Enterprise Act 2002

MiscellaneousU.K.

120 Review of decisions under Part 3U.K.

(1)Any person aggrieved by a decision [F1mentioned in subsection (1A)] may apply to the Competition Appeal Tribunal for a review of that decision.

[F2(1A)The decisions are—

(a)a decision of the CMA, OFCOM or 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;

(b)a decision of the CMA under this Part in connection with transferred EU merger commitments.]

(2)For this purpose “decision”—

(a)does not include a decision to impose a penalty under [F3section 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 [F4or transferred EU merger commitments].

(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

(b)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.

(6)An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

(7)An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

(8)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).

121 FeesU.K.

(1)The Secretary of State may by order require the payment to him or the [F5CMA of] such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the [F6CMA and OFCOM] of their functions under or by virtue of this Part, F7. . . 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;[F8 or]

(b)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F10CMA] in relation to a possible reference under section 22 [F11, 33, 68B or 68C] 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 [F10CMA] 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 [F10CMA];

(c)for the amount of any fee to be calculated by reference to matters which may include—

(i)F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)F13. . . , 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 [F10CMA] 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 [F14CMA] 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 [F15CMA in] respect of the exercise by him, the [F16CMA and OFCOM] of their respective functions under or by virtue of this Part F17. . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.

(9)Fees paid to the Secretary of State or the [F18CMA] under this section shall be paid into the Consolidated Fund.

(10)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21122 Primacy of [F20EU] lawU.K.

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123 Power to alter share of supply testU.K.

(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 [F22CMA].

(5)An order under this section may provide for the delegation of functions to the decision-making authority.