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Enterprise Act 2002

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Consultation, information and publicityU.K.

169 Certain duties of relevant authorities to consult: Part 4U.K.

(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 have a substantial impact on the interests of any person.

(2)The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision.

(3)In consulting the person 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 [F1CMA, the appropriate Minister] [F2or the Secretary of State]; and

  • relevant decision” means—

    (a)

    in the case of the [F3CMA], any decision by the [F3CMA]

    (i)

    [F4to make a reference under section 131 in a case where the CMA has not published a market study notice under section 130A in relation to the matter concerned;

    (ia)

    as to whether to accept undertakings under section 154 instead of making any reference under section 131;]

    (ii)

    to vary under section 135 such a reference[F5; or—

    (iii)

    on the questions mentioned in section 134, 141 or 141A; and]

    (b)

    in the case of the appropriate Minister [F6(other than the Secretary of State acting alone)], any decision by the appropriate Minister—

    (i)

    F7... to make a reference under section 132; or

    (ii)

    to vary under section 135 such a reference; F8...

    [F9in the case of the Secretary of State, any decision by the Secretary of State—

    (i)

    to make a reference under section 132;

    (ii)

    to vary under section 135 such a reference;

    (iii)

    in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or

    (iv)

    to vary under section 140B a reference made under section 140A(6).]

    (c)

    F8...

Textual Amendments

170 General information dutiesU.K.

F10(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The [F11CMA] shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—

(a)such information in [F12its possession] as the Secretary of State or (as the case may be) the appropriate Minister concerned 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 or (as the case may be) the appropriate Minister concerned 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 [F13CMA] or (as the case may be) the Commission to give.

(4)The [F14CMA] shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone any information in its possession which has not been requested by the Secretary of State or (as the case may be) the appropriate Minister concerned but which, in the opinion of the [F14CMA], would be appropriate to give to the Secretary of State or (as the case may be) the appropriate Minister concerned for the purpose of assisting him in carrying out his functions under this Part.

(5)[F15The Secretary of State] or (as the case may be) the appropriate Minister concerned shall have regard to any information given to him under subsection (3) or (4).

(6)Any direction given under subsection (3)—

(a)shall be in writing; and

(b)may be varied or revoked by a subsequent direction.

171 Advice and information: Part 4U.K.

(1)F16... [F17The CMA] shall prepare and publish general advice and information about [F18

(a)the making and consideration by it of market investigation references, and

(b)the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.]

(2)The [F19CMA] may at any time publish revised, or new, advice or information.

F20(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F21CMA] expects such provisions to operate.

F22(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Advice (or information) published by virtue of subsection (1) F23... may include advice (or information) about the factors which the [F24CMA] may take into account in considering whether, and if so how, to exercise a function conferred by this Part.

(8)Any advice or information published by the [F25CMA] under this section shall be published in such manner as the [F26CMA] considers appropriate.

(9)In preparing any advice or information under this section, the [F27 CMA shall consult such persons] and such other persons as it considers appropriate.

F28(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F29(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

172 Further publicity requirements: Part 4U.K.

(1)The [F30CMA] shall publish—

(a)any reference made by it under section 131[F31, other than a reference treated as so made by virtue of section 140A(5)(b)];

[F32(aa)any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;]

(b)any variation made by it under section 135 of a reference under section 131;

(c)any decision of a kind mentioned in section 149(5)(b); and

(d)such information as it considers appropriate about any decision made by it under section 152(1) to bring a case to the attention of the Secretary of State.

(2)The [F33CMA shall also] publish—

[F34(za)any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published;

(zb)any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;]

(a)any decision made by it under section 138(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

(b)any decision made by it that there has been a material change of circumstances as mentioned in section 138(3) or there is another special reason as mentioned in that section;

[F35(ba)any extension by it under section 144 of the period within which a report under section 142 is to be prepared and action is to be taken in relation to it;]

(c)any termination under section 145(1) of an investigation by it;

F36(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)any enforcement undertaking accepted by it under section 157;

(f)any enforcement order made by it under section 158; and

(g)any variation, release or revocation of such an undertaking or order.

(3)The Secretary of State shall publish—

(a)any reference made by him under section 132;

(b)any variation made by him under section 135 of a reference under section 132;

(c)any intervention notice given by him;

(d)any decision made by him to revoke such a notice;

[F37(da)any reference made by him under section 140A(5) or (6);

(db)any variation made by him under section 140B of a reference under section 140A(6);]

(e)any decision made by him under section 147(2) [F38or (as the case may be) 147A(2)] neither to accept an undertaking under section 159 nor to make an order under section 161;

(f)any enforcement undertaking accepted by him under section 157;

(g)any variation or release of such an undertaking; and

(h)any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

(4)The appropriate Minister (other than the Secretary of State acting alone) shall publish—

(a)any reference made by him under section 132;

(b)any variation made by him under section 135 of a reference under section 132; and

(c)any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

(5)Where any person is under an obligation by virtue of subsection (1), (2), (3) or (4) 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 (6) and (7), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.

(6)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.

(7)Subsections (5) and (6) shall not apply in relation to any case falling within subsection (1)(d) F39....

[F40(7A)Subsection (6) shall not apply in relation to any case falling within subsection (1)(a)] [F41or (3)(da)].

(8)The Secretary of State shall publish his reasons for—

(a)any decision made by him under section 146(2) [F42or 146A(2)]; or

(b)any decision to make an order under section 153(3) or vary or revoke such an order.

(9)Such reasons may be published after—

(a)in the case of subsection (8)(a), the publication of the decision concerned; and

(b)in the case of subsection (8)(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.

(10)Where the Secretary of State has decided under section 147(2) [F43or 147A(2)] to accept an undertaking under section 159 or to make an order under section 161, 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 [F44CMA's] report under section 142, before each House of Parliament.

Textual Amendments

173 Defamation: Part 4U.K.

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 [F45CMA], [F46by the Secretary of State or], by the appropriate Minister (other than the Secretary of State acting alone) F47... in the exercise of any of their functions under this Part.

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