Enterprise Act 2002

Making of references

131Power of OFT to make references

(1)The OFT may, subject to subsection (4), make a reference to the Commission if the OFT has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2)For the purposes of this Part any reference to a feature of a market in the United Kingdom for goods or services shall be construed as a reference to—

(a)the structure of the market concerned or any aspect of that structure;

(b)any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or

(c)any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services.

(3)In subsection (2) “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.

(4)No reference shall be made under this section if—

(a)the making of the reference is prevented by section 156(1); or

(b)a reference has been made under section 132 in relation to the same matter but has not been finally determined.

(5)References in this Part to a market investigation reference being finally determined shall be construed in accordance with section 183(3) to (6).

(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;

• “market investigation reference” means a reference under this section or section 132;

and references to a market for goods or services include references to a market for goods and services.

132Ministerial power to make references

(1)Subsection (3) applies where, in relation to any goods or services, the appropriate Minister is not satisfied with a decision of the OFT not to make a reference under section 131.

(2)Subsection (3) also applies where, in relation to any goods or services, the appropriate Minister—

(a)has brought to the attention of the OFT information which the appropriate Minister considers to be relevant to the question of whether the OFT should make a reference under section 131; but

(b)is not satisfied that the OFT will decide, within such period as the appropriate Minister considers to be reasonable, whether to make such a reference.

(3)The appropriate Minister may, subject to subsection (4), make a reference to the Commission if he has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(4)No reference shall be made under this section if the making of the reference is prevented by section 156(1).

(5)In this Part “the appropriate Minister” means—

(a)the Secretary of State; or

(b)the Secretary of State and one or more than one other Minister of the Crown acting jointly.

133Contents of references

(1)A market investigation reference shall, in particular, specify—

(a)the enactment under which it is made;

(b)the date on which it is made; and

(c)the description of goods or services to which the feature or combination of features concerned relates.

(2)A market investigation reference may be framed so as to require the Commission to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of features of such of those markets as exist in connection with—

(a)a supply, of a description specified in the reference, of the goods or services concerned; or

(b)an acquisition, of a description specified in the reference, of the goods or services concerned.

(3)A description of the kind mentioned in subsection (2)(a) or (b) may, in particular, be by reference to—

(a)the place where the goods or services are supplied or acquired; or

(b)the persons by or to whom they are supplied or by or from whom they are acquired.