Enterprise Act 2002

100Exceptions to protection given by merger notices

(1)Section 96(3) does not prevent any reference being made to the Commission if—

(a)before the end of the period for considering the merger notice, the OFT rejects the notice under section 99(5);

(b)before the end of that period, any of the enterprises to which the notified arrangements relate cease to be distinct from each other;

(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;

is not disclosed to the OFT by such time before the end of that period as may be specified in regulations under section 101;

(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 the period for considering 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(f)the merger notice is withdrawn; or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 section 22, 33 or 45 as having occurred simultaneously on a particular date; and

(b)section 96(3) does not prevent such a reference in relation to the last of those transactions.

(3)Section 96(3) does 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.