation of such an order or undertaking; and
r
any decision made by it to dispense with the requirements of Schedule 10.
3
The Secretary of State shall publish—
a
any intervention notice or special intervention notice given by him;
b
any report of the F476CMA under section 44 or 61 which has been received by him;
F73ba
any report of OFCOM under section 44A or 61A which has been received by him;
c
any reference made by him under section 45 or 62 or any decision made by him not to make such a reference;
d
any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;
e
any report of the F477CMA under section 50 or 65 which has been received by him;
f
any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;
g
any notice given by him under section 56(1);
F481h
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F481i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
j
any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and
k
any decision made by him to dispense with the requirements of Schedule 10.
4
Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
5
Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
6
Subsections (4) and (5) shall not apply in relation to any information published under subsection (1)(c).
7
The Secretary of State shall publish his reasons for—
a
any decision made by him under section 54(2) or 66(2); or
b
any decision to make an order under section 58(3) or vary or revoke such an order.
8
Such reasons may be published after—
a
in the case of subsection (7)(a), the publication of the decision concerned; and
b
in the case of subsection (7)(b), the making of the order or of the variation or revocation;
if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.
9
The Secretary of State shall publish—
a
b
the report of the F478CMA under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.
10
The Secretary of State shall publish—
a
b
the report of the F479CMA under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.
11
Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the F480CMA's report under section 50 or (as the case may be) 65, before each House of Parliament
C63108 Defamation
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the F482CMA, OFCOM or the Secretary of State in the exercise of any of their functions under this Part.
Investigation powers
C64C65C66C67C68C69C70C71C72C73C74C75C76C77C78C79C80C81C82C83C84C85C86C87C292C294C304C330C334C333C342C339C316C325C327C329C336C337C340C323C341C322C331C324C321C315C326C338C320C328C344C332C335C343109C316 Attendance of witnesses and production of documents etc.
C365F452A1
For the purposes of this section, the permitted purposes are the following—
a
assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 22 or 33;
b
assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 45 or 62.
C3451
F454The CMA may, for a permitted purpose, give notice to any person requiring him—
a
to attend at a time and place specified in the notice; and
C3462
F455The CMA may, for a permitted purpose, give notice to any person requiring him—
a
to produce any documents which—
i
are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and
ii
are in that person’s custody or under his control; and
b
to produce them at a time and place so specified and to a person so specified.
C3473
F456The CMA may, for a permitted purpose, give notice to any person who carries on any business requiring him—
a
to supply to F461the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and
b
to supply it at a time and place, and in a form and manner, so specified and to a person so specified.
C3484
A notice under this section shallF457—
a
specify the permitted purpose for which the notice is given, including the function or functions in question; and
b
include information about the possible consequences of not complying with the notice.
C3495
F458The CMA, or any person nominated by it for the purpose, may for a permitted purpose take evidence on oath, and for that purpose may administer oaths.
C3506
The person to whom any document is produced in accordance with a notice under this section may, F459for a permitted purpose, copy the document so produced.
7
No person shall be required under this section—
a
to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or
b
to supply any information which he could not be compelled to supply in evidence in such proceedings.
8
No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.
C366F4538A
In subsection (A1), “enforcement functions” means—
a
in relation to the CMA—
i
functions conferred by virtue of section 87 on the CMA by enforcement orders;
ii
functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
iii
functions of the CMA under or by virtue of section 75, 76, 83 or 92 in relation to enforcement undertakings or enforcement orders;
b
in relation to the Secretary of State—
i
functions conferred by virtue of section 87 on the Secretary of State by enforcement orders;
ii
functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
iii
functions of the Secretary of State under or by virtue of paragraph 5, 6 or 10 of Schedule 7 in relation to enforcement undertakings or enforcement orders.
9
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.
10
In this section “the court” means—
a
in relation to England and Wales or Northern Ireland, the High Court; and
b
in relation to Scotland, the Court of Session.
C88C89C90C91C92C93C94C95C96C97C98C99C100C101C102C103C104C105C106C107C108C109C110C292C295C305C351C316C320C352C351110C316 Enforcement of powers under section 109: general
1
Where the F487CMA considers that a person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109, it may impose a penalty in accordance with section 111.
2
The F487CMA may proceed (whether at the same time or at different times) under subsection (1) and section 39(4) or (as the case may be) 51(4) (including that enactment as applied by section 65(3)) in relation to the same failure.
3
Where the F487CMA considers that a person has intentionally obstructed or delayed another person in the exercise of his powers under section 109(6), it may impose a penalty in accordance with section 111.
F483C3524
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A person, subject to subsection (6), commits an offence if he intentionally alters, suppresses or destroys any document which he has been required to produce by a notice under section 109.
6
A person does not commit an offence under subsection (5) in relation to any act which constitutes a failure to comply with a notice under section 109 if the F484CMA has proceeded against that person under subsection (1) above in relation to that failure.
7
A person who commits an offence under subsection (5) shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
8
The F485CMA shall not proceed against a person under subsection (1) in relation to an act which constitutes an offence under subsection (5) if that person has been found guilty of that offence.
9
In deciding whether and, if so, how to proceed under subsection (1) or (3) or section 39(4) or 51(4) (including that enactment as applied by section 65(3)), the F486CMA shall have regard to the statement of policy which was most recently published under section 116 at the time when the failure concerned or (as the case may be) the obstruction or delay concerned occurred.
10
The reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
110AC368C367F167Restriction on powers to impose penalties under section 110
1
No penalty shall be imposed by virtue of section 110(1) or (3) if more than 4 weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
2
In the following provisions of this section, “the section 109 power” means the power under section 109 to which the failure or (as the case may be) the obstruction or delay in question relates.
3
Where the section 109 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked.
4
Except where subsection (3) applies, the relevant day is the day determined in accordance with the following provisions of this section.
5
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a possible reference under section 22 or 33, the relevant day is the day when the CMA finally decides whether to make the reference.
6
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a reference under section 22 or 33, the relevant day is the day when the reference is finally determined (see section 79).
7
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a possible reference under section 45 or 62, the relevant day is the day when the Secretary of State finally decides whether to make the reference.
8
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a reference under section 45 or 62, the relevant day is the day when the reference is finally determined.
110BC369F167Section 110A: supplementary provision
1
For the purpose of section 110A(5), the CMA finally decides whether to make a reference under section 22 or 33 if—
a
the CMA decides that the duty to make such a reference applies;
b
the CMA accepts an undertaking under section 73;
c
the CMA decides not to make such a reference (otherwise than because it has accepted an undertaking under section 73);
d
the initial period for the purposes of section 34ZA expires without the CMA having complied with the duty under subsection (1) of that section;
e
the preliminary assessment period for the purposes of section 34A expires without the CMA having complied with the duty under subsection (2) of that section;
f
the period permitted by section 73A for the CMA to make a decision required by subsection (2)(a) or (3) of that section expires without the CMA having made the decision.
2
For the purpose of section 110A(5), the time when the CMA finally decides whether to make a reference under section 22 or 33 is—
a
in a case falling within subsection (1)(a), the making of the decision that the duty to make such a reference applies;
b
in a case falling within subsection (1)(b), the acceptance of the undertaking;
c
in a case falling within subsection (1)(c), the making of the decision not to make the reference;
d
in a case falling within subsection (1)(d), the expiry of the initial period;
e
in a case falling within subsection (1)(e), the expiry of the preliminary assessment period;
f
in a case falling within subsection (1)(f), the expiry of the period in question.
3
For the purpose of section 110A(7), the Secretary of State finally decides whether to make a reference under section 45 or 62 if—
a
the Secretary of State makes such a reference;
b
the Secretary of State accepts an undertaking under paragraph 3 of Schedule 7;
c
the Secretary of State decides not to make such a reference (otherwise than because of the acceptance of an undertaking under paragraph 3 of Schedule 7);
d
the preliminary assessment period for the purposes of section 46A expires without the CMA having complied with the duty under subsection (2) of that section.
4
For the purpose of section 110A(7), the time when the Secretary of State finally decides whether to make a reference under section 45 or 62 is—
a
in a case falling within subsection (3)(a), the making of the reference;
b
in a case falling within subsection (3)(b), the acceptance of the undertaking;
c
in a case falling within subsection (3)(c), the making of the decision not to make the reference;
d
in a case falling within subsection (3)(d), the expiry of the preliminary assessment period.
5
Paragraph 7(8) to (10) of Schedule 7 applies for deciding if and when a reference under section 45(2) or (3) or 62(2) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of paragraph 7 of Schedule 7.
6
Paragraph 8(7) to (9) of Schedule 7 applies for deciding if and when a reference under section 45(4) or (5) or 62(3) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of the definition of “relevant period” in paragraph 8(6) of that Schedule.
C111C112C113C114C115C116C117C118C119C120C121C122C123C124C125C126C127C128C129C130C131C132C133C292C296C306C351C316C353C320C354C354C355C355C353111C316 Penalties
1
A penalty imposed under section 110(1) or (3) shall be of such amount as the F489CMA considers appropriate.
2
The amount may, in the case of a penalty imposed under section 110(1), be a fixed amount, an amount calculated by reference to a daily rate or a combination of a fixed amount and an amount calculated by reference to a daily rate.
3
The amount shall, in the case of a penalty imposed under section 110(3), be a fixed amount.
4
No penalty imposed under section 110(1) shall—
a
in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify;
b
in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; and
c
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify.
C354C3555
In imposing a penalty by reference to a daily rate—
a
no account shall be taken of any days before the service of the notice under section 112 on the person concerned; and
b
unless the F488CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable shall cease to accumulate at the beginning of—
i
the day on which the requirement of the notice concerned under section 109 is satisfied F490...; or
ii
if earlier, F491 the day which is the relevant day in the case in question for the purposes of section 110A.
6
No penalty imposed under section 110(3) shall exceed such amount as the Secretary of State may by order specify.
7
An order under subsection (4) or (6) shall not specify—
a
in the case of a fixed amount, an amount exceeding £30,000;
b
in the case of an amount calculated by reference to a daily rate, an amount per day exceeding £15,000; and
c
in the case of a fixed amount and an amount calculated by reference to a daily rate, a fixed amount exceeding £30,000 and an amount per day exceeding £15,000.
8
Before making an order under subsection (4) or (6) the Secretary of State shall consult the F492CMA and such other persons as he considers appropriate.
C134C135C136C137C138C139C140C141C142C143C144C145C146C147C148C149C150C151C152C153C154C155C156C157C292C297C307C351C316C317C353112C316 Penalties: main procedural requirements
1
As soon as practicable after imposing a penalty under section 110(1) or (3), the F168CMA shall give notice of the penalty.
2
The notice shall state—
a
that the F168CMA has imposed a penalty on the person concerned;
b
whether the penalty is of a fixed amount, of an amount calculated by reference to a daily rate or of both a fixed amount and an amount calculated by reference to a daily rate;
c
the amount or amounts concerned and, in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;
d
the failure or (as the case may be) the obstruction or delay which the F168CMA considers gave it the power to impose the penalty;
e
any other facts which the F168CMA considers justify the imposition of a penalty and the amount or amounts of the penalty;
f
the manner in which, and place at which, the penalty is required to be paid to the F168CMA;
g
the date or dates, no earlier than the end of the relevant period beginning with the date of service of the notice on the person concerned, by which the penalty or (as the case may be) different portions of it are required to be paid;
h
that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid; and
i
that the person concerned has the right to apply under subsection (3) below or to appeal under section 114 and the main details of those rights.
3
The person against whom the penalty was imposed may, within 14 days of the date of service on him of a notice under subsection (1), apply to the F168CMA for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.
4
A notice under this section shall be given by—
a
serving a copy of the notice on the person on whom the penalty was imposed; and
b
publishing the notice.
5
In this section “relevant period” means the period of 28 days mentioned in subsection (3) of section 114 or, if another period is specified by the Secretary of State under that subsection, that period.
C158C159C160C161C162C163C164C165C166C167C168C169C170C171C172C173C174C175C176C177C178C179C180C181C292C298C308C351C316C317C353113C316 Payments and interest by instalments
1
If the whole or any portion of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110).
2
Where an application has been made under section 112(3), the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.
3
If a portion of a penalty has not been paid by the date required for it, the F493CMA may, where it considers it appropriate to do so, require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.
4
Any sums received by the F493CMA in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.
C182C183C184C185C186C187C188C189C190C191C192C193C194C195C196C197C198C199C200C201C202C203C204C205C292C299C309C351C316C317C353114C316 Appeals in relation to penalties
1
This section applies if a person on whom a penalty is imposed under section 110(1) or (3) is aggrieved by—
a
the imposition or nature of the penalty;
b
the amount or amounts of the penalty; or
c
the date by which the penalty is required to be paid or (as the case may be) the different dates by which portions of the penalty are required to be paid.
2
The person aggrieved may apply to the Competition Appeal Tribunal.
3
If a copy of the notice under section 112(1) was served on the person on whom the penalty was imposed, the application to the Competition Appeal Tribunal shall, subject to subsection (4), be made within—
a
the period of 28 days starting with the day on which the copy was served on the person concerned; or
b
such other period as the Secretary of State may by order specify.
4
If the application relates to a decision of the F494CMA on an application by the person on whom the penalty was imposed under section 112(3), the application to the Competition Appeal Tribunal shall be made within—
a
the period of 28 days starting with the day on which the person concerned is notified of the decision; or
b
such other period as the Secretary of State may by order specify.
5
On an application under this section, the Competition Appeal Tribunal may—
a
quash the penalty;
b
substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or
c
in a case falling within subsection (1)(c), substitute for the date or dates imposed by the F494CMA an alternative date or dates;
if it considers it appropriate to do so.
6
The Competition Appeal Tribunal shall not substitute a penalty of a different nature under subsection (5)(b) unless it considers that the person on whom the penalty is imposed will, or is likely to, pay less under the substituted penalty than he would have paid under the original penalty.
7
Where an application has been made under this section—
a
the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and
b
the F495CMA may agree to reduce the amount or amounts of the penalty in settlement of the application.
8
Where the Competition Appeal Tribunal substitutes a penalty of a different nature or of a lesser amount or amounts it may require the payment of interest on the substituted penalty at such rate or rates, and from such date or dates, as it considers appropriate.
9
Where the Competition Appeal Tribunal specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers appropriate.
10
An appeal lies to the appropriate court—
a
on a point of law arising from a decision of the Tribunal in proceedings under this section; or
b
from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.
11
An appeal under subsection (10)—
a
may be brought by a party to the proceedings before the Tribunal; and
b
requires the permission of the Tribunal or the appropriate court.
12
In this section “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.
C206C207C208C209C210C211C212C213C214C215C216C217C218C219C220C221C222C223C224C225C226C227C228C229C292C300C310C351C316C317C353115C316 Recovery of penalties
Where a penalty imposed under section 110(1) or (3), or any portion of such a penalty, has not been paid by the date on which it is required to be paid and—
a
no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or
b
any such application which has been made has been determined, withdrawn or otherwise dealt with,
C230C231C232C233C234C235C236C237C238C239C240C241C242C243C244C245C246C247C248C249C250C251C252C301C311 116C316 Statement of policy
1
The F497CMA shall prepare and publish a statement of policy in relation to the enforcement of notices under section 109.
2
The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 110(1) or (3).
3
The F498CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
4
The F499CMA shall consult such persons as it considers appropriate when preparing or revising its statement of policy.
C253C254C255C256C257C258C259C260C261C262C263C264C265C266C267C268C269C270C271C272C273C274C302C312C314117C316 False or misleading information
1
A person commits an offence if—
a
he supplies any information to the F500CMA, OFCOM or the Secretary of State in connection with any of their functions under this Part;
b
the information is false or misleading in a material respect; and
c
he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.
2
A person commits an offence if he—
a
supplies any information to another person which he knows to be false or misleading in a material respect; or
b
recklessly supplies any information to another person which is false or misleading in a material respect;
knowing that the information is to be used for the purpose of supplying information to the F500CMA, OFCOM or the Secretary of State in connection with any of their functions under this Part.
3
A person who commits an offence under subsection (1) or (2) shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
Reports
C275118C356C316 Excisions from reports
1
Subsection (2) applies where the Secretary of State is under a duty to publish—
a
a report of the F501CMA under section 44 or 61;
F76aa
a report of OFCOM under section 44A or 61A; or
b
a report of the F502CMA under section 50 or 65.
2
The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.
3
In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.
C3564
The body which has prepared the report shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).
5
References in sections 38(4) and 107(11) to the giving or laying of a report of the F503CMA shall be construed as references to the giving or laying of the report as published.
C276119C316 Minority reports of F132CMA
1
2
The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
F103Further provision about media mergers
S. 119A and cross-heading inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 385, 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)
C277119AOther general functions of OFCOM in relation to this Part
1
OFCOM have the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of their functions under this Part.
2
That function is to be carried out with a view to (among other things) ensuring that OFCOM have sufficient information to take informed decisions and to carry out their other functions effectively.
3
In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research.
4
Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.
119BF77Monitoring role for F129CMA in relation to media mergers
1
The F506CMA has the function of obtaining, compiling and keeping under review information about matters which may be relevant to the Secretary of State in deciding whether to give a special intervention notice mentioning a consideration specified in section 58(2A) to (2C).
2
That function is to be carried out with a view to (among other things) ensuring that the Secretary of State is aware of cases where, in the opinion of the F506CMA, he might wish to consider giving such a notice.
3
That function does not extend to obtaining, compiling or keeping under review information with a view to carrying out a detailed analysis in each case of the operation in relation to that case of the consideration specified in section 58(2A) to (2C).
Miscellaneous
C278120C316C357 Review of decisions under Part 3
1
Any person aggrieved by a decision of the F507CMA, F78OFCOM,F508or the Secretary of State under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation may apply to the Competition Appeal Tribunal for a review of that decision.
2
For this purpose “decision”—
a
does not include a decision to impose a penalty under F509section 94A(1) or 110(1) or (3); but
b
includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.
3
Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.
4
In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.
5
The Competition Appeal Tribunal may—
a
dismiss the application or quash the whole or part of the decision to which it relates; and
C357b
where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.
C279C280C281C2936
An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.
C279C280C281C2937
An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
C279C280C281C2938
In this section—
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and
“Tribunal rules” has the meaning given by section 15(1).
121C316 Fees
1
The Secretary of State may by order require the payment to him or the F510CMA of such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the F511CMA and OFCOM of their functions under or by virtue of this Part, F79. . . and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).
2
An order under this section may, in particular, provide for fees to be payable—
a
in respect of a merger notice;F80 or
b
F81. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
on the occurrence of any event specified in the order.
3
The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—
a
the decision by the F512CMA in relation to a possible reference under section 22 or 33 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
b
the decision by the Secretary of State in relation to a possible reference under section 45 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
c
the decision by the Secretary of State in relation to a possible reference under section 62 that—
i
it is or may be the case that a special merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation; and
ii
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
d
the decision by the F512CMA in relation to a possible reference under section 32 of the Act of 1991 that it is or may be the case that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises or that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) of that section.
4
An order under this section may, in particular, contain provision—
a
for ascertaining the persons by whom fees are payable;
b
specifying whether any fee is payable to the Secretary of State or the F512CMA;
c
for the amount of any fee to be calculated by reference to matters which may include—
i
F82. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
F83. . . , the value of the turnover of the enterprises concerned;
d
as to the time when any fee is to be paid; and
e
for the repayment by the Secretary of State or the F512CMA of the whole or part of any fee in specified circumstances.
5
For the purposes of subsection (4)(c)(ii) the turnover of an enterprise shall be determined in accordance with such provisions as may be specified in an order under this section.
6
Provision made by virtue of subsection (5) may, in particular, include provision—
a
as to the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
b
as to the date or dates by reference to which an enterprise’s turnover is to be determined;
c
restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.
7
An order under this section may, in particular, in connection with provisions of the kind mentioned in subsection (5) make provision enabling the Secretary of State or the F515CMA to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (6)).
8
In determining the amount of any fees to be prescribed by an order under this section, the Secretary of State may take into account all costs incurred by him and by the F513CMA in respect of the exercise by him, the F514CMA and OFCOM of their respective functions under or by virtue of this Part F84. . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.
9
Fees paid to the Secretary of State or the F516CMA under this section shall be paid into the Consolidated Fund.
10
F85. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
122C316 Primacy of F111EU law
1
2
Advice and information published by the F517CMA by virtue of section 106(1) shall, in particular, include advice and information about the circumstances in which the duties of the F517CMA under sections 22 and 33 do not apply as a result of the F86EC Merger Regulation or anything done under or in accordance with them.
3
The duty or power to make a reference under section 22 or 45(2) or (3), and the power to give an intervention notice under section 42, shall apply in a case in which the relevant enterprises ceased to be distinct enterprises at a time or in circumstances not falling within section 24 if the condition mentioned in subsection (4) is satisfied.
4
The condition mentioned in this subsection is that, because of the F86EC Merger Regulation or anything done under or in accordance with them, the reference, or (as the case may be) the reference under section 22 to which the intervention notice relates, could not have been made earlier than 4 months before the date on which it is to be made.
5
Where the duty or power to make a reference under section 22 or 45(2) or (3), or the power to give an intervention notice under section 42, applies as mentioned in subsection (3), references in this Part to the creation of a relevant merger situation shall be construed accordingly.
123C316 Power to alter share of supply test
1
The Secretary of State may by order amend or replace the conditions which determine for the purposes of this Part whether a relevant merger situation has been created.
2
The Secretary of State shall not exercise his power under subsection (1)—
a
to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;
b
to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.
3
In exercising his power under subsection (1) to amend or replace the condition mentioned in paragraph (b) of subsection (2) of section 23 or any condition which for the time being applies instead of it, the Secretary of State shall, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength which results from the enterprises concerned having ceased to be distinct.
4
Before making an order under this section the Secretary of State shall consult the F520CMA.
5
An order under this section may provide for the delegation of functions to the decision-making authority.
Other
C282124C316 Orders and regulations under Part 3
1
Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.
2
Any power of the Secretary of State to make an order or regulations under this Part—
a
may be exercised so as to make different provision for different cases or different purposes; and
b
includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
3
The power of the Secretary of State under section 34F87, 59(6A) or 123 (including that power as extended by subsection (2) above) may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
4
The power of the Secretary of State under section F52134ZC(6), 40(8), F52241B(6),F8844(11), 52(8) (including that enactment as applied by section 65(3)), 58(3), 68F523, 73B(6),F114 94A(6) or 102 as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
5
An order made by the Secretary of State under section 28 (including that enactment as applied by section 42(5), 59(5) and 67(7)), F52434ZC(6), 40(8), F52541B(6), 52(8) (including that enactment as applied by section 65(3)), F52673B(6),F11594A(3) or (6), 111(4) or (6), 114(3)(b) or (4)(b) or 121 or Schedule 7 shall be subject to annulment in pursuance of a resolution of either House of Parliament.
6
No order shall be made by the Secretary of State under section 34, F8944(11), 59(6A), 68, 102, 123 or 128(6) unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
7
An order made by the Secretary of State under section 58(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.
8
In calculating the period of 28 days mentioned in subsection (7), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
9
If an order made by the Secretary of State ceases to have effect by virtue of subsection (7), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.
10
If, apart from this subsection, an order made by the Secretary of State under section 58(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
C283C313125C316 Offences by bodies corporate
1
Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
a person purporting to act in such a capacity,
he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.
2
Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
3
Where an offence under this Part is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, or to be attributable to any neglect on the part of a partner, he as well as the partnership commits the offence and shall be liable to be proceeded against and punished accordingly.
4
In subsection (3) “partner” includes a person purporting to act as a partner.
C284126C316 Service of documents
1
Any document required or authorised by virtue of this Part to be served on any person may be served—
a
by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;
b
if the person is a body corporate other than a limited liability partnership, by serving it in accordance with paragraph (a) on the secretary of the body;
c
if the person is a limited liability partnership, by serving it in accordance with paragraph (a) on a member of the partnership; or
d
if the person is a partnership, by serving it in accordance with paragraph (a) on a partner or a person having the control or management of the partnership business.
2
For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—
a
in the case of service on a body corporate (other than a limited liability partnership) or its secretary, it shall be the address of the registered or principal office of the body;
b
in the case of service on a limited liability partnership or a member of the partnership, it shall be the address of the registered or principal office of the partnership;
c
in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the address of the principal office of the partnership.
3
For the purposes of subsection (2) the principal office of a company constituted under the law of a country or territory outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.
4
Subsection (5) applies if a person to be served under this Part with any document by another has specified to that other an address within the United Kingdom other than his proper address (as determined under subsection (2)) as the one at which he or someone on his behalf will accept documents of the same description as that document.
5
In relation to that document, that address shall be treated as his proper address for the purposes of this section and section 7 of the Interpretation Act 1978 in its application to this section, instead of that determined under subsection (2).
6
Any notice in writing or other document required or authorised by virtue of this Part to be served on any person may be served on that person by transmitting the text of the notice or other document to him by means of F90an electronic communications network or by other means but while in electronic form provided the text is received by that person in legible form and is capable of being used for subsequent reference.
7
This section does not apply to any document if rules of court make provision about its service.
8
In this section references to serving include references to similar expressions (such as giving or sending).
C285C286127C316 Associated persons
1
Associated persons, and any bodies corporate which they or any of them control, shall be treated as one person—
a
for the purpose of deciding under section 26 whether any two enterprises have been brought under common ownership or common control;
F91aa
for the purposes of section 58(2C); and
b
for the purpose of determining what activities are carried on by way of business by any one person so far as that question arises in connection with paragraph 13(2) of Schedule 8.
2
Subsection (1) shall not exclude from section 26 any case which would otherwise fall within that section.
3
A reference under section 22, 33, 45 or 62 (whether or not made by virtue of this section) may be framed so as to exclude from consideration, either altogether or for a specified purpose or to a specified extent, any matter which, apart from this section, would not have been taken into account on that reference.
4
For the purposes of this section—
a
b
any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;
c
persons carrying on business in partnership and the spouse F92, civil partner or partner and relatives of any of them; or
d
two or more persons acting together to secure or exercise control of a body of persons corporate or unincorporate or to secure control of any enterprise or assets,
shall be regarded as associated with one another.
5
The reference in subsection (1) to bodies corporate which associated persons control shall be construed in accordance with section 26(3) and (4).
6
In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild of any person, or anyone adopted by a person, whether legally or otherwise, as his child being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a spouse F92, civil partner or partner shall include a former spouse F92, civil partner or partner.
C287128C316 Supply of services and market for services etc.
1
References in this Part to the supply of services shall be construed in accordance with this section; and references in this Part to a market for services and other related expressions shall be construed accordingly.
2
The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.
3
The supply of services includes—
a
performing for gain or reward any activity other than the supply of goods;
b
rendering services to order;
c
the provision of services by making them available to potential users.
4
The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.
5
The supply of services includes making arrangements by means of a relevant agreement (within the meaning of F93paragraph 29 of Schedule 2 to the Telecommunications Act 1984 for sharing the use of telecommunications apparatus.
6
The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State may by order specify.
C288129C316 Other interpretation provisions
1
In this Part, unless the context otherwise requires—
“action” includes omission; and references to the taking of action include references to refraining from action;
“agreement” means any agreement or arrangement, in whatever way and whatever form it is made, and whether it is, or is intended to be, legally enforceable or not;
“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;
“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;
“F111EU law” means—
- a
all the rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and
- b
all the remedies and procedures from time to time provided for by or under the Community Treaties;
- a
“consumer” means any person who is—
- a
a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or
- b
a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;
and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
- a
“customer” includes a customer who is not a consumer;
F94“the EC Merger Regulation” means Council Regulation (EC) No 139/2004 of 20th January 2004 on the control of concentrations between undertakings;
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
“enterprise” means the activities, or part of the activities, of a business;
F95“the European Merger Regulations” means Council Regulation(EEC)No.4064/89of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation(EC)No.1310/97of 30th June 1997;“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;
“modify” includes amend or repeal;
“notice” means notice in writing;
“price” includes any charge or fee (however described);
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;
“subsidiary” has the meaning given by F110section 1159 of the Companies Act 2006 (c. 6);
“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person;
F105“the UK financial system” means the financial system in the United Kingdom; and
“United Kingdom national” means an individual who is—
- a
a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
- b
a person who under the British Nationality Act 1981 (c. 61) is a British subject; or
- c
a British protected person within the meaning of that Act.
- a
2
For the purposes of this Part any two bodies corporate are interconnected if—
a
one of them is a body corporate of which the other is a subsidiary; or
b
both of them are subsidiaries of one and the same body corporate;
and in this Part “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.
3
References in this Part to a person carrying on business include references to a person carrying on business in partnership with one or more other persons.
4
Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as he considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.
130C316 Index of defined expressions
In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.
Expression | Provision of this Act |
Action (and the taking of action) | Section 129(1) |
Adverse public interest finding | Section 54(3) |
Agreement | Section 129(1) |
Anti-competitive outcome | Section 35(2) |
F96Broadcasting | Section 44(9) |
Business (and carrying on business) | Section 129(1) and (3) |
Change of circumstances | Section 129(1) |
F528. . . | F528. . . |
F527The CMA | Section 273 |
F111EU law | Section 129(1) |
Consumer | Section 129(1) |
Customer | Section 129(1) |
Date of reference | Section 39(9) |
The decision-making authority | Section 22(7) |
F97EC Merger Regulation | Section 129(1) |
Enactment | Section 129(1) |
Enforcement order | Section 86(6) |
Enforcement undertaking | Section 89(2) |
Enterprise | Section 129(1) |
Enterprises ceasing to be distinct | Section 26(1) |
|
|
Final determination of matter to which intervention notice relates | Section 43(4) and (5) |
Final determination of matter to which special intervention notice relates | Section 60(4) and (5) |
Final determination of reference under section 22 or 33 | Section 79(1) and (2) |
Goods | Section 129(1) |
Interconnected bodies corporate (and a group of interconnected bodies corporate) | Section 129(2) |
Intervention notice | Section 42(2) |
Market for goods or services | Section 22(6) |
Market in the United Kingdom | Section 22(6) |
F99Media public interest consideration | Section 44(8) |
Merger notice | Section 96(2) |
Modify | Section 129(1) |
F100Newspaper | Section 44(10) |
F101Newspaper enterprise | Section 58A(3) |
Notice | Section 129(1) |
Notified arrangements | Section 96(6) |
F102OFCOM | Section 43(6) |
F528. . . | F528. . . |
Orders under section 81 | Section 81(6) |
Orders under paragraph 2 of Schedule 7 | Paragraph 2(7) of Schedule 7 |
The period for considering a merger notice | Sections 97 and 98 |
Price | Section 129(1) |
Public interest consideration | Sections 42(3) and 67(9) |
Public interest consideration being finalised | Section 42(8) |
Publish | Section 129(4) |
References under section 22, 33, 45 or 62 | Sections 37(2), 49(1), 56(8) and 64(2) |
Relevant customer benefit | Section 30 |
Relevant merger situation | Section 23 (as read with other enactments) |
Reports of the F529CMA | Section 118(5) |
Special intervention notice | Section 59(2) |
Special merger situation | Section 59(3) |
Subordinate legislation | Section 129(1) |
Subsidiary | Section 129(1) |
Supply (in relation to the supply of goods) | Section 129(1) |
The supply of services (and a market for services etc.) | Section 128 |
The turnover in the United Kingdom of an enterprise | Section 28(2) |
F106The UK financial system | F107Section 129(1) |
Undertakings under section 80 | Section 80(6) |
F530. . . | F530. . . |
United Kingdom national | Section 129(1) |
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