WIPO Lex

The Enterprise Act 2002 (Chapter 40, updated up to November 26, 2020)

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Enterprise Act 2002. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Enterprise Act 2002 2002 CHAPTER 40

An Act to establish and provide for the functions of the Office of Fair Trading, the Competition Appeal Tribunal and the Competition Service; to make provision about mergers and market structures and conduct; to amend the constitution and functions of the Competition Commission; to create an offence for those entering into certain anti-competitive agreements; to provide for the disqualification of directors of companies engaging in certain anti-competitive practices; to make other provision about competition law; to amend the law relating to the protection of the collective interests of consumers; to make further provision about the disclosure of information obtained under competition and consumer legislation; to amend the Insolvency Act 1986 and make other provision about insolvency; and for connected purposes. [7th November 2002]

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text) C1 Act modified in part (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 60(3), 110(1) (with ss. 60(4),

77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)

PART 1

[F1GENERAL FUNCTIONS OF THE CMA]

Textual Amendments F1 Pt. 1 title substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

5 para. 65 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

2 Enterprise Act 2002 (c. 40) Part 1 – General functions of the CMA

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Enterprise Act 2002. Any changes that have already been made by the team appear in the content

and are referenced with annotations. (See end of Document for details) View outstanding changes

Modifications etc. (not altering text) C2 Pt. 1 function transferred (28.3.2013) by The Public Bodies (The Office of Fair Trading Transfer of

Consumer Advice Scheme Function and Modification of Enforcement Functions) Order 2013 (S.I. 2013/783), arts. 1(2), 2 (with arts. 2(3), 4)

F2...

Textual Amendments F2 S. 1 cross-heading omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 229 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F3 Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F32 The Director General of Fair Trading

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F3 Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F33 Annual plan

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F3 Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F34 Annual and other reports

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enterprise Act 2002 (c. 40) Part 1 – General functions of the CMA Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F3 Ss. 1-4 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 229 (with savings in s. 28 and S.I. 2014/892, art. 3(7)); S.I. 2014/416, art. 2(1)(d) (with Sch.)

General functions of [F4the CMA]

Textual Amendments F4 Words in s. 5 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 60(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

5 Acquisition of information etc.

(1) The [F5CMA] has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.

(2) That function is to be carried out with a view to (among other things) ensuring that the [F6CMA] has sufficient information to take informed decisions and to carry out its other functions effectively.

(3) In carrying out that function the [F6CMA] may carry out, commission or support (financially or otherwise) research.

Textual Amendments F5 Word in s. 5(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 60(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F6 Word in s. 5(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 60(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

6 Provision of information etc. to the public

(1) The [F7CMA] has the function of— (a) making the public aware of the ways in which competition may benefit

consumers in, and the economy of, the United Kingdom; and (b) giving information or advice in respect of matters relating to any of its

functions to the public.

(2) In carrying out those functions the [F7CMA] may— (a) publish educational materials or carry out other educational activities; or (b) support (financially or otherwise) the carrying out by others of such activities

or the provision by others of information or advice.

Textual Amendments F7 Word in s. 6(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 61 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

4 Enterprise Act 2002 (c. 40) Part 1 – General functions of the CMA

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

7 Provision of information and advice to Ministers etc.

(1) The [F8CMA] has the function of— (a) making proposals, or (b) giving other information or advice,

on matters relating to any of its functions to any Minister of the Crown or other public authority (including proposals, information or advice as to any aspect of the law or a proposed change in the law).

[F9(1A) The CMA may, in particular, carry out the function under subsection (1)(a) by making a proposal in the form of a recommendation to a Minister of the Crown about the potential effect of a proposal for Westminster legislation on competition within any market or markets in the United Kingdom for goods or services.

(1B) The CMA must publish such a recommendation in such manner as the CMA considers appropriate for bringing the subject matter of the recommendation to the attention of those likely to be affected by it.]

(2) A Minister of the Crown may request the [F10CMA] to make proposals or give other information or advice on any matter relating to any of its functions; and the [F10CMA] shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.

[F11(3) In this section— “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 the reference to a market for goods or services includes a reference to a market for goods and services; and

“Westminster legislation” means— (a) an Act of Parliament, or (b) subordinate legislation (within the meaning given by section 21 of the

Interpretation Act 1978).]

Textual Amendments F8 Word in s. 7(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 62(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F9 S. 7(1A)(1B) inserted (26.5.2015) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss.

37(2), 164(3)(b)(iii) F10 Word in s. 7(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 62(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F11 S. 7(3) inserted (26.5.2015) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss.

37(3), 164(3)(b)(iii)

F128 Promoting good consumer practice

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enterprise Act 2002 (c. 40) Part 1 – General functions of the CMA Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F12 S. 8 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 63 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F138A Exclusion of public consumer advice scheme

The [F14CMA] may not under this Part support a public consumer advice scheme, where that support of a scheme consists of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them.]

Textual Amendments F13 S. 8A inserted (28.3.2013) by The Public Bodies (The Office of Fair Trading Transfer of Consumer

Advice Scheme Function and Modification of Enforcement Functions) Order 2013 (S.I. 2013/783), arts. 1(2), 3

F14 Word in s. 8A substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 2 (with art. 3)

Miscellaneous

9 Repeal of certain powers of direction

Section 12 of the Fair Trading Act 1973 (c. 41) (in this Act referred to as “the 1973 Act”) and section 13 of the Competition Act 1980 (c. 21) (powers of Secretary of State to give directions) shall cease to have effect.

10 Part 2 of the 1973 Act

(1) The following provisions of the 1973 Act shall cease to have effect— (a) section 3 and Schedule 2 (which establish, and make provision with respect

to, the Consumer Protection Advisory Committee); (b) sections 13 to 21 (which relate to references made to, and reports of, that

Committee); and (c) section 22 (power of Secretary of State to make orders in pursuance of a report

of that Committee). F15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—

(a) repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and

(b) make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.

(4) An order under subsection (3)—

6 Enterprise Act 2002 (c. 40) Part 1 – General functions of the CMA

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

(a) may make transitional or saving provision in connection with any modification made by the order; and

(b) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments F15 S. 10(2) repealed (26.5.2008) by The Consumer Protection from Unfair Trading Regulations 2008 (S.I.

2008/1277), reg. 1, Sch. 2 para. 69, Sch. 4 Pt. 1 (with reg. 28(2)(3))

11 Super-complaints to OFT

(1) This section applies where a designated consumer body makes a complaint to the [F16CMA] that any feature, or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.

(2) The [F16CMA] must, within 90 days after the day on which it receives the complaint, publish a response stating how it proposes to deal with the complaint, and in particular—

(a) whether it has decided to take any action, or to take no action, in response to the complaint, and

(b) if it has decided to take action, what action it proposes to take.

(3) The response must state the [F17CMA's] reasons for its proposals.

(4) The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.

(5) “Designated consumer body” means a body designated by the Secretary of State by order.

(6) The Secretary of State— (a) may designate a body only if it appears to him to represent the interests of

consumers of any description, and (b) must publish (and may from time to time vary) other criteria to be applied by

him in determining whether to make or revoke a designation.

(7) The [F18CMA] — (a) must issue guidance as to the presentation by the complainant of a reasoned

case for the complaint, and (b) may issue such other guidance as appears to it to be appropriate for the

purposes of this section.

(8) An order under this section— (a) shall be made by statutory instrument, and (b) shall be subject to annulment in pursuance of a resolution of either House of

Parliament.

(9) In this section— (a) references to a feature of a market in the United Kingdom for goods or services

have the same meaning as if contained in Part 4, and

Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) “consumer” means an individual who is a consumer within the meaning of that Part.

Textual Amendments F16 Word in s. 11(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 64(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F17 Word in s. 11(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 64(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F18 Word in s. 11(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 64(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C3 S. 11 (except s. 11(7)(a)) applied in part (20.6.2003) by The Enterprise Act 2002 (Super-complaints to

Regulators) Order 2003 (S.I. 2003/1368), art. 2

PART 2

THE COMPETITION APPEAL TRIBUNAL

The Competition Appeal Tribunal

12 The Competition Appeal Tribunal

(1) There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).

(2) The Tribunal shall consist of— (a) a person appointed by the Lord Chancellor to preside over the Tribunal (in

this Part referred to as “the President”); [F19(aa) such judges as are nominated from time to time by the Lord Chief Justice of

England and Wales from the High Court of England and Wales; (ab) such judges as are nominated from time to time by the Lord President of the

Court of Session from the judges of the Court of Session; (ac) such judges as are nominated from time to time by the Lord Chief Justice of

Northern Ireland from the High Court in Northern Ireland;] (b) members appointed by the Lord Chancellor to form a panel of chairmen; and (c) members appointed by the Secretary of State to form a panel of ordinary

members.

(3) The Tribunal shall have a Registrar appointed by the Secretary of State.

(4) The expenses of the Tribunal shall be paid by the Competition Service.

(5) Schedule 2 (which makes further provision about the Tribunal) has effect.

Textual Amendments F19 S. 12(2)(aa)-(ac) inserted (27.5.2015) by Consumer Rights Act 2015 (c. 15), ss. 82(1), 100(5); S.I.

2015/1333, art. 2(b)

8 Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

13 The Competition Service

(1) There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).

(2) The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.

(3) In subsection (2) “support services” includes the provision of staff, accommodation and equipment and any other services which facilitate the carrying out by the Tribunal of its functions.

(4) The activities of the Service are not carried out on behalf of the Crown (and its property is not to be regarded as held on behalf of the Crown).

(5) The Secretary of State shall pay to the Service such sums as he considers appropriate to enable it to fund the activities of the Tribunal and to carry out its other activities.

(6) Schedule 3 (which makes further provision about the Service) has effect.

Commencement Information I1 S. 13 wholly in force at 1.4.2003; s. 13 not in force at Royal Assent see s. 279; s. 13(6) in force for

certain purposes at 18.3.2003 by S.I. 2003/765, art. 2, Sch., s. 13 in force at 1.4.2003 by S.I. 2003/766, art. 2, Sch.

14 Constitution of Tribunal for particular proceedings and its decisions

(1) For the purposes of any proceedings before it[F20, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act,] the Tribunal shall consist of a chairman and two other members.

[F21(1A) But in the case of proceedings relating to a claim under section 47A of the 1998 Act which is subject to the fast-track procedure (as described in Tribunal rules), the Tribunal may consist of a chairman only.]

(2) The chairman must be the President[F22, a judge within any of paragraphs (aa) to (ac) of section 12(2)] or a member of the panel of chairmen.

(3) The other members may be chosen from [F23the judges within paragraphs (aa) to (ac) of section 12(2),] the panel of chairmen or the panel of ordinary members.

(4) If the members of the Tribunal as constituted in accordance with this section are unable to agree on any decision, the decision is to be taken by majority vote.

(5) This section has effect subject to [F24paragraphs 10A(1)(a) and 18] of Schedule 4 (consequences of a member of the Tribunal being unable to continue after the proceedings have begun to be heard).

(6) Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.

Textual Amendments F20 Words in s. 14(1) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 8 para.

19(2); S.I. 2015/1630, art. 3(j)

Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F21 S. 14(1A) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 8 para. 19(3); S.I. 2015/1630, art. 3(j)

F22 Words in s. 14(2) inserted (27.5.2015) by Consumer Rights Act 2015 (c. 15), ss. 82(2)(a), 100(5); S.I. 2015/1333, art. 2(b)

F23 Words in s. 14(3) substituted (27.5.2015) by Consumer Rights Act 2015 (c. 15), ss. 82(2)(b), 100(5); S.I. 2015/1333, art. 2(b)

F24 Words in s. 14(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 48(6), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Modifications etc. (not altering text) C4 S. 14 applied (1.5.2009 for specified purposes, 1.11.2009 in so far as not already in force) by The

Payment Services Regulations 2009 (S.I. 2009/209), reg. 1(2)(b)(c), 106 (with reg. 3)

Commencement Information I2 S. 14 wholly in force at 20.6.2003; s. 14 not in force at Royal Assent see s. 279; s. 14(1)-(5) in force

and s. 14(6) in force for certain purposes at 1.4.2003 by S.I. 2003/766, art. 2, Sch., s. 14(6) in force for remaining purposes at 20.6.2003 by S.I. 2003/1397, art. 2, Sch.

15 Tribunal rules

(1) The Secretary of State may, after consulting the President and such other persons as he considers appropriate, make rules (in this Part referred to as “Tribunal rules”) with respect to proceedings before the Tribunal[F25, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act.]

(2) Tribunal rules may make provision with respect to matters incidental to or consequential upon appeals provided for by or under any Act to the Court of Appeal or the Court of Session in relation to a decision of the Tribunal.

(3) Tribunal rules may— (a) specify qualifications for appointment as Registrar; (b) confer functions on the President or the Registrar in relation to proceedings

before the Tribunal; and (c) contain incidental, supplemental, consequential or transitional provision.

(4) The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).

Textual Amendments F25 Words in s. 15(1) inserted (3.8.2015 for specified purposes, 1.10.2015 in so far as not already in

force) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 8 para. 20; S.I. 2015/1584, art. 3(c); S.I. 2015/1630, art. 3(j)

Modifications etc. (not altering text) C5 S. 15 applied (1.5.2009 for specified purposes, 1.11.2009 in so far as not already in force) by The

Payment Services Regulations 2009 (S.I. 2009/209), reg. 1(2)(b)(c), 106 (with reg. 3)

10 Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

16 Transfers of certain proceedings to and from Tribunal

(1) The Lord Chancellor may by regulations— (a) make provision enabling the court—

(i) to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and

(ii) to give effect to the determination of that issue by the Tribunal; and (b) make such incidental, supplementary, consequential, transitional or saving

provision as the Lord Chancellor may consider appropriate.

(2) The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).

(4) The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.

(5) Rules of court may make provision in connection with the transfer from the Tribunal to the [F26court of all or any part of] a claim made in proceedings under section 47A of the 1998 Act.

(6) In this section— “the court” means—

(a) the High Court [F27or the county court]; or (b) the Court of Session or a sheriff court; and

“infringement issue” means any question relating to whether or not an infringement of —

(a) the Chapter I prohibition or the Chapter II prohibition; or (b) [F28Article 101 or 102] of the Treaty,

has been or is being committed; but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part.

Textual Amendments F26 Words in s. 16(5) substituted (3.8.2015 for specified purposes, 1.10.2015 in so far as not already in

force) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 8 para. 21; S.I. 2015/1584, art. 3(c); S.I. 2015/1630, art. 3(j)

F27 Words in s. 16(6) inserted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 81(a); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F28 Words in s. 16(6) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Proceedings under Part 1 of 1998 Act

17 Third party appeals

For section 47 of the 1998 Act (third party appeals) there is substituted—

“47 Third party appeals

(1) A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed.

(2) A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest.

(3) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.”

18 Monetary claims

(1) After section 47 of the 1998 Act there is inserted—

“47A Monetary claims before Tribunal

(1) This section applies to— (a) any claim for damages, or3 (b) any other claim for a sum of money,

which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

(2) In this section “relevant prohibition” means any of the following— (a) the Chapter I prohibition; (b) the Chapter II prohibition; (c) the prohibition in Article 81(1) of the Treaty; (d) the prohibition in Article 82 of the Treaty; (e) the prohibition in Article 65(1) of the Treaty establishing the

[F29European Union] ; (f) the prohibition in Article 66(7) of that Treaty.

(3) For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.

(4) A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.

(5) But no claim may be made in such proceedings— (a) until a decision mentioned in subsection (6) has established that the

relevant prohibition in question has been infringed; and

12 Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

(b) otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.

(6) The decisions which may be relied on for the purposes of proceedings under this section are —

(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b) a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c) a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(d) a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or

(e) a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the [F29European Union] has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.

(7) The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—

(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b) in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;

(c) in the case of a decision of the Tribunal mentioned in subsection (6) (c), the period during which a further appeal may be made under section 49 or under those Regulations;

(d) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.

(8) The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—

(a) the period during which proceedings against the decision or finding may be instituted in the European Court; and

(b) if any such proceedings are instituted, the period before those proceedings are determined.

(9) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.

Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(10) The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.”

(2) Section 47A applies to claims arising before the commencement of this section as it applies to claims arising after that time.

Textual Amendments F29 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 4 (with art. 3(2)(3), 4(2), 6(4)(5))

19 Claims on behalf of consumers

After section 47A of the 1998 Act (which is inserted by section 18), there is inserted—

“47B Claims brought on behalf of consumers

(1) A specified body may (subject to the provisions of this Act and Tribunal rules) bring proceedings before the Tribunal which comprise consumer claims made or continued on behalf of at least two individuals.

(2) In this section “consumer claim” means a claim to which section 47A applies which an individual has in respect of an infringement affecting (directly or indirectly) goods or services to which subsection (7) applies.

(3) A consumer claim may be included in proceedings under this section if it is— (a) a claim made in the proceedings on behalf of the individual concerned

by the specified body; or (b) a claim made by the individual concerned under section 47A which is

continued in the proceedings on his behalf by the specified body; and such a claim may only be made or continued in the proceedings with the consent of the individual concerned.

(4) The consumer claims included in proceedings under this section must all relate to the same infringement.

(5) The provisions of section 47A(5) to (10) apply to a consumer claim included in proceedings under this section as they apply to a claim made in proceedings under that section.

(6) Any damages or other sum (not being costs or expenses) awarded in respect of a consumer claim included in proceedings under this section must be awarded to the individual concerned; but the Tribunal may, with the consent of the specified body and the individual, order that the sum awarded must be paid to the specified body (acting on behalf of the individual).

(7) This subsection applies to goods or services which— (a) the individual received, or sought to receive, otherwise than in the

course of a business carried on by him (notwithstanding that he received or sought to receive them with a view to carrying on a business); and

14 Enterprise Act 2002 (c. 40) Part 2 – The Competition Appeal Tribunal

Document Generated: 2021-02-16 Status: This version of this Act contains provisions that are prospective.

and are referenced with annotations. (See end of Document for details) View outstanding changes

(b) were, or would have been, supplied to the individual (in the case of goods whether by way of sale or otherwise) in the course of a business carried on by the person who supplied or would have supplied them.

(8) A business includes— (a) a professional practice; (b) any other undertaking carried on for gain or reward; (c) any undertaking in the course of which goods or services are supplied

otherwise than free of charge.

(9) “Specified” means specified in an order made by the Secretary of State, in accordance with criteria to be published by the Secretary of State for the purposes of this section.

(10) An application by a body to be specified in an order under this section is to be made in a form approved by the Secretary of State for the purpose.”

Other amendments of 1998 Act

20 Findings of infringements

(1) After section 58 of the 1998 Act there is inserted—

“Findings of infringements

58A Findings of infringements

(1) This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—

(a) the Chapter I prohibition; (b) the Chapter II prohibition; (c) the prohibition in Article 81(1) of the Treaty; (d) the prohibition in Article 82 of the Treaty.

(2) In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.

(3) The decisions are— (a) a decision of the OFT that the Chapter I prohibition or the Chapter II

prohibition has been infringed; (b) a decision of the OFT that the prohibition in Article 81(1) or Article

82 of the Treaty has been infringed; (c) a decision of the Tribunal (on an appeal from a decision of the OFT)

that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.

(4) The periods mentioned in subsection (2) are— (a) in the case of a decision of the OFT, the period during which an

appeal may be made to the Tribunal under section 46 or 47 or the

Enterprise Act 2002 (c. 40) Part 3 – Mergers Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b) in the case of a decision of the Tribunal mentioned in subsection (3) (c), the period during which a further appeal may be made under section 49 or under those Regulations;

(c) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.”

(2) Section 58A does not apply in relation to decisions made before the commencement of this section.

(3) In section 59(1) of that Act (interpretation), in the definition of “the court”, after “58” there is inserted “ , 58A ”.

21 Amendment of 1998 Act relating to the Tribunal

Schedule 5 (which contains amendments of the 1998 Act relating to, and to the proceedings of, the Tribunal) has effect.

F30PART 3

MERGERS

Textual Amendments F30 Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations

2004 (S.I. 2004/3202), regs. 2-35 (as amended (18.12.2015) by The Water Mergers (Miscellaneous Amendments) Regulations 2015 (S.I. 2015/1936), regs. 1, 3-20)

Modifications etc. (not altering text) C6 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 C7 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) C8 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.) C9 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)

16 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C10 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)

C11 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)

CHAPTER 1

DUTY TO MAKE REFERENCES

Duty to make references: completed mergers

22 Duty to make references in relation to completed mergers

(1) [F31The 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 [F32CMA] 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 F33...; 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— [F34(za) 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) the making of the reference is prevented by section F35. . . 74(1) F36... or paragraph 4 of Schedule 7;

(b) the [F37CMA] 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) a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the [F37CMA] under section 56(1); [F38or]

(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 [F3922(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[F40; or

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

[F41(3A) Subsection (3)(f) shall cease to apply if the [F37CMA] 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,

[F42the 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, [F43the CMA] or (as the case may be) the Secretary of State.

Textual Amendments F31 Words in s. 22(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 67(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F32 Word in s. 22(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 67(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F33 Words in s. 22(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 67(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F34 S. 22(3)(za) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

8 para. 2(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F35 Words in s. 22(3)(a) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3),

Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F36 Words in s. 22(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 2(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F37 Word in s. 22(3)(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 67(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

18 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F38 Word in s. 22(3) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(2)(a)

F39 Words in s. 22(3)(e) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(2)(b)

F40 S. 22(3)(f) and preceding word inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(3)

F41 S. 22(3A) inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(4)

F42 Words in s. 22(7)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 67(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F43 Words in s. 22(7)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 67(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4423 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 [F45(b) the value of the turnover in the United Kingdom of the enterprise being taken

over exceeds— (i) £70 million; or

(ii) £1 million, where the value of the turnover does not exceed £70 million and in the course of the enterprises ceasing to be distinct, a person or group of persons has brought a relevant enterprise (within the meaning of either subsection (2) or (3) of section 23A) under the ownership or control of the person or group.]

(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 [F46(b) the share of supply test is met.]

[F47(2A) The share of supply test is met if— (a) as a result of the enterprises ceasing to be distinct enterprises, one or both of

the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent; or

(b) in the course of the enterprises ceasing to be distinct a person or group of persons has brought a relevant enterprise under the ownership or control of the person or group and one or both of the conditions mentioned in subsections (4A) and (4B) below was satisfied in relation to the relevant enterprise before it ceased to be a distinct enterprise.]

(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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

[F48(4A) The condition mentioned in this subsection is that, in relation to the supply of goods of any description—

(a) at least one-quarter of all goods of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by or to the person or persons by whom the enterprise was carried on, and

(b) that supply was made in connection with activities of the enterprise by virtue of which it was a relevant enterprise.

(4B) The condition mentioned in this subsection is that, in relation to the supply of services of any description—

(a) the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, was to the extent of at least one- quarter of all the services of that description, supply by or for the person or persons by whom the enterprise is carried on, and

(b) that supply was made in connection with activities of the enterprise by virtue of which it was a relevant enterprise.]

(5) For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3)[F49, (4), (4A) or (4B)] 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)[F50, (4), (4A) and (4B)] 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.

20 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(9) For 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 [F51CMA] may determine; and

(b) in any other case, immediately before the time when the reference has been, or is to be, made.

[F52(10) Subsections (2) to (4) of section 26 apply for the purposes of this section as they apply for the purposes of that section.]

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F45 S. 23(1)(b) substituted (21.7.2020) by The Enterprise Act 2002 (Turnover Test) (Amendment) Order 2020 (S.I. 2020/763), art. 2(2) (with art. 1(3))

F46 S. 23(2)(b) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(2) (with art. 6)

F47 S. 23(2A) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(3) (with art. 6)

F48 S. 23(4A)(4B) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(4) (with art. 6)

F49 Words in s. 23(5) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(5) (with art. 6)

F50 Words in s. 23(6) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(6) (with art. 6)

F51 Word in s. 23(9)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 68 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F52 S. 23(10) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(7) (with art. 6)

Modifications etc. (not altering text) C12 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1 C13 S. 23(9)(ab) modified by S.I. 2003/1592, art. 5A(c) (as inserted (1.4.2014) by The Enterprise Act 2002

(Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

[F5323A.Relevant enterprises

(1) In section 23 “relevant enterprise” means an enterprise falling within subsection (2) or (3).

(2) An enterprise falls within this subsection if its activities consist in or include— (a) developing or producing restricted goods; (b) holding information (including but not limited to information comprised in

software and documents such as blueprints, manuals, diagrams and designs) that—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(i) is capable of use in connection with the development or production of restricted goods; and

(ii) is responsible for achieving or exceeding the performance levels, characteristics or functions of the restricted goods that are specified in the relevant export control legislation;

(i) computer processing units; (ii) the instruction set architecture for such units;

(iii) computer code that provides low level control for such units; (d) designing, maintaining or providing support for the secure provisioning or

management of— (i) roots of trust of computer processing units;

(ii) computer code that provides low level control for such units; (e) research into—

(i) quantum computing or simulation; (ii) quantum imaging, sensing, timing or navigation;

(iii) quantum communications; or (iv) quantum resistant cryptography;

(f) developing or producing anything designed for use in— (i) quantum computing or simulation;

(ii) quantum imaging, sensing, timing or navigation; (iii) quantum communications; or (iv) quantum resistant cryptography;

(g) supplying services employing— (i) quantum computing or simulation;

(ii) quantum imaging, sensing, timing or navigation; (iii) quantum communications; or (iv) quantum resistant cryptography.

(3) An enterprise falls within this subsection if its activities consist in or include— (a) developing or producing—

(i) advanced materials; or (ii) any product where cryptographic authentication is its primary

function; (b) owning, creating or supplying intellectual property relating to the functional

capability of advanced materials; (c) research into—

(i) artificial intelligence; (ii) cryptographic authentication; or

(iii) advanced materials; (d) developing or producing anything designed for use in artificial intelligence; (e) supplying services employing—

(i) artificial intelligence; or (ii) cryptographic authentication;

(f) developing or producing anything designed as an enabler; (g) providing know-how about or the use of enablers.

22 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(4) In this section— “advanced materials” means—

(a) any materials that are capable of modifying (including in real time) the appearance, detectability, traceability or identification of any object to a human or to sensors within the range 1.5e13 Hz up to and including ultraviolet;

(b) any alloys that are formed by chemical or electrochemical reduction of feedstocks in the solid state;

(c) any manufacturing processes that are involved in the solid state formation of alloys in or into crude or semi-fabricated forms, or powders for additive manufacturing, where “additive manufacturing” means a process of joining materials to make parts from three-dimensional model data; or

(d) any metamaterials that do not include— (i) fibre-reinforced plastics in structural components, products or

coatings with completely random dispersion of pigment or other filler; or

(ii) any packaged device components that are designed for civil application;

“artificial intelligence” means technology enabling the programming or training of a device or software to use or process external data (independent of any further input or programming) to carry out or undertake (with a view to achieving complex, specific tasks)—

(a) automated data analysis or automated decision making; or (b) analogous processing and use of data or information;

“cryptographic authentication” means the method of verifying— (a) the identity of a person, user, process or device; or (b) the origin or content of a message, data or information, by means

of electronic communication, where the method of verification has been encrypted or subject to other analogous application, to protect the authenticity, confidentiality and integrity of the matters set out in paragraphs (a) and (b);

“enabler” means any material or process which is not an advanced material but is used in the manufacture of an advanced material;

“feedstock” means a metal, polymer, ceramic or other material used to supply the manufacturing process used to produce an advanced material;

“intellectual property” means— (a) any patent, trade mark, registered design, copyright or design right, (b) any right under the law of a country or territory outside the United

Kingdom corresponding to, or similar to, a right within paragraph (a); or (c) any information or technique not protected by a right within

paragraph (a) or (b) but having industrial, commercial or other economic value;

“metamaterial” means a composite material in which the constituents are designed and spatially arranged through a rational design-led approach to change the manner in which electromagnetic, acoustic or vibrational energy interacts with the material, in order to achieve a property or performance that is not possible naturally and includes a metasurface and for this purpose “composite material” means a solid material formed from two or more

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

constituents and “constituent” includes a region containing a vacuum, gas or liquid;

“metasurface” means a two-dimensional form of metamaterial which includes one or more layers of material that are intentionally patterned or textured (irrespective of whether they are periodic or not) through a rational design-led approach;

“quantum communications” means— (a) the transmission of information, utilising the properties of quantum

mechanics, in particular superposition or entanglement, and (b) includes the establishment of cryptographic keys and the generation of

true random numbers using a quantum physical process; “quantum computing or simulation” means the study, simulation or

realisation of systems that utilise certain properties of quantum mechanics, in particular superposition or entanglement, to process information, run algorithms or perform operations on data;

“quantum imaging” means utilising certain properties of quantum mechanics, in particular superposition or entanglement, to create images of objects with a resolution or other imaging criteria that is beyond what is possible in non-quantum optics;

“quantum navigation” means utilising certain properties of quantum mechanics, including measurements of suspensions of atoms or ions, to establish the location or movement of objects with a resolution or sensitivity that is beyond what is possible in non-quantum devices or systems;

“quantum resistant cryptography” means methods of securing information or data being transmitted or stored, including by non-quantum means, with a view to resisting attack by a quantum computer;

“quantum sensing” means utilising certain properties of quantum mechanics, including measurements of suspensions of atoms or ions, to determine a property or rate of change in the property of an object, or the effect of an object on a measurable quantity, with a resolution or sensitivity that is beyond what is possible in non-quantum devices or systems;

“quantum timing” means utilising certain properties of quantum mechanics, including measurements of suspensions of atoms or ions, to provide a timing signal with a resolution or sensitivity that is beyond what is possible in non-quantum devices or systems;

“relevant export control legislation” means— (a) Schedules 2 and 3 to the Export Control Order 2008; (b) the Schedule to the Export of Radioactive Sources (Control) Order 2006; (c) Annex I to Council Regulation (EC) No 428/2009;

“restricted goods” means goods, software or information the export or transfer of which is controlled by virtue of their being specified in the relevant export control legislation but excluding any goods, software or information which are controlled only to the extent that they are prohibited from being exported or transferred to one country only;

“roots of trust” means— (a) hardware, firmware, or software components that are inherently trusted

to perform critical security functions, and (b) includes cryptographic key material bound to a device that can identify

the device or verify a digital signature to authenticate a remote entity.]

24 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F53 S. 23A substituted (21.7.2020) by The Enterprise Act 2002 (Share of Supply) (Amendment) Order

2020 (S.I. 2020/748), arts. 1(2), 3(2) (with art. 1(3))

F4424 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 [F54CMA] 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 [F54CMA], 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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F54 Word in s. 24(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 69 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C14 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

F4425 Extension of time-limits

(1) The [F55CMA] 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 [F55CMA] 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 [F56has failed (with

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

or without a reasonable excuse) to comply with any requirement of a notice under section 109].

[F57(3) 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 [F55CMA] 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 [F55CMA] 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

(6) The [F55CMA] 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 [F5822(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 [F59CMA] 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.

26 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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).

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F55 Word in s. 25(1)-(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 70 (with s. 28)(with Sch.)

F56 Words in s. 25(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 16(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F57 S. 25(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 16(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F58 Words in s. 25(6) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(5)

F59 Word in s. 25(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 70 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C15 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

F4426 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text) C16 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1 C17 S. 26 applied in part (5.12.2019 at 12.10 p.m.) by The Public Interest Merger Reference (Gardner

Aerospace Holdings Ltd. and Impcross Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1490), arts. 1, 5

C18 S. 26(2)-(4) applied (20.12.2019 at 9.20 a.m.) by The Public Interest Merger Reference (Mettis Aerospace Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1515), arts. 1, 4

F4427 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.

28 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text) C19 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1 C20 S. 27 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers)

Order 2003 (S.I. 2003/1595), art. 3

F4428 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 [F60CMA] 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F60 Word in s. 28(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 71 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C21 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

F4429 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.

30 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text) C22 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1 C23 S. 29 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers)

Order 2003 (S.I. 2003/1595), art. 3

F4430 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

Modifications etc. (not altering text) C24 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

F6131 Information powers in relation to completed mergers

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F61 S. 31 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 15 para. 17; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F4432 Supplementary provision for purposes of [F62section 25] F63(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In determining for the purposes of section 25(1) or (5)(b) F64... 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.

Textual Amendments F44 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The

Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

F62 Words in s. 32 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 18(4); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F63 S. 32(1)-(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 18(2)

F64 Words in s. 32(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 18(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

32 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C25 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of

Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

Duty to make references: anticipated mergers

33 Duty to make references in relation to anticipated mergers

(1) [F65The 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 [F66CMA] 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 F67...;

(b) the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference F68...; 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— [F69(za) 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) the making of the reference is prevented by section F70. . . 74(1) F71... or paragraph 4 of Schedule 7;

(b) the [F72CMA] is considering whether to accept undertakings under section 73 instead of making such a reference;

(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 [F7422(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[F75; 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.]

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F76(3A) Section 33(3)(f) shall cease to apply if the [F72CMA] 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.

Textual Amendments F65 Words in s. 33(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 72(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F66 Word in s. 33(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 72(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F67 Words in s. 33(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 72(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F68 Words in s. 33(2)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 72(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F69 S. 33(3)(za) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

8 para. 3(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F70 Words in s. 33(3)(a) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3),

Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F71 Words in s. 33(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 3(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F72 Word in s. 33(3)(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F73 Word in s. 33(3) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(6)(a)

F74 Words in s. 33(3)(e) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(6)(b)

F75 S. 33(3)(f) and preceding word inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(7)

F76 S. 33(3A) inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(8)

34 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;

34 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

[F7734ZATime-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;

“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.

(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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(5) Nothing in this section applies where section 34A(2) or 46A(2) applies (duties where case referred by the European Commission).

Textual Amendments F77 Ss. 34ZA-34ZC and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not

already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

34ZB Extension 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.

36 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F77 Ss. 34ZA-34ZC and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not

already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

34ZC Sections 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.]

Textual Amendments F77 Ss. 34ZA-34ZC and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not

already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F78Cases referred by European Commission under EC Merger Regulation

Textual Amendments F78 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)

34A Duty of [F79CMA] 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 [F80CMA] 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 [F81CMA] shall— (a) decide whether to make a reference F82... 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 [F83CMA] 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 [F83CMA] 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 [F29European Union] before the beginning of the year in which it occurs).]

[F84(5) 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.]

[F85(6) An extension under subsection (5) shall come into force when published under section 107.]

[F85(6A) 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.] F86(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

38 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F29 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 4 (with art. 3(2)(3), 4(2), 6(4)(5)) F79 Word in s. 34A heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 73(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F80 Word in s. 34A(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 73(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F81 Word in s. 34A(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 73(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F82 Words in s. 34A(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 73(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F83 Word in s. 34A(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 73(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F84 S. 34A(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 15 para. 19(2); S.I. 2014/416, art. 2(1)(f) (with Sch.) F85 S. 34A(6)(6A) substituted for s. 34A(6) (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 19(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F86 S. 34A(7) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 19(4); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F8734B Power to request information in referred cases

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F87 S. 34B omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 15 para. 20; S.I. 2014/416, art. 2(1)(f) (with Sch.)

Determination of references

[F8834C Functions 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F88 S. 34C inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5

para. 74 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C26 S. 34C modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4

para. 47(2); S.I. 2014/416, art. 2(1)(c) (with Sch.)

35 Questions to be decided in relation to completed mergers

(1) Subject to subsections (6) and (7) and section 127(3), the [F89CMA] 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—

40 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F90CMA] 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 [F90CMA] 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 [F90CMA] 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 [F90CMA] to exclude from consideration—

(a) subsection (1) of section 23; (b) subsection (2) of that section; or (c) one of those subsections if the [F90CMA] finds that the other is satisfied.

(7) In relation to the question whether[F91, for the purposes of section 23(2)(b), the share of supply test is met], a reference under section 22 may be framed so as to require the [F90CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments F89 Word in s. 35(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 75 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F90 Word in s. 35(3)-(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 75 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F91 Words in s. 35(7) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test)

(Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 5(1) (with art. 6)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C27 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

36 Questions to be decided in relation to anticipated mergers

(1) Subject to subsections (5) and (6) and section 127(3), the [F92CMA] 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 [F92CMA] 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—

(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 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 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 [F92CMA] 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 [F92CMA] 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 [F92CMA] to exclude from consideration—

(a) subsection (1) of section 23; (b) subsection (2) of that section; or (c) one of those subsections if the [F92CMA] finds that the other is satisfied.

(6) In relation to the question whether[F93, for the purposes of section 23(2)(b), the share of supply test will be met], a reference under section 33 may be framed so as to require the [F92CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

42 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F92 Word in s. 36(1)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 26 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.) F93 Words in s. 36(6) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test)

(Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 5(2) (with art. 6)

Modifications etc. (not altering text) C28 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

C29 S. 36(2)(a)(b) modified (20.6.2003) by The Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595), art. 4

37 Cancellation and variation of references under section 22 or 33

(1) The [F94CMA] 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 [F94CMA] 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 [F94CMA] 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 [F94CMA], 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 [F95CMA] may at any time vary a reference under section 22 or 33. F96(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F96(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) No variation by the [F97CMA] under this section shall be capable of altering the period permitted by section 39 within which the report of the [F98CMA] under section 38 is to be prepared and published.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F94 Word in s. 37(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 77(2) (with s. 28), S.I. 2014/416, art. 2(1)(d) F95 Word in s. 37(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 77(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F96 S. 37(7)(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 77(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F97 Word in s. 37(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 77(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F98 Word in s. 37(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 77(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

38 Investigations and reports on references under section 22 or 33

(1) The [F99CMA] 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 [F99CMA] 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 [F99CMA] considers appropriate for facilitating a

proper understanding of those questions and of its reasons for its decisions.

(3) The [F99CMA] shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.

F100(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F99 Word in s. 38(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 78(2) (with s. 28), S.I. 2014/416, art. 2(1)(d) F100 S. 38(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 78(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

39 Time-limits for investigations and reports

(1) The [F101CMA] shall prepare and publish its report under section 38 within the period of 24 weeks beginning with the date of the reference concerned.

(2) [F102Where 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.]

44 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) The [F101CMA] 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 [F103CMA] 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 [F104this 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) the person concerned provides the information or documents to the

satisfaction of the [F103CMA] or (as the case may be) appears as a witness in accordance with the requirements of the [F103CMA]; or

(b) the [F103CMA] publishes its decision to cancel the extension.

[F105(8A) 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.

Textual Amendments F101 Word in s. 39(1)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 79 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F102 S. 39(2) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(10)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F103 Word in s. 39(4)(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 79 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F104 Words in s. 39(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 5(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F105 S. 39(8A)(8B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 5(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

40 Section 39: supplementary

(1) [F106No 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) [F106Where 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) [F106the 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) [F107or (2)(a)] of section 39 exceeding

46 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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 [F108CMA] 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 [F108CMA] 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 [F108CMA] 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 [F109CMA] 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 [F109CMA] 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 [F109CMA] 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 [F109CMA];

(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 [F109CMA] 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.

Textual Amendments F106 S. 40(1)(2)(8)(b) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(11)(a) F107 Words in s. 40(9) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(11)(b) F108 Word in s. 40(10)(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 80 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F109 Word in s. 40(13) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 80 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

41 Duty to remedy effects of completed or anticipated mergers

(1) Subsection (2) applies where a report of the [F110CMA] 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(2) The [F110CMA] 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 [F110CMA] 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 [F110CMA] otherwise has a special reason for deciding differently.

(4) In making a decision under subsection (2), the [F110CMA] 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 [F110CMA] 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.

Textual Amendments F110 Word in s. 41(1)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 81 (with s. 28), S.I. 2014/416, art. 2(1)(d)

[F11141A Time-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.

48 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 1 – Duty to make references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F111 Ss. 41A, 41B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

41B Section 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F111 Ss. 41A, 41B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

CHAPTER 2

PUBLIC 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

(d) no reference is prevented from being made under section 22 or 33 by virtue of—

(i) [F112section 22(3)(za), (a) or (e)] or (as the case may be) [F11333(3)(za), (a) or (e)]; or

(ii) [F114EU] law or anything done under or in accordance with it.

(2) The Secretary of State may give a notice to the [F115CMA] (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 [F116to 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).

50 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) In their application by virtue of subsection (5) sections 23 [F117to 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 [F118CMA] 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 [F119CMA] may determine; and”;

(b) the references to the [F118CMA] in [F120section 25(1) to (3), (6) and (8)] included 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 [F118CMA] and one extension by the Secretary of State; (h) the powers to extend time-limits under section 25 as applied by subsection (5)

above F121... were not exercisable by the [F118CMA] or the Secretary of State before the giving of an intervention notice but the existing time-limits [F122by 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 [F123by 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 [F118CMA] or the Secretary of State under section 25 as so applied;

F124(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (k) in the case of the giving of intervention notices, the references in sections 23

[F125to 30] to the making of a reference or a reference were, so far as necessary, references to the giving of an intervention notice or an intervention notice; F126...

F126(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F112 Words in s. 42(1)(d)(i) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(2)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.) F113 Words in s. 42(1)(d)(i) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(2)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.) F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F115 Word in s. 42(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 82(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F116 Words in s. 42(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F117 Words in s. 42(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(4); S.I. 2014/416, art. 2(1)(f) (with Sch.) F118 Word in s. 42(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 82(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F119 Word in s. 42(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 82(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F120 Words in s. 42(6)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(5); S.I. 2014/416, art. 2(1)(f) (with Sch.) F121 Words in s. 42(6)(h) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 21(6)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.) F122 Words in s. 42(6)(h) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(6)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.) F123 Words in s. 42(6)(i) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(7); S.I. 2014/416, art. 2(1)(f) (with Sch.) F124 S. 42(6)(j) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(8); S.I. 2014/416, art. 2(1)(f) (with Sch.) F125 Words in s. 42(6)(k) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 21(9); S.I. 2014/416, art. 2(1)(f) (with Sch.) F126 S. 42(6)(l) and word omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 21(10); S.I. 2014/416, art. 2(1)(f) (with Sch.)

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.

52 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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) the time within which the [F127CMA][F128or (if relevant) OFCOM] is to report to the Secretary of State under section 44 [F129or (as the case may be) 44A] has expired and no such report has been made;

(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;

(d) the [F130CMA] cancels such a reference under section 48(1) or 53(1); (e) the time within which the [F130CMA] 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;

(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.

[F131(6) In this Part “OFCOM” means the Office of Communications.]

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F127 Word in s. 43(4)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 83(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F128 Words in s. 43(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)

(3), Sch. 16 para. 8(2)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F129 Words in s. 43(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 8(2)(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F130 Word in s. 43(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 83(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F131 S. 43(6) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 8(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

44 Investigation and report by [F132CMA]

(1) Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.

(2) The [F133CMA] 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 [F133CMA] 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 [F133CMA] and which relate to any public interest consideration mentioned in the intervention notice concerned [F134(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 [F135CMA] 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 F136... 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

54 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F137CMA] 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 [F137CMA] believes are, or may be, appropriate.

[F138(5A) The report may, in particular, contain a summary of any representations about the case which have been received by the [F137CMA] 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 [F139CMA] shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

[F140(8) 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).]

Textual Amendments F132 Word in s. 44 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 84(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F133 Word in s. 44(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 84(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F134 Words in s. 44(3)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(1), 411(2)(3)

(with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F135 Word in s. 44(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 84(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F136 Words in s. 44(4)(c) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 84(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F137 Word in s. 44(5)(5A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F138 S. 44(5A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F139 Word in s. 44(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 84(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F140 S. 44(8)-(11) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 376(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

[F14144A Additional 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.]

Textual Amendments F141 S. 44A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 377, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

45 Power of Secretary of State to refer matter to [F142CMA]

(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 (b) has received a report of the [F143CMA] under section 44[F144, and any report of

OFCOM which is required by virtue of section 44A,] in relation to the matter.

(2) The Secretary of State may make a reference [F145to 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;

56 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F145to 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 [F145to 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 [F145to 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F142 Words in s. 45 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 85(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F143 Word in s. 45(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 85(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F144 Words in s. 45(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3),

Sch. 16 para. 9 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F145 Words in s. 45(2)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 85(3) (with s. 28), S.I. 2014/416, art. 2(1)(d)

46 References under section 45: supplementary

(1) No reference shall be made under section 45 if— (a) the making of the reference is prevented by section F146. . . 74(1) F147... or

paragraph 4 of Schedule 7; [F148or] (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 [F14922(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.[F150; 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.]

[F151(1A) 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 [F152CMA] 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.

58 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F146 Words in s. 46(1)(a) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3),

Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note. 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F147 Words in s. 46(1)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 22; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F148 Word in s. 46(1) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(12)(a)

F149 Words in s. 46(1)(b) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(12)(b)

F150 S. 46(1)(c) and preceding word inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(13)

F151 S. 46(1A) inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(14)

F152 Words in s. 46(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 86 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F153Cases referred by European Commission under the EC Merger Regulation

Textual Amendments F153 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)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

46A Cases 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 [F154CMA] 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 F155... 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 [F29European Union] before the beginning of the year in which it occurs).

Textual Amendments F29 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 4 (with art. 3(2)(3), 4(2), 6(4)(5)) F154 Word in s. 46A(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 87(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F155 Words in s. 46A(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 87(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

46B Extension of preliminary assessment period]

[F156(1) 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.]

F157(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F158(3) 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—

60 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.] F159(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F156 S. 46B(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 15 para. 23(2); S.I. 2014/416, art. 2(1)(f) (with Sch.) F157 S. 46B(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 23(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F158 S. 46B(3)(3A) substituted for s. 46B(3) (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 23(4); S.I. 2014/416, art. 2(1)(f) (with Sch.) F159 S. 46B(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 23(5); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F16046C Power to request information in referred cases

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F160 S. 46C omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 15 para. 24; S.I. 2014/416, art. 2(1)(f) (with Sch.)

Reports on references

[F16146D Functions 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F161 S. 46D inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5

para. 88 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C30 S. 46D modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4

para. 47(2); S.I. 2014/416, art. 2(1)(c) (with Sch.)

47 Questions to be decided on references under section 45

(1) The [F162CMA] shall, on a reference under section 45(2) or (3), decide whether a relevant merger situation has been created.

(2) If the [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] 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.

62 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(7) The [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] 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 [F162CMA] is not under a duty to disregard.

Textual Amendments F162 Word in s. 47(1)-(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 89 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C31 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

48 Cases where references or certain questions need not be decided

(1) The [F163CMA] 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 [F163CMA] to exclude from consideration—

(a) subsection (1) of section 23; (b) subsection (2) of that section; or (c) one of those subsections if the [F163CMA] finds that the other is satisfied.

(3) In relation to the question whether[F164, for the purposes of section 23(2)(b), the share of supply test is or will be met], a reference under section 45 may be framed so as to require the [F163CMA] to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Textual Amendments F163 Word in s. 48(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 90 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.) F164 Words in s. 48(3) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test)

(Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 5(3) (with art. 6)

49 Variation of references under section 45

(1) The [F165CMA] 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 [F165CMA] 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 F166... 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 [F165CMA] 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 F167... 2, 7 and 8 of Schedule 7 shall,

64 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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) Subsection (5) applies in relation to F168... any order made under paragraph 2 of [F169Schedule 7], which is in force immediately before the [F165CMA], by virtue of subsection (1), treats a reference as mentioned in subsection (1).

(5) The F170... order shall, so far as applicable, continue in force as if— (a) in the case of an F170... order which relates to a reference under subsection (2)

or (3) of section 45 F171... made in relation to a reference made under subsection (4) or (as the case may be) (5) of that section; and

(b) in the case of an F170... order which relates to a reference made under subsection (4) or (5) of that section F171... made in relation to a reference made under subsection (2) or (as the case may be) (3) of that section;

and the F170... order concerned may be varied F172... or revoked accordingly.

(6) The Secretary of State may at any time vary a reference under section 45.

(7) The Secretary of State shall consult the [F165CMA] before varying any such reference.

(8) Subsection (7) shall not apply if the [F165CMA] 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 [F165CMA] under section 50 is to be prepared and given to the Secretary of State.

Textual Amendments F165 Word in s. 49(1)-(4)(7)-(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 26(3), Sch. 5 para. 91 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F166 Word in s. 49(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 25(2); S.I. 2014/416, art. 2(1)(f) (with Sch.) F167 Word in s. 49(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 25(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F168 Words in s. 49(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 15 para. 25(4)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.) F169 Words in s. 49(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 25(4)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.) F170 Words in s. 49(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 15 para. 25(5)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.) F171 Words in s. 49(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 15 para. 25(5)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.) F172 Words in s. 49(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 15 para. 25(5)(c); S.I. 2014/416, art. 2(1)(f) (with Sch.)

50 Investigations and reports on references under section 45

(1) The [F173CMA] 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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) the decisions of the [F173CMA] 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 [F173CMA] considers appropriate for facilitating a

proper understanding of those questions and of its reasons for its decisions.

[F174(2A) Where the report relates to a reference under section 45 which has been made after a report of OFCOM under section 44A, the [F173CMA] shall give a copy of its report (whether or not published) to OFCOM.]

(3) The [F173CMA] shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.

Textual Amendments F173 Word in s. 50(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 92 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.) F174 S. 50(2A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16

para. 10 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

51 Time-limits for investigations and reports by [F175CMA]

(1) The [F176CMA] 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) [F177Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the [F176CMA] 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 [F176CMA] 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 [F176CMA] 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

66 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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) the person concerned provides the information or documents to the

satisfaction of the [F178CMA] or (as the case may be) appears as a witness in accordance with the requirements of the [F178CMA]; or

(b) the [F178CMA] publishes its decision to cancel the extension.

(9) This section is subject to sections 52 and 53.

Textual Amendments F175 Word in s. 51 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 93(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F176 Word in s. 51(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 93(2) (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.) F177 S. 51(2) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(16) F178 Word in s. 51(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 93(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

52 Section 51: supplementary

(1) [F179No 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) [F179Where 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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) [F179the 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) [F180or (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 [F181CMA] 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 [F181CMA] 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 [F181CMA] 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 [F182CMA] for the purposes of section 51(8));

(i) the [F182CMA] 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 [F182CMA];

(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 [F182CMA] 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.

68 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F179 S. 52(1)(2)(8)(b) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(17)(a) F180 Words in s. 52(9) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(17)(b) F181 Word in s. 52(10)(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 94 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F182 Word in s. 52(13) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 94 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

53 Restrictions on action where public interest considerations not finalised

(1) The [F183CMA] 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 F184... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the [F185CMA] 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; [F186or]

(b) the public interest consideration concerned has been finalised; [F187or] (c) [F188the report must be given to the Secretary of State to ensure compliance

with article 9(6) of the European Merger Regulations.]

(3) The [F189CMA] 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 [F189CMA] 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 [F189CMA] to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.

Textual Amendments F183 Word in s. 53(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 95(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F184 Words in s. 53(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 95(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F185 Word in s. 53(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 95(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F186 Word in s. 53(2) inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(18)(a)

F187 Word in s. 53(2) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(18)(b)

F188 S. 53(2)(c) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(18)(c)

F189 Word in s. 53(3)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3), Sch. 5 para. 95(4) (with s. 28), S.I. 2014/416, art. 2(1)(d)(with Sch.)

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 [F190CMA] 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 F191... 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 F191... 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 F191... 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 F191... 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 [F192CMA] 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 [F192CMA] 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—

70 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) in connection with a reference F193... under section 45(2) or (4), the decision of the report [F194of the CMA] under section 50 as to whether there is an anti- competitive outcome; and

(b) in connection with a reference F193... under section 45(3) or (5)— (i) the decision of the report [F194of 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 [F195CMA] 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.

Textual Amendments F190 Word in s. 54(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 96(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F191 Words in s. 54(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 96(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F192 Word in s. 54(5)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 96(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F193 Words in s. 54(7) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 96(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F194 Words in s. 54(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 96(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F195 Word in s. 54(7)(b)(ii) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 96(5)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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 [F196CMA] 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F196 Word in s. 55(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 97 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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 [F197CMA] to deal with the matter otherwise than under this Chapter.

(2) Where a notice is given to the [F197CMA] in the circumstances mentioned in subsection (1), the [F197CMA] 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 [F197CMA] whether to make a reference under section 22 or 33.

(3) Where the [F198CMA] cancels under section 53(1) a reference under section 45 and [F199its 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 [F198CMA] shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F200....

(4) In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the [F201CMA] 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 [F201CMA] 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 [F202CMA] shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made F203... 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.

72 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(7) In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the [F204CMA] 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 [F204CMA] by virtue of section 47(8).

(8) Where the [F205CMA] becomes under a duty to proceed as mentioned in subsection (3) or (6)[F206—

(a)] references in this Part to references under sections 22 and 33 shall, so far as may be necessary, be construed accordingly; and, in particular, sections 77 to 81 shall apply as if a reference has been made F207... under section 22 or (as the case may be) 33[F208; and

(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.]

Textual Amendments F197 Word in s. 56(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F198 Word in s. 56(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F199 Words in s. 56(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F200 Words in s. 56(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 98(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F201 Word in s. 56(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F202 Word in s. 56(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F203 Words in s. 56(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 98(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F204 Word in s. 56(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(6) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F205 Word in s. 56(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F206 Words in s. 56(8) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 98(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F207 Words in s. 56(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 98(7)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F208 S. 56(8)(b) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 98(7)(d) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

57 Duties of [F209CMA and OFCOM] to inform Secretary of State

(1) The [F210CMA] 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(2) The [F211CMA and OFCOM] shall bring to the attention of the Secretary of State any representations about exercising his powers under section 58(3) which have been made to the [F212CMA or (as the case may be) OFCOM].

Textual Amendments F209 Words in s. 57 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 99(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F210 Word in s. 57(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 99(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F211 Words in s. 57(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 99(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F212 Words in s. 57(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 99(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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 [F21321(4) of the EC Merger Regulation] .

[F214(2A) 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.]

[F215(2D) 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).]

[F216(2E) The need to maintain in the United Kingdom the capability to combat, and to mitigate the effects of, public health emergencies is specified in this section.]

74 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F217CMA, 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.

Textual Amendments F213 Words in s. 58(2) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments)

Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(19) F214 S. 58(2A)-(2C) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 375(1), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F215 S. 58(2D) inserted (24.10.2008) (with application in accordance with art. 1(2) of the amending S.I.)

by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008 (S.I. 2008/2645), arts. 1(1), 2

F216 S. 58(2E) inserted (23.6.2020) by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2020 (S.I. 2020/627), arts. 1(1), 2

F217 Words in s. 58(4)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 100 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F21858A Construction 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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F218 S. 58A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 375(2), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

CHAPTER 3

OTHER 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 [F219CMA] (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.

[F220(3) 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

76 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F221to 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 [F222to 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 [F223CMA] 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 [F224CMA] may determine; and”;

(b) the references to the [F223CMA] in section 24(2)(a) and (b) included references to the Secretary of State;

(c) the references to the [F223CMA] in [F225section 25(1) to (3), (6) and (8)] included references to the Secretary of State;

(d) the references to the [F223CMA] 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(f) the reference in section 25(12) to one extension were a reference to one extension by the [F223CMA] and one extension by the Secretary of State;

(g) the powers to extend time-limits under section 25 as applied by subsection (5) above F226... were not exercisable by the [F223CMA] or the Secretary of State before the giving of a special intervention notice;

F227(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i) in the case of the giving of special intervention notices, the references in

sections 23 [F228to 30] to the making of a reference or a reference were, so far as necessary, references to the giving of a special intervention notice or a special intervention notice; F229...

F229(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F230(6A) 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.

Textual Amendments F219 Word in s. 59(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 101(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F220 S. 59(3)-(3D) substituted (29.12.2003) for s. 59(3)(4) by Communications Act 2003 (c. 21), ss. 378(1),

411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F221 Words in s. 59(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F222 Words in s. 59(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F223 Word in s. 59(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 101(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

78 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F224 Word in s. 59(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 101(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F225 Words in s. 59(6)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(4); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F226 Words in s. 59(6)(g) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(5); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F227 S. 59(6)(h) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(6); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F228 Words in s. 59(6)(i) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(7); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F229 S. 59(6)(j) and word omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 26(8); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F230 S. 59(6A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 378(2), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

[F23159A Construction 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—

(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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F231 S. 59A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 378(3), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

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) the time within which the [F232CMA][F233or (if relevant) OFCOM] is to report to the Secretary of State under section 61 [F234or (as the case may be) 61A] has expired and no such report has been made;

(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;

(d) the [F235CMA] cancels such a reference under section 64(1); (e) the time within which the[F235CMA] 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;

80 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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;

(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.

Textual Amendments F232 Word in s. 60(4)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 102(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F233 Words in s. 60(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3),

Sch. 16 para. 13(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F234 Words in s. 60(4)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 13(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F235 Word in s. 60(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 102(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

61 Initial investigation and report by [F236CMA]

(1) Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.

(2) The [F237CMA] 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 [F237CMA] 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 [F237CMA] and which relate to any consideration mentioned in the special

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

intervention notice concerned [F238(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 [F237CMA] believes (disregarding section [F23959(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.

[F240(4A) The report may, in particular, contain a summary of any representations about the case which have been received by the [F237CMA] 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 [F241CMA] shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

Textual Amendments F236 Word in s. 61 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 103(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F237 Word in s. 61(2)-(4A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 103(2) (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.) F238 Words in s. 61(3)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(2), 411(2)(3)

(with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F239 Words in s. 61(4) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(3), 411(2)(3)

(with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F240 S. 61(4A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 379(4), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F241 Word in s. 61(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 103(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F24261A Additional 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.

82 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F242 S. 61A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 380, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

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 (b) has received a report of the [F243CMA] under section 61[F244, and any report of

OFCOM which is required by virtue of section 61A,] in relation to the matter.

(2) The Secretary of State may make a reference [F245to 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 [F245to 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(4) No reference shall be made under this section if the making of the reference is prevented by F246. . . 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 [F247CMA] 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.

Textual Amendments F243 Word in s. 62(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 104(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F244 Words in s. 62(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3),

Sch. 16 para. 14 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F245 Words in s. 62(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 104(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F246 Words in s. 62(4) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F247 Word in s. 62(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 104(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F24862A Functions 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;

84 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(g) section 118(4); (h) section 120(5)(b), so far as relating to a decision of the group.]

Textual Amendments F248 S. 62A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5

para. 105 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C32 S. 62A modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4

para. 47(2); S.I. 2014/416, art. 2(1)(c) (with Sch.)

63 Questions to be decided on references under section 62

(1) The [F249CMA] shall, on a reference under section 62(2), decide whether a special merger situation has been created.

(2) The [F249CMA] 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 [F249CMA] 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 [F249CMA] 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 [F249CMA] 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.

Textual Amendments F249 Word in s. 63(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

26(3), Sch. 5 para. 106 (with s. 28), S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C33 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

64 Cancellation and variation of references under section 62

(1) The [F250CMA] 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 [F250CMA] 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 [F250CMA] 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 F251... 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 F252... any order made under paragraph 2 of [F253Schedule 7], which is in force immediately before the [F250CMA], 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 F254... order shall, so far as applicable, continue in force as if— (a) in the case of an F254... order which relates to a reference under subsection (2)

of section 62F255... made in relation to a reference made under subsection (3) of that section; and

(b) in the case of an F254... order which relates to a reference made under subsection (3) of that sectionF255... made in relation to a reference made under subsection (2) of that section;

and the F254... order concerned may be variedF256... or revoked accordingly.

(6) The Secretary of State may at any time vary a reference under section 62.

(7) The Secretary of State shall consult the [F250CMA] before varying any such reference.

(8) Subsection (7) shall not apply if the [F250CMA] 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 [F250CMA] under that section is to be prepared and given to the Secretary of State.

Textual Amendments F250 Word in s. 64(1)-(4)(7)-(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 107 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

86 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F251 Word in s. 64(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F252 Words in s. 64(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(3)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F253 Words in s. 64(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(3)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F254 Words in s. 64(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(4)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F255 Words in s. 64(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(4)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F256 Words in s. 64(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 27(4)(c); S.I. 2014/416, art. 2(1)(f) (with Sch.)

65 Investigations and reports on references under section 62

(1) The [F257CMA] 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 [F257CMA] 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 [F257CMA] considers appropriate for facilitating a

proper understanding of those questions and of its reasons for its decisions.

[F258(2A) Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the [F257CMA] 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 [F259CMA] shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.

Textual Amendments F257 Word in s. 65(1)-(2A) (4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 107 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F258 S. 65(2A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16

para. 15 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F259 Word in s. 65(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 108 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

66 Decision and enforcement action by Secretary of State

(1) Subsection (2) applies where the Secretary of State has received a report of the [F260CMA] under section 65 in relation to a special merger situation.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(2) The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the [F260CMA] 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 [F260CMA] 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 [F260CMA] 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 [F261CMA] under section 65.

Textual Amendments F260 Word in s. 66(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 109 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F261 Word in s. 66(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 109 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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—

88 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F262EC Merger Regulation]), or a part of such a concentration, has thereby arisen or will thereby arise;

(b) a reference F263. . . is prevented from being made under [F264section 22 or 33] in relation to the relevant merger situation concerned [F265(whether or not there would otherwise have been a duty to make such a reference)] by virtue of [F114EU] law or anything done under or in accordance with it; and

(c) the Secretary of State is considering whether to take appropriate measures to protect legitimate interests as permitted by article [F26621(4) of the EC Merger Regulation].

(2) The Secretary of State may give a notice to the [F267CMA] (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 [F268to 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 [F269to 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 ”;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(d) [F270section 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 ”.

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F262 Words in s. 67(1)(a)(ii) substituted (1.5.2004) by The EC Merger Control (Consequential

Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(20)(a) F263 Words in s. 67(1)(b) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406(7),

411(2)(3), Sch. 16 para. 16(a), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F264 Words in s. 67(1)(b) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 16(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F265 Words in s. 67(1)(b) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 16(c) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1(subject to arts. 3(3), 11)

F266 Words in s. 67(1)(c) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(20)(b)

F267 Word in s. 67(2)(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 110 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F268 Words in s. 67(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 28(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F269 Words in s. 67(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 28(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F270 Words in s. 67(8)(d) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 28(4); S.I. 2014/416, art. 2(1)(f) (with Sch.)

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 [F271EC Merger Regulation]), or a part of such a concentration, has arisen or will arise; and

(c) in relation to which a reference F272. . . was prevented from being made under [F273section 22 or 33 (whether or not there would otherwise have been a duty

90 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

to make such a reference)] by virtue of [F114EU] law or anything done under or in accordance with it.

(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 [F274to 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 [F275CMA] to make a report to the Secretary of State before a reference is made;

(c) enabling the Secretary of State to 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];

(d) requiring [F277the 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.

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F271 Words in s. 68(2)(b) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments)

Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(21) F272 Words in s. 68(2)(c) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406(7),

411(2)(3), Sch. 16 para. 17(a), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F273 Words in s. 68(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 17(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F274 Words in s. 68(4)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 29; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F275 Word in s. 68(4)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 111(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F276 Words in s. 68(4)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 111(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F277 Words in s. 68(4)(d) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 111(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Other

69 Newspaper mergers F278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F278 S. 69 repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 374, 406(7), 411(2)(3), Sch.

19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

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.

92 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 3 – Other special cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

“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.

CHAPTER 4

ENFORCEMENT

Powers exercisable before references under section 22 or 33

F27971 Initial undertakings: completed mergers

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F279 S. 71 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(1),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

72 Initial enforcement orders: [F280completed or anticipated mergers]

[F281(1) Subsection (2) applies where— (a) the CMA is considering whether to make a reference under section 22 or 33;

and

94 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F282CMA] may by order, for the purpose of preventing pre-emptive action— (a) prohibit or restrict the doing of things which the [F282CMA] 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. F283(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F284(3A) 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.]

[F285(3C) 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.

F286(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) An order under this section shall, if it has not previously ceased to be in force and if it is not adopted under F287... paragraph 2 of Schedule 7, cease to be in force—

(a) where the [F282CMA] has decided to make the reference concerned under section 22 [F288or 33][F289—

(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 [F282CMA] 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(d) where the [F282CMA] has otherwise decided not to make the reference concerned under section 22 [F288or 33], on the making of that decision.

(7) The [F290CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

[F291(8) 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.]

Textual Amendments F280 Words in s. 72 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

ss. 30(9), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F281 S. 72(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(3),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F282 Word in s. 72(2)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 112 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F283 S. 72(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(4),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F284 S. 72(3A)(3B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(5),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F285 S. 72(3C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(6), 103(3);

S.I. 2014/416, art. 2(1)(b) (with Sch.) F286 S. 72(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 7 para. 5(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F287 Words in s. 72(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 7 para. 5(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F288 Words in s. 72(6)(a)(d) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

30(7), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F289 Words in s. 72(6)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 5(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F290 Word in s. 72(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 112 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F291 Words in s. 72(8) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 30(8),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

73 Undertakings in lieu of references under section 22 or 33

(1) Subsection (2) applies if the [F292CMA] 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 [F292CMA] under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).

(2) The [F292CMA] 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 [F292CMA] 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.

96 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(4) In proceeding under subsection (2), the [F292CMA] 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 [F293CMA].

(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 [F294CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

Textual Amendments F292 Word in s. 73(1)-(4)(5)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 113 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F293 Word in s. 73(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 113 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F294 Word in s. 73(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 113 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F29573A Time-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).

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F295 Ss. 73A, 73B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 7; S.I. 2014/416, art. 2(1)(d) (with Sch.)

73B Section 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—

98 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

Textual Amendments F295 Ss. 73A, 73B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 8 para. 7; S.I. 2014/416, art. 2(1)(d) (with Sch.)

74 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 [F296CMA] 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 [F296CMA] 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 [F297CMA]; and (b) in relation to a possible reference under section 45, the Secretary of State.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F296 Word in s. 74(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 114 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F297 Word in s. 74(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 114 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

75 Order-making power where undertakings under section 73 not fulfilled etc.

(1) Subsection (2) applies where the [F298CMA] considers that— (a) an undertaking accepted by it under section 73 has not been, is not being or

will not be fulfilled; or (b) in relation to an undertaking accepted by it under that section, information

which was false or misleading in a material respect was given to the [F298CMA] by the person giving the undertaking before the [F298CMA] decided to accept the undertaking.

(2) The [F298CMA] 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— (a) anything permitted by Schedule 8; and (b) such supplementary, consequential or incidental provision as the [F299CMA]

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 [F299CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Textual Amendments F298 Word in s. 75(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 115 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F299 Word in s. 75(4)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 115 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C34 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified

(20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C35 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

100 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C36 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

76 Supplementary interim order-making power

(1) Subsection (2) applies where— (a) the [F300CMA] 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 [F301CMA] 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 [F302CMA] 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 [F302CMA] 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 [F303CMA] 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 [F304CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Textual Amendments F300 Word in s. 76(1)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 116(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F301 Word in s. 76(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 116(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F302 Word in s. 76(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 116(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

101

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F303 Word in s. 76(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 116(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F304 Word in s. 76(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 116(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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 F305... 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 [F306CMA] — (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 [F306CMA], 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 [F307CMA] under subsection (2) or (3)— (a) may be general or special; (b) may be revoked by the [F307CMA]; and (c) shall be published in such manner as the [F307CMA] 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 [F307CMA] 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.

102 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F305 Words in s. 77(1)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 30; S.I. 2014/416, art. 2(1)(f) (with Sch.) F306 Word in s. 77(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 117 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F307 Word in s. 77(5)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 117 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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 [F308section 72 or 81] are in force in relation to that situation.

(2) No relevant person shall, without the consent of the [F309CMA], 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 [F309CMA] under subsection (2)— (a) may be general or special; (b) may be revoked by the [F309CMA]; and (c) shall be published in such manner as the [F309CMA] 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 [F309CMA] 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 “share” means share in the capital of a company, and includes stock.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

103

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F308 Words in s. 78(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 31; S.I. 2014/416, art. 2(1)(f) (with Sch.) F309 Word in s.78(2)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 118 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

79 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 [F310CMA] 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 [F310CMA] under section 38 contains the decision that there is not an anti-competitive outcome;

(d) the report of the [F310CMA] under section 38 contains the decision that there is an anti-competitive outcome and the [F310CMA] has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84; or

(e) the report of the [F310CMA] under section 38 contains the decision that there is an anti-competitive outcome and the [F310CMA] has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.

(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

104 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

an obligation assumed before the publication by the [F311CMA] 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) [F312Section 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 [F313paragraph 8 of Schedule 6] as so applied shall be construed accordingly.

Textual Amendments F310 Word in s. 79(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 119(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F311 Word in s. 79(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 119(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F312 Words in s. 79(9) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments,

Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 199(2)(a) (with art. 10)

F313 Words in s. 79(9) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 199(2)(b) (with art. 10)

Modifications etc. (not altering text) C37 S. 79 applied (with modifications) by The Enterprise Act 2002 (Protection of Legitimate Interests)

Order 2003 (S.I. 2003/1592), art. 13, Sch. 2 para. 8(9)(10) C38 S. 79: amendment to earlier affecting provision S.I. 2003/1592, Sch. 2 para. 8(9)(10) (1.4.2014)

by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 17(9)(10) (with arts. 20-23)

80 Interim undertakings

(1) [F314Subsections (2) and (2A)] apply where a reference under section 22 or 33 has been made but is not finally determined.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

105

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(2) The [F315CMA] 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.

[F316(2A) 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.]

[F317(2B) 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.]

F318(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F318(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) [F319An 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 [F320CMA].

F321(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F322CMA] 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 [F323CMA's] decisions on the reference.

Textual Amendments F314 Words in s. 80(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 2(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F315 Word in s. 80(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F316 S. 80(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7

para. 2(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F317 S. 80(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7

para. 2(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F318 S. 80(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 2(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F319 Words in s. 80(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 2(6); S.I. 2014/416, art. 2(1)(d) (with Sch.) F320 Word in s. 80(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

106 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F321 S. 80(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7 para. 2(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F322 Word in s. 80(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F323 Word in s. 80(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 120(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

81 Interim orders

(1) [F324Subsections (2) and (2A)] apply where a reference has been made under section 22 or 33 but is not finally determined.

(2) The [F325CMA] may by order, for the purpose of preventing pre-emptive action— (a) prohibit or restrict the doing of things which the [F325CMA] 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.

[F326(2A) 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.]

[F327(2B) 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.]

F328(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F328(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) [F329An 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.

F330(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F331CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

107

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F324 Words in s. 81(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 3(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F325 Word in s. 81(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 121(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F326 S. 81(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7

para. 3(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F327 S. 81(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 7

para. 3(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F328 S. 81(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 3(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F329 Words in s. 81(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 7 para. 3(6); S.I. 2014/416, art. 2(1)(d) (with Sch.) F330 S. 81(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 7 para. 3(7); S.I. 2014/416, art. 2(1)(d) (with Sch.) F331 Word in s. 81(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 121(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Final powers

82 Final undertakings

(1) The [F332CMA] 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 [F332CMA].

(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 [F333CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

Textual Amendments F332 Word in s. 82(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 122 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F333 Word in s. 82(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 122 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

108 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

83 Order-making power where final undertakings not fulfilled

(1) Subsection (2) applies where the [F334CMA] considers that— (a) an undertaking accepted by it under section 82 has not been, is not being or

will not be fulfilled; or (b) in relation to an undertaking accepted by it under that section, information

which was false or misleading in a material respect was given to the [F335CMA] by the person giving the undertaking before the [F336CMA decided] to accept the undertaking.

(2) The [F337CMA] 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— (a) anything permitted by Schedule 8; and (b) such supplementary, consequential or incidental provision as the [F338CMA]

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.

F339(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F334 Word in s. 83(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 123(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F335 Word in s. 83(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 123(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F336 Words in s. 83(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 123(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F337 Word in s. 83(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 123(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F338 Word in s. 83(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 123(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F339 S. 83(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 123(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C39 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1),

160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C40 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

109

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C41 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

84 Final orders

(1) The [F340CMA] may, in accordance with section 41, make an order under this section.

(2) An order under this section may contain— (a) anything permitted by Schedule 8; and (b) such supplementary, consequential or incidental provision as the [F340CMA]

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.

F341(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Textual Amendments F340 Word in s. 84(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 124(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F341 S. 84(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 124(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C42 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 para. 5 modified

(20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C43 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 para. 5 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C44 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

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 [F342CMA] may advise the Secretary of State in relation to the taking by him of enforcement action under Schedule 7.

110 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F342 Word in s. 85(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 125 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Undertakings and orders: general provisions

86 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.

(2) 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.

(3) 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.

Modifications etc. (not altering text) C45 S. 86 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(b)(3) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C46 S. 86(2) applied (20.6.2003) by 1980 c. 21, s. 11D(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 86(2) applied (20.6.2003) by 1980 c. 21, s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C47 S. 86(3) applied (20.6.2003) by 1980 c. 21, s. 11D(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

111

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 86(3) applied (20.6.2003) by 1980 c. 21, s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

87 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.

Modifications etc. (not altering text) C48 S. 87 applied (20.6.2003) by 1980 c. 21, s. 11D(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278,

279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C49 S. 87 applied (20.6.2003) by 1980 c. 21, s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C50 S. 87 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(c) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

112 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

88 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.

Modifications etc. (not altering text) C51 S. 88 applied (20.6.2003) by 1980 c. 21, s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C52 S. 88 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(d)(4) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

89 Subject-matter of undertakings

(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

(2) In this Part “enforcement undertaking” means an undertaking under section F343... 73, 80 or 82 or under paragraph F344... 3 or 9 of Schedule 7.

Textual Amendments F343 Word in s. 89(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 32(a); S.I. 2014/416, art. 2(1)(f) (with Sch.) F344 Word in s. 89(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 32(b); S.I. 2014/416, art. 2(1)(f) (with Sch.)

Modifications etc. (not altering text) C53 S. 89 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(e)(5) (as amended by (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C54 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C55 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C56 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1) and Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), s. 278, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

113

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

90 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.

Modifications etc. (not altering text) C57 S. 90 applied (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(6), 411(2)(3), Sch. 18 para.

62(7)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

91 Register of undertakings and orders

(1) The [F345CMA] shall compile and maintain a register for the purposes of this Part.

(2) The register shall be kept in such form as the [F345CMA] considers appropriate.

(3) The [F346CMA] 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 [F347CMA] 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 [F348CMA] is unaware.

(5) The [F349Secretary of State] shall inform the [F350CMA] of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted [F351by the Secretary of State], enforcement orders made by them or consents given [F351by the Secretary of State].

(6) The [F352CMA] 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 [F352CMA] may determine.

(7) If requested by any person to do so and subject to such reasonable fees (if any) as the [F352CMA] may determine, the [F352CMA] shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.

Textual Amendments F345 Word in s. 91(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 126(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F346 Word in s. 91(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 126(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F347 Word in s. 91(3)(d) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 126(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

114 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F348 Word in s. 91(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 126(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F349 Words in s. 91(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 126(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F350 Word in s. 91(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 126(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F351 Words in s. 91(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 126(5)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F352 Word in s. 91(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 126(6) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C58 S. 91 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(f)(6) C59 S. 91 applied (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(6), 411(2)(3), Sch. 18 para.

62(7)(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) (as amended by (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C60 Ss. 91(3), 92(1)(a), 162(1), 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enforcement functions of [F353CMA]

Textual Amendments F353 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.)

92 Duty of [F354CMA] to monitor undertakings and orders

(1) The [F355CMA] shall keep under review— (a) 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 [F355CMA] 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 [F356CMA] shall give F357... the Secretary of State such advice as it considers appropriate in relation to—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

115

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) any possible variation or release by F358... the Secretary of State of an enforcement undertaking accepted by F359... him;

(b) any possible new enforcement undertaking to be accepted by F360... the Secretary of State so as to supersede another enforcement undertaking given to F360... the Secretary of State;

(c) any possible variation or revocation by F360... the Secretary of State of an enforcement order made by F360... the Secretary of State;

(d) any possible enforcement undertaking to be accepted by F360... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by F360... the Secretary of State instead of an enforcement undertaking;

(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 [F361CMA] 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 [F361CMA] shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

(6) The [F361CMA] 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 [F362CMA] shall— F363(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) give a copy of [F364 any report prepared by it under subsection (6)] to the Secretary of State; and

Textual Amendments F354 Word in s. 92 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 128(6) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F355 Word in s. 92(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 128(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F356 Word in s. 92(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 128(3)(a)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

116 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F357 Words in s. 92(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(3)(a)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F358 Words in s. 92(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(3)(b)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F359 Words in s. 92(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(3)(b)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F360 Words in s. 92(3)(b)-(d) omitted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F361 Word in s. 92(4)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F362 Word in s. 92(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F363 S. 92(7)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F364 Word in s. 92(7)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 128(5)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C61 S. 92 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(g)(7) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C62 S. 92 applied (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(6), 411(2)(3), Sch. 18 para. 62(7)(c) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

C63 Ss. 91(3), 92(1)(a), 162(1) and 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

93 Further role of [F365CMA] in relation to undertakings and orders

(1) Subsections (2) and (3) apply where— F366(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the Secretary of State is considering whether to accept undertakings under paragraph F367...3 or 9 of Schedule 7.

(2) [F368The Secretary of State] may require the [F369CMA] to consult with such persons as the [F370Secretary of State] considers appropriate with a view to discovering whether they will offer undertakings which the [F370Secretary of State] would be prepared to accept under F371... paragraph F372... 3 or 9 of Schedule 7.

(3) The [F373Secretary of State] may require the [F374CMA] to report to the relevant authority on the outcome of the [F375CMA's] consultations within such period as the relevant authority may require.

(4) A report under subsection (3) shall, in particular, contain advice from the [F376CMA] as to whether any undertakings offered should be accepted by the [F377Secretary of State] under F378... paragraph F379... 3 or 9 of Schedule 7.

(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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

117

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) If asked by the [F380Secretary of State] for advice in relation to the taking of enforcement action (whether or not by way of undertaking) in a particular case, the [F381CMA] shall give such advice as it considers appropriate.

Textual Amendments F365 Word in s. 93 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(7) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F366 S. 93(1)(a) and word omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 129(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F367 Word in s. 93(1)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 33(2); S.I. 2014/416, art. 2(1)(f) (with Sch.) F368 Words in s. 93(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F369 Word in s. 93(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F370 Words in s. 93(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F371 Words in s. 93(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 129(3)(d) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F372 Word in s. 93(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 33(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F373 Words in s. 93(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F374 Word in s. 93(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F375 Word in s. 93(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(4)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F376 Word in s. 93(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F377 Words in s. 93(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F378 Words in s. 93(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 129(5)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F379 Word in s. 93(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 33(4); S.I. 2014/416, art. 2(1)(f) (with Sch.) F380 Words in s. 93(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F381 Word in s. 93(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 129(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C64 S. 93 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(h)(8) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C65 S. 93 applied (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(6), 411(2)(3), Sch. 18 para. 62(7)(d) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

118 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Other

94 Rights to enforce undertakings and orders

(1) This section applies to any enforcement undertaking or enforcement order.

(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) 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.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) 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 [F382CMA] for an injunction or for interdict or for any other appropriate relief or remedy.

F383(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Compliance with an undertaking under paragraph F384... 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.

(9) 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.

Textual Amendments F382 Word in s. 94(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 130(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F383 S. 94(7) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 130(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F384 Word in s. 94(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 34; S.I. 2014/416, art. 2(1)(f) (with Sch.)

Modifications etc. (not altering text) C66 S. 94 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(i)(9) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C67 S. 94 applied (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(6), 411(2)(3), Sch. 18 para. 62(7)(e) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

C68 S. 94(1) applied (20.6.2003) by 1980 c. 21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1). Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 4 – Enforcement Document Generated: 2021-02-16

119

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 94(1) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C69 S. 94(2) applied (20.6.2003) by 1980 c.21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(2) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C70 S. 94(3) applied (20.6.2003) by 1980 c.21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(3) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C71 S. 94(4) applied (20.6.2003) by 1980 c.21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(4) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C72 S. 94(5) applied (20.6.2003) by 1980 c.21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(5) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C73 S. 94(8) applied (20.6.2003) by 1980 c.21 s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(8) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C74 S. 94(9) applied (20.6.2003) by 1980 c. 21, s. 11D(7) (as inserted by the Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 94(9) applied (20.6.2003) by 1980 c. 21 s. 12(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

[F38594A Interim 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)).

120 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 4 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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;

“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.

Textual Amendments F385 Ss. 94A, 94B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(1), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

94B Statement 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.]

Textual Amendments F385 Ss. 94A, 94B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(1), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

121

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

95 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 [F386CMA] 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 [F387CMA] 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.

Textual Amendments F386 Word in s. 95(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 131(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F387 Word in s. 95(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 131(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C75 S. 95 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(j)(10) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

CHAPTER 5

SUPPLEMENTARY

Merger notices

96 Merger notices

(1) A person authorised to do so by regulations under section 101 may give notice to the [F388CMA][F389of arrangements or proposed arrangements which might have resulted or might result in the creation of a relevant merger situation].

(2) Any such notice (in this Part a “merger notice”)—

122 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) shall be in the prescribed form; [F390(aa) shall contain the prescribed information;] and

(b) shall state that the existence of the proposal has been made public.

[F391(2A) 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.]

F392(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F392(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the [F393CMA] 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.

Textual Amendments F388 Word in s. 96(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 132(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F389 Words in s. 96(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 8(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F390 S. 96(2)(aa) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

8 para. 8(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F391 S. 96(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8

para. 8(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F392 S. 96(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 8(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F393 Word in s. 96(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 132(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F39497 Period for considering merger notices

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F394 S. 97 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 8 para. 9; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F39598 Section 97: supplementary

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

123

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F395 S. 98 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 8 para. 9; S.I. 2014/416, art. 2(1)(d) (with Sch.)

99 Certain functions of [F396CMA] in relation to merger notices

(1) The [F397CMA] shall, so far as practicable and when [F398the initial period (within the meaning of section 34ZA) begins in relation to the merger notice], take such action as the [F397CMA] 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 [F397CMA] considers would be affected if the arrangements were carried into effect.

F399(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F399(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F399(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The [F400CMA] may, at any time before the end of [F401the initial period (within the meaning of section 34ZA) in relation to a merger notice], reject the notice if—

(a) the [F400CMA] 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 [F400CMA] suspects that it is not proposed to carry the notified arrangements into effect;

(c) any prescribed information is not given in the merger notice [F402or 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

(d) the [F400CMA] considers that the notified arrangements are, or if carried into effect would result in, a concentration with a Community dimension within the meaning of the [F403EC Merger Regulation].

(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.

Textual Amendments F396 Word in s. 99 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 133(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F397 Word in s. 99(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 133(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

124 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F398 Words in s. 99(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 10(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F399 S. 99(2)-(4) omitted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 57, Sch. 15 para. 35(2), S.I. 2014/416, art. 2(1)(f) (with Sch.)

F400 Word in s. 99(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 133(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F401 Words in s. 99(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 10(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F402 Words in s. 99(5)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 35(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F403 Words in s. 99(5)(d) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(23)

100 Exceptions to protection given by merger notices

(1) [F404Sections 22(3)(za) and 33(3)(za) do not] prevent any reference being made [F405under section 22 or (as the case may be) 33] if—

(a) before the end of [F406the initial period (within the meaning of section 34ZA) in relation to the merger notice], the [F407CMA] rejects the notice under section 99(5);

F408(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 [F407CMA]F409...;

(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 [F410the 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 [F411section 22 or 33] as having occurred simultaneously on a particular date; and

(b) [F412sections 22(3)(za) and 33(3)(za) do not] prevent such a reference in relation to the last of those transactions.

(3) [F413Sections 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

125

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F404 Words in s. 100(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F405 Words in s. 100(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F406 Words in s. 100(1)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(2)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F407 Word in s. 100(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 134 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F408 S. 100(1)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(2)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.) F409 Words in s. 100(1)(c) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 8 para. 11(2)(e); S.I. 2014/416, art. 2(1)(d) (with Sch.) F410 Words in s. 100(1)(e) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(2)(f); S.I. 2014/416, art. 2(1)(d) (with Sch.) F411 Words in s. 100(2)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F412 Words in s. 100(2)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F413 Words in s. 100(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 8 para. 11(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

101 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 F414... 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;

F415(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F415(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F415(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F415(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

126 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F414 Words in s. 101(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 8 para. 12(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F415 S. 101(2)(c)-(f) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

32(2), Sch. 8 para. 12(3), S.I. 2014/416, art. 2(1)(d)

102 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

103 Duty of expedition in relation to references

(1) [F416In 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.

Textual Amendments F416 Words in s. 103(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

32(1), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Modifications etc. (not altering text) C76 S. 103 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(k)(11) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

104 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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

127

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F417CMA], the Commission or the

Secretary of State; “relevant decision” means—

(a) in the case of the [F418CMA], any decision by the [F418CMA]— (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 reference[F419; or (iii) on the questions mentioned in section 35(1) or (3), 36(1) or (2),

47 or 63;] (b) F420... (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

“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.

Textual Amendments F417 Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 135(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F418 Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 135(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F419 Words in s. 104(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 135(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F420 Words in s. 104(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 135(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C77 S. 104 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(l)(12) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C78 S. 104 modified by S.I. 2003/1592, art. 5A(d) (as inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

128 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F421104APublic consultation in relation to media mergers

(1) Subsection (2) applies where the [F422CMA]— (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 [F422CMA] 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) Any consultation of the kind mentioned in subsection (2) may be undertaken by the [F422CMA] by consulting such representative sample of the public or section of the public concerned as the [F422CMA] considers appropriate.]

Textual Amendments F421 S. 104A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 381, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F422 Word in s. 104A(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 26(3), Sch. 5 para. 136, (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C79 S. 104A modified by S.I. 2003/1592, art. 5A(d) (as inserted (1.4.2014) by The Enterprise Act 2002

(Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

C80 S. 104A applied (with modifications) (29.12.2003) by S.I. 2003/1592, art. 15, Sch. 3 para. 1(1)(la) (as inserted by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(9) (with transitional provisions and savings in art. 3) S. 104A applied (with modifications) (29.12.2003) by S.I. 2003/1592, art. 15, Sch. 3 para. 1(12A) (as inserted by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(12) (with transitional provisions and savings in art. 3) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

Information and publicity requirements

105 General information duties of [F423CMA]

(1) Where the [F424CMA] 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.

[F425(1A) 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

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

129

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.]

(2) [F426Subsections (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) The [F427CMA] shall give the F428... [F429OFCOM]— (a) such information in its possession as F430...[F431OFCOM] may reasonably

require to enable the F430...[F431OFCOM] to carry out its functions under this Part; and

(b) any other assistance which the F432... [F431OFCOM] 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 the [F433CMA] to give.

[F434(3A) OFCOM shall give the [F435 CMA ] — (a) such information in their possession as the [F436CMA] may reasonably require

to enable the [F436CMA] to carry out its functions under this Part; and (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) The [F437CMA] shall give the [F438OFCOM] any information in its possession which has not been requested by the F439... [F440OFCOM] but which, in the opinion of the [F437CMA], would be appropriate to give to the F439... [F440OFCOM] for the purpose of assisting it in carrying out its functions under this Part.

[F441(4A) OFCOM shall give the [F442CMA] any information in their possession which has not been requested by the [F443CMA] but which, in the opinion of OFCOM, would be appropriate to give to the [F443CMA] for the purpose of assisting it in carrying out its functions under this Part.]

(5) The [F444CMA 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 [F445CMA or (as the case may be) OFCOM] to give.

(6) The [F446CMA][F447and OFCOM] shall give the Secretary of State any information in [F448their] possession which has not been requested by the Secretary of State but which, in the opinion of the [F446CMA][F449or (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) The [F450CMA] shall have regard to any information given to it under subsection [F451(3A) or (4A)]; and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).

[F452(7A) OFCOM shall have regard to any information given to them under subsection (3) or (4);]F453...

(8) Any direction given under subsection (5)— (a) shall be in writing; and

130 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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

Textual Amendments F423 Word in s. 105 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 137(11) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F424 Word in s. 105(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F425 S. 105(1A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(2), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F426 Words in s. 105(2) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(3), 411(2)(3)

(with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F427 Word in s. 105(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(3)(a)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F428 Words in s. 105(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 137(3)(a)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F429 Words in s. 105(3) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(4)(a), 411(2)(3)

(with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F430 Words in s. 105(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 137(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F431 Words in s. 105(3) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(4)(b), 411(2)

(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F432 Words in s. 105(3)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 137(3)(c)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F433 Word in s. 105(3)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(3)(c)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F434 S. 105(3A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(5), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F435 Word in s. 105(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F436 Word in s. 105(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F437 Word in s. 105(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F438 Word in s. 105(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F439 Words in s. 105(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 137(5)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F440 Words in s. 105(4) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(6)(b), 411(2)

(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F441 S. 105(4A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(7), 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F442 Word in s. 105(4A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F443 Word in s. 105(4A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F444 Words in s. 105(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F445 Words in s. 105(5)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F446 Word in s. 105(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 137(8) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

131

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F447 Words in s. 105(6) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(9)(a), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F448 Word in s. 105(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(9)(b), 411(2) (3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F449 Words in s. 105(6) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(9)(c), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1

F450 Word in s. 105(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 137(9)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F451 Words in s. 105(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 137(9)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F452 S. 105(7A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 382(11), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F453 Words in s. 105(7A) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 137(10) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C81 S. 105 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(m)(13) (as amended by S.I. 2003/3180, art. 2, Sch. para. 10(13) (with transitional provisions and savings in art. 3) and (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

106 Advice and information about references under sections 22 and 33

(1) F454... [F455The CMA] shall prepare and publish general advice and information about[F456—

(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 [F457CMA] may at any time publish revised, or new, advice or information. F458(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F458(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 [F459CMA] or (as the case may be) the Commission expects such provisions to operate.

(6) Advice (or information) published by virtue of subsection (1) F460... may include advice (or information) about the factors which the [F461CMA] may take into account in considering whether, and if so how, to exercise a function conferred by this Part.

(7) Any advice or information published by the [F462CMA] under this section shall be published in such manner as the [F463CMA] considers appropriate.

(8) In preparing any advice or information under this section, the [F464CMA shall consult such persons] as it considers appropriate.

F465(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

132 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F454 Words in s. 106(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 138(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F455 Words in s. 106(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F456 Words in s. 106(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(2)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F457 Word in s. 106(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F458 S. 106(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F459 Word in s. 106(5)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F460 Word in s. 106(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 138(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F461 Word in s. 106(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F462 Word in s. 106(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F463 Word in s. 106(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F464 Words in s. 106(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(8) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F465 S. 106(9) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 138(9) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F466106AAdvice 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 [F467CMA, OFCOM] and such other persons as he considers appropriate.]

Textual Amendments F466 S. 106A inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 383, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F467 Words in s. 106A(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 139 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

133

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F468106BGeneral 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 [F469CMA] 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 [F470CMA] under section 50 or 65 or related enforcement action shall not be published before the report itself is published.]

Textual Amendments F468 S. 106B inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 384, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F469 Word in s. 106B(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 140 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F470 Word in s. 106B(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 140 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C82 S. 106B applied (with modifications) (29.12.2003) by S.I. 2003/1592, art. 15, Sch. 3 para. 1(1)(ma)

(as inserted by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(10) (with transitional provisions and savings in art. 3) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 106B applied (with modifications) (29.12.2003) by S.I. 2003/1592, art. 15, Sch. 3 para. 1(13A) (as inserted by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(14) (with transitional provisions and savings in art. 3))

107 Further publicity requirements

(1) The [F471CMA] shall publish— [F472(a) 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);] [F473(ab) 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;

134 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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; F474(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) any enforcement order made by it under section 72 F475... or paragraph 2 of Schedule 7;

[F476(ea) 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 [F477an order mentioned in

paragraph (e)] F478(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F478(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .[F479; and

(i) any notice given by it under section 96(2A).]

(2) The [F480CMA 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;

[F481(ea) 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

135

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F482CMA] under section 44 or 61 which has been received

by him; [F483(ba) 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 [F484CMA] 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);

F485(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F485(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

136 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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) the report of the [F486CMA] under section 44 [F487and any report of OFCOM

under section 44A,] in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and

(b) the report of the [F488CMA] 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) the report of the [F489CMA] under section 61[F490, and any report of OFCOM

under section 61A,] in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and

(b) the report of the [F491CMA] 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 [F492CMA's] report under section 50 or (as the case may be) 65, before each House of Parliament

Textual Amendments F471 Word in s. 107(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 141(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F472 S. 107(1)(a)(aa) substituted for s. 107(1)(a) (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 15 para. 36(2); S.I. 2014/416, art. 2(1)(f) (with Sch.) F473 S. 107(1)(ab)-(ah) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3),

s. 57, Sch. 15 para. 36(3); S.I. 2014/416, art. 2(1)(f) (with Sch.) F474 S. 107(1)(d) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 36(4); S.I. 2014/416, art. 2(1)(f) (with Sch.) F475 Words in s. 107(1)(e) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 141(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F476 S. 107(1)(ea)-(ec) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 26(3),

s. 57, Sch. 15 para. 36(5); S.I. 2014/416, art. 2(1)(f) (with Sch.) F477 Words in s. 107(1)(f) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 36(6); S.I. 2014/416, art. 2(1)(f) (with Sch.) F478 S. 107(1)(g)(h) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 141(2)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F479 S. 107(1)(i) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 15 para. 36(7); S.I. 2014/416, art. 2(1)(f) (with Sch.) F480 Words in s. 107(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 141(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

137

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F481 S. 107(2)(ea)(eb) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 36(8); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F482 Word in s. 107(3)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F483 S. 107(3)(ba) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 18(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F484 Word in s. 107(3)(e) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F485 S. 107(3)(h)(i) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 36(9); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F486 Word in s. 107(9)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F487 Words in s. 107(9)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 18(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F488 Word in s. 107(9)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F489 Word in s. 107(10)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F490 Words in s. 107(10)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 18(4) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F491 Word in s. 107(10)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F492 Word in s. 107(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 141(7) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

108 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 [F493CMA, OFCOM] or the Secretary of State in the exercise of any of their functions under this Part.

Textual Amendments F493 Words in s. 108 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 142 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C83 S. 108 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(n)(14) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

Investigation powers

109 Attendance of witnesses and production of documents etc.

[F494(A1) For the purposes of this section, the permitted purposes are the following—

138 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.]

(1) [F495The 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 (b) to give evidence to the [F496CMA] or a person nominated by the [F496CMA]

for the purpose.

(2) [F497The 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.

(3) [F498The CMA may, for a permitted purpose,] give notice to any person who carries on any business requiring him—

(a) to supply to [F499the 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.

(4) A notice under this section shall[F500— (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.

(5) [F501The 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.

(6) The person to whom any document is produced in accordance with a notice under this section may, [F502for 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

139

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F503(8A) 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.

Textual Amendments F494 S. 109(A1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(2),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F495 Words in s. 109(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

29(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F496 Word in s. 109(1)(b) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 3 (with art. 3)

F497 Words in s. 109(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(4), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F498 Words in s. 109(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(5), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F499 Words in s. 109(3)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 143 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F500 Words in s. 109(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(6), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F501 Words in s. 109(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(7), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F502 Words in s. 109(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(8), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F503 S. 109(8A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(9), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

140 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C84 S. 109 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C85 S. 109 applied (20.6.2003) by 2000 c. 38, s. 12(B)(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C86 S. 109 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C87 S. 109 applied (20.6.2003) by 2000 c. 26, s. 15B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C88 S. 109 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), s. 15B(1)(4)(5) (as inserted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C89 S. 109 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), s. 35(B)(1)(4)(5) as inserted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C90 S. 109 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 15(2D)(2H)(2I) (as substituted by Enterprise

Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C91 S. 109 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C92 S.109 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C93 S.109 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 30(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C94 S.109 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C95 S. 109 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C96 S. 109 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C97 S. 109 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C98 S. 109 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C99 S. 109 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C100 S. 109 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C101 S. 109 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C102 S. 109 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C103 S. 109 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C104 S. 109 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C105 S. 109 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C106 S. 109 applied (20.6.2003) by 1980 c. 21, s. 11B(1) (as inserted by Enterprise Act 2002 (c. 40), ss. 278,

279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 109 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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) S. 109 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

141

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 109 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 109 applied (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(1)(a), 27(6)(a) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C107 S. 109 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(o)(15) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 109 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 109 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(a)(17) (18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 109 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(a)(20) (21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 109 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(a)(5)(6)}; S.R. 2004/71, art. 2, Sch. S. 109 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(a)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9), 211(2) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(c)(i) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 177 (with art. 3, Sch. 2 para. 2))

C109 S. 109 applied (with modifications) (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(a), 4 (as amended (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. 45(3)(4) (with art. 3))

C110 S. 109 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 10 para. 10(1)(a)(12); S.I. 2012/2657, art. 2(2)

C111 S. 109 applied (with modifications) by 1993 c. 43, s. 15C(2DA) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 102(3) (with art. 3, Sch. 2 para. 2))

C112 S. 109 applied (with modifications) by 2000 c. 38, s. 18(6A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 151(3) (with art. 3, Sch. 2 para. 2))

C113 S. 109 applied (with modifications) by 2000 c. 38, s. 12B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 150(3) (with art. 3, Sch. 2 para. 2))

C114 S. 109 applied (with modifications) by S.I. 2005/3172, art. 10(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 246(3) (with art. 3, Sch. 2 para. 2))

C115 S. 109 applied (with modifications) by S.I. 1996/275 (N.I. 2), art. 17A(17A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 219(3) (with art. 3, Sch. 2 para. 2))

C116 S. 109 applied (with modifications) by 1991 c. 56, s. 14B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 75(3) (with art. 3, Sch. 2 para. 2))

142 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C117 S. 109 applied (with modifications) by 1991 c. 56, s. 17M(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 78(3) (with art. 3, Sch. 2 para. 2))

C118 S. 109 applied (with modifications) by 1993 c. 43, s. 13B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 101(3) (with art. 3, Sch. 2 para. 2))

C119 S. 109 applied (with modifications) by S.I. 1992/231 (N.I. 1), art. 15B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 213(3) (with art. 3, Sch. 2 para. 2))

C120 S. 109 applied (with modifications) by S.I. 1992/231 (N.I. 1), art. 17A(14A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 214(3) (with art. 3, Sch. 2 para. 2))

C121 S. 109 applied (with modifications) by S.I. 2003/419 (N.I. 6), Sch. 2 para. 5(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 243(3) (with art. 3, Sch. 2 para. 2))

C122 S. 109 applied (with modifications) by 1986 c. 44, s. 41EB(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 51(3) (with art. 3, Sch. 2 para. 2))

C123 S. 109 applied (with modifications) by S.I. 2005/3172, art. 5(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 245(3) (with art. 3, Sch. 2 para. 2))

C124 S. 109 applied (with modifications) by 1980 c. 21, s. 11B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 36(3) (with art. 3, Sch. 2 para. 2))

C125 S. 109 applied (with modifications) by 1993 c. 43, Sch. 4A para. 10A(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 111(3) (with art. 3, Sch. 2 para. 2))

C126 S. 109 applied (with modifications) by 1989 c. 29, s. 56CB(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(3) (with art. 3, Sch. 2 para. 2))

C127 S. 109 modified by S.I. 2003/1592, art. 5A(e) (as inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

C128 S. 109 applied (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. 2 para. 3 (with art. 3)

C129 S. 109 applied (with modifications) by 1991 c. 56, s. 16B(6A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 76(3) (with art. 3, Sch. 2 para. 2))

C130 S. 109 applied (with modifications) by S.I. 1996/275 (N.I. 2), art. 15B(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 218(3) (with art. 3, Sch. 2 para. 2))

C131 Ss. 109-111 savings for effect of 2013 c. 24, s. 29 (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 2 para. 1 (with art. 3)

C132 S. 109 applied (with modifications) by 1991 c. 56, s. 17Q(6A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 79(3) (with art. 3, Sch. 2 para. 2))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

143

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C133 S. 109 applied (with modifications) by S.I. 2006/3336 (N.I. 21), art. 27(6A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 251(3) (with art. 3, Sch. 2 para. 2))

C134 S. 109 applied (with modifications) by 1993 c. 43, Sch. 4A para. 15(2DA) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 112(3) (with art. 3, Sch. 2 para. 2))

C135 S. 109 applied (with modifications) by 2012 c. 7, Sch. 10 para. 10(2A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(4) (with art. 3, Sch. 2 para. 2))

C136 S. 109 applied (with modifications) by S.I. 2006/3336 (N.I. 21), art. 23(1A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 250(3) (with art. 3, Sch. 2 para. 2))

C137 S. 109(A1) saving for the effect of 2013 c. 24, s. 29(2) (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. 6 (with art. 3)

C138 S. 109(1) saving for the effect of 2013 c. 24, s. 29(3) (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. 6 (with art. 3)

C139 S. 109(2) saving for the effect of 2013 c. 24, s. 29(4) (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. 6 (with art. 3)

C140 S. 109(3) saving for the effect of 2013 c. 24, s. 29(5) (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. 6 (with art. 3)

C141 S. 109(4) saving for the effect of 2013 c. 24, s. 29(6) (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. 6 (with art. 3)

C142 S. 109(5) saving for the effect of 2013 c. 24, s. 29(7) (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. 6 (with art. 3)

C143 S. 109(6) saving for the effect of 2013 c. 24, s. 29(8) (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. 6 (with art. 3)

C144 S. 109(8A) saving for the effect of 2013 c. 24, s. 29(9) (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. 6 (with art. 3)

110 Enforcement of powers under section 109: general

(1) Where the [F504CMA] 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 [F504CMA] 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 [F504CMA] 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.

144 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F505(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F506CMA] 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 [F507CMA] 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 [F508CMA] 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.

Textual Amendments F504 Word in s. 110(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 144 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F505 S. 110(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

29(10), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F506 Word in s. 110(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 144 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F507 Word in s. 110(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 144 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F508 Word in s. 110(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 144 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

211(2) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(c)(i) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 177 (with art. 3, Sch. 2 para. 2))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

145

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C145 S. 110 applied (with modifications) (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C146 S. 110 applied (with modifications) (20.6.2003) by 1991 c. 56, s. 14B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C147 S. 110 applied (with modifications) (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C148 S. 110 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 56CB(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C149 S. 110 applied (with modifications) (20.6.2003.) by 1989 c. 29, s. 14A(11F)(11G)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C150 S. 110 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 12B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C151 S. 110 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 41EB(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C152 S. 110 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 26A(11F)(11G)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C153 S. 110 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 24B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C154 S. 110 applied (with modifications) (20.6.2003) by 1986 c. 31, s. 44B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C155 S. 110 applied (with modifications) (20.6.2003) by 1984 c. 12, s. 13B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C156 S. 110 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 18(6)(7)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C157 S. 110 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 12B(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C158 S. 110 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 19A(6)(7)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C159 S. 110 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 15B(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C160 S. 110 applied (with modifications) (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C161 S. 110 applied (with modifications) (20.6.2003) by S.I. 1994/426 (N.I. 1), s. 35B(1)(2)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

146 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C162 S. 110 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para. 15(2D)(2E)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C163 S. 110 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(2)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C164 S.110 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 15C(2D)(2E)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C165 S. 110 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 13B(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C166 S. 110 applied (with modifications) (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(2)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C167 S. 110 applied (with modifications) (20.6.2003) by 1980 c. 21, s. 11B(1)(2) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 110 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(p)(16) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 110 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 110 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(b)(2)(3)(5)(6)}; S.R. 2004/71, art. 2, Sch. S. 110 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(b)(18)(19) (20)(21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 110 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(b)(15)(16) (17)(18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 110 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(b)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.)) S. 110 applied (with modifications) (1.10.2005) by 1991 c. 56, s. 17M(1)(2) (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)) S. 110 applied (with modifications) (1.10.2005) by 1991 c. 56, s. 17Q(6)(7) (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)) S. 110 applied (with modifications) (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 110 applied (with modifications) (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(1)(b)(2), 27(6)(b)(7) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C168 S. 110 applied (with modifications) (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(b), 4 (as amended (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. 45(3)(4) (with art. 3))

C169 S. 110 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 10 para. 10(1)(b)(2)-(4)(12); S.I. 2012/2657, art. 2(2)

C170 Ss. 110-115 modified by S.I. 2003/1592, art. 5A(f) (as inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

147

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C171 S. 110(4) saving for the effect of 2013 c. 24, s. 29(10) (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. 6 (with art. 3)

[F509110ARestriction 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.]

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) (with savings in 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. 6 (with art. 3))

Modifications etc. (not altering text) C172 S. 110A applied (with modifications) by 1980 c. 21, s. 11B(2A) (as inserted (1.4.2014) by The

Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 36(5) (with art. 3, Sch. 2 para. 2))

148 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C173 S. 110A applied (with modifications) by 1980 c. 21, s. 11B(1)(ba) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 36(2)(b) (with art. 3, Sch. 2 para. 2))

[F509110BSection 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

149

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

Modifications etc. (not altering text) C174 S. 110B saving for the effect of 2013 c. 24, s. 29(11) (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. 6 (with art. 3)

111 Penalties

(1) A penalty imposed under section 110(1) or (3) shall be of such amount as the [F510CMA] 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.

(5) 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 [F511CMA] 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 F512...; or

150 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(ii) if earlier, [F513 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 [F514CMA] and such other persons as he considers appropriate.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F510 Word in s. 111(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 145 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F511 Word in s. 111(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 145 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F512 Words in s. 111(5)(b)(i) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(12)(a), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F513 Words in s. 111(5)(b)(ii) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(12)(b), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F514 Word in s. 111(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 145 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

C175 S. 111 applied (with modifications) (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 213(5) (with art. 3, Sch. 2 para. 2))

C176 S. 111 applied (with modifications) (20.6.2003) by 1991 c. 56, s. 14B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

151

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 75(5) (with art. 3, Sch. 2 para. 2))

C177 S. 111 applied (with modifications) (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C178 S. 111 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 56CB(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(5) (with art. 3, Sch. 2 para. 2))

C179 S. 111 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 14A(11F)(11H)-(11J) (as inserted by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C180 S. 111 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 12B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C181 S. 111 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 41EB(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 51(5) (with art. 3, Sch. 2 para. 2))

C182 S. 111 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 26A(11F)(11H)-(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C183 S. 111 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 24B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C184 S. 111 applied (with modifications) (20.6.2003) by 1986 c. 31, s. 44B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C185 S. 111 applied (with modifications) (20.6.2003) by 1984 c. 12, s. 13B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C186 S. 111 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 18(6)(8)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C187 S. 111 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 12B(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 150(5) (with art. 3, Sch. 2 para. 2))

C188 S. 111 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 19A(6)(8))(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C189 S. 111 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 15B(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C190 S. 111 applied (with modifications) (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(3)-(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 218(5) (with art. 3, Sch. 2 para. 2))

152 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C191 S. 111 applied (with modifications) (20.6.2003) by S.I. 1994/426 (N.I. 1), s. 35B(1)(3)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C192 S. 111 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para 15(2D)(2F)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C193 S. 111 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(3)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 111(5) (with art. 3, Sch. 2 para. 2))

C194 S. 111 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 15C(2D)(2F)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C195 S.111 applied (with modifications) (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C196 S. 111 applied (with modifications) (20.6.2003) by 1980 c. 21, s. 11B(1)(3) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 36(6) (with art. 3, Sch. 2 para. 2))

C197 S. 111 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 13B(1)(3)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 101(5) (with art. 3, Sch. 2 para. 2)) S. 111 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(q)(17) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 111 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 111 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(c)(2)(3)(5)(6)}; S.R. 2004/71, art. 2, Sch. (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 243(5) (with art. 3, Sch. 2 para. 2)) S. 111 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(c)(18)(19) (20)(21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 111 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(c)(15)(16) (17)(18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 111 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(c)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.)) S. 111 applied (with modifications) (1.10.2005) by 1991 c. 56, s. 17M(1)(3) (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)) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 78(5) (with art. 3, Sch. 2 para. 2))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

153

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 111 applied (with modifications) (1.10.2005) by 1991 c. 56, s. 17Q(6)(8) (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)) S. 111 applied (with modifications) (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 111 applied (with modifications) (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(1)(c)(3), 27(6)(c)(8) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 250(5) (with art. 3, Sch. 2 para. 2))

C198 S. 111 applied (with modifications) (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(c), 4 (as amended (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. 45(3)(4) (with art. 3))

C199 S. 111 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 10 para. 10(1)(c)(2)(5)-(7)(12); S.I. 2012/2657, art. 2(2) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(8) (with art. 3, Sch. 2 para. 2))

C200 Ss. 111-115 applied (with modifications) by 2007 c. 29, s. 60(9) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 177 (with art. 3, Sch. 2 para. 2))

C201 S. 111(5)(6)(i) saving for the effect of 2013 c. 24, s. 29(12)(a) (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. 6 (with art. 3)

C202 S. 111(5)(6)(ii) saving for the effect of 2013 c. 24, s. 29(12)(b) (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. 6 (with art. 3)

112 Penalties: main procedural requirements

(1) As soon as practicable after imposing a penalty under section 110(1) or (3), the [F515CMA] shall give notice of the penalty.

(2) The notice shall state— (a) that the [F515CMA] 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 [F515CMA] considers gave it the power to impose the penalty;

(e) any other facts which the [F515CMA] 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 [F515CMA];

(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;

154 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F515CMA] 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.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F515 Word in s. 112(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (2013 c. 24), s. 26(3), Sch. 5 para. 146 (with s. 28); S.I. 2014/416, art. 2(1)(d) Sch.

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

C203 S. 112 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C204 S. 112 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C205 S. 112 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C206 S. 112 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C207 S. 112 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C208 S. 112 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C209 S. 112 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

155

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C210 S. 112 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C211 S. 112 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C212 S. 112 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C213 S. 112 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C214 S. 112 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C215 S. 112 applied (20.6.2003) by 2000 c. 38, s. 12B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C216 S. 112 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C217 S. 112 applied (20.6.2003) by 2000 c. 26, s. 15B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C218 S. 112 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C219 S. 112 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), s. 35B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C220 S. 112 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 15(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C221 S. 112 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C222 S. 112 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C223 S. 112 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C224 S. 112 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C225 S. 112 applied (20.6.2003) by 1980 c. 21, s. 11B(1) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) S. 112 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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)) S. 112 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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)) S. 112 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 112 applied (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(1)(d), 27(6)(d) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C226 S. 112 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(r) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 112 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 112 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), Sch. 2 para. 5(1)(d)(5)(6); S.R. 2004/71, art. 2, Sch. S. 112 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(d)(17)(18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), art. 36(2); S.R. 2004/71, art. 2, Sch.))

156 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 112 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(d)(20)(21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), art. 37(2); S.I. 2004/71, art. 2, Sch.)) S. 112 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(d)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C227 S. 112 applied (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(d) (as amended (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. 45(3) (with art. 3))

C228 S. 112 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 10 para. 10(1)(d)(2)(8)(12); S.I. 2012/2657, art. 2(2)

C229 Ss. 112-115 applied by 1998 c. 41, s. 40A(9) (as inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 40(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.))

113 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 [F516CMA] 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 [F516CMA] in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F516 Word in s. 113(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 147 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

157

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C229 Ss. 112-115 applied by 1998 c. 41, s. 40A(9) (as inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 40(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.))

C230 S. 113 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C231 S. 113 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C232 S. 113 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C233 S. 113 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C234 S. 113 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C235 S. 113 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C236 S. 113 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C237 S. 113 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C238 S. 113 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C239 S. 113 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C240 S. 113 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C241 S. 113 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C242 S. 113 applied (20.6.2003) by 2000 c. 38, s. 12B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C243 S. 113 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C244 S. 113 applied (20.6.2003) by 2000 c. 26, s. 15B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C245 S. 113 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C246 S. 113 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), s. 35B(1)(4)(5) as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C247 S. 113 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 15(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C248 S. 113 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C249 S. 113 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C250 S. 113 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C251 S. 113 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C252 S. 113 applied (20.6.2003) by 1980 c. 21, s. 11B(1)(2) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 113 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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) S. 113 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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)

158 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 113 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 113 applied (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(1)(e), 27(6)(e) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C253 S. 113 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(s) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 113 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 113 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(e)(5)(6)}; S.R. 2004/71, art. 2, Sch. S. 113 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(e)(17) (18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 113 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(e)(20) (21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 113 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(e)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C254 S. 113 applied (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(e) (as amended (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. 45(3) (with art. 3))

C255 S. 113 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), para. 10(2), (12), s. 306(4), Sch. 10 para. 10(1)(e); S.I. 2012/2657, art. 2(2)

114 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 [F517CMA] 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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

159

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F517CMA] 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 [F518CMA] 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.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F517 Word in s. 114(4)(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 148 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

160 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F518 Word in s. 114(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 148 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

C229 Ss. 112-115 applied by 1998 c. 41, s. 40A(9) (as inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 40(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.))

C256 S. 114 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C257 S. 114 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C258 S. 114 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C259 S. 114 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C260 S. 114 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C261 S. 114 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C262 S. 114 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C263 S. 114 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C264 S. 114 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C265 S. 114 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C266 S. 114 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C267 S. 114 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C268 S. 114 applied (20.6.2003) by 2000 c. 38, s. 12B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C269 S. 114 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C270 S. 114 applied (20.6.2003) by 2000 c. 26, s. 15B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C271 S. 114 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C272 S. 114 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), art. 35B(1)(4)(5) as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C273 S. 114 applied (20.6.2003) by 1993 c. 43, Sch. 4A para 15(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

161

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C274 S. 114 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C275 S. 114 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C276 S.114 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C277 S. 114 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C278 S. 114 applied (20.6.2003) by 1980 c. 21, s. 11B(1) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 114 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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) S. 114 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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) S. 114 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 114 applied (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(1)(f), 27(6)(f) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C279 S. 114 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(t) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 114 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 114 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(f)(5)(6)}; S.R. 2004/71, art. 2, Sch. S. 114 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(f)(17) (18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 114 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(f)(20) (21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 114 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(f)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C280 S. 114 applied (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(f) (as amended (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. 45(3) (with art. 3))

C281 S. 114 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), para. 10(2), (9), (12), s. 306(4), Sch. 10 para. 10(1)(f); S.I. 2012/2657, art. 2(2)

115 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,

162 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

the [F519CMA] may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid; and in England and Wales and Northern Ireland such penalty and interest may be recovered as a civil debt due to the [F519CMA].

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F519 Word in s. 115 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 149 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C108 Ss. 109-115 applied (with modifications) (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 60(9),

C229 Ss. 112-115 applied by 1998 c. 41, s. 40A(9) (as inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 40(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.))

C282 S. 115 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C283 S. 115 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(5); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C284 S. 115 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C285 S. 115 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C286 S. 115 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C287 S. 115 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C288 S. 115 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C289 S. 115 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C290 S. 115 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C291 S. 115 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 14(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C292 S. 115 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C293 S. 115 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

163

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C294 S. 115 applied (20.6.2003) by 2000 c. 38, s. 12B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C295 S. 115 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C296 S. 115 applied (20.6.2003) by 2000 c. 26, s. 15B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C297 S. 115 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C298 S. 115 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), art. 35B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C299 S. 115 applied (20.6.2003) by 1993 c. 43, Sch. 4A para 15(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C300 S. 115 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C301 S. 115 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C302 S. 115 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C303 S. 115 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C304 S. 115 applied (20.6.2003) by 1980 c. 21, s. 11B(1)(2) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) S. 115 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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)) S. 115 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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)) S. 115 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 115 applied (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(1)(g), 27(6)(g) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C305 S. 115 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(u) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 115 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 115 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), Sch. 2 para. 5(1)(g)(5)(6); S.R. 2004/71, art. 2, Sch. S. 115 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(g)(17)(18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), art. 36(2); S.R. 2004/71, art. 2, Sch.) S. 115 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(g)(20)(21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), art. 37(2); S.R. 2004/71, art. 2, Sch.) S. 115 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(g)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C306 S. 115 applied (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(g) (as amended (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. 45(3) (with art. 3))

164 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C307 S. 115 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), para. 10(2), (10), (12), s. 306(4), Sch. 10 para. 10(1)(g); S.I. 2012/2657, art. 2(2)

116 Statement of policy

(1) The [F520CMA] 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 [F521CMA] may revise its statement of policy and, where it does so, it shall publish the revised statement.

(4) The [F522CMA] shall consult such persons as it considers appropriate when preparing or revising its statement of policy.

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F520 Word in s. 116(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 150 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F521 Word in s. 116(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 150 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F522 Word in s. 116(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 150 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C308 S. 116 applied (20.6.2003) by 1986 c. 31, s. 44B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 14(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C309 S. 116 applied (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 15B(1)(4)(5) (as inserted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 25 para. 28(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C310 S. 116 applied (20.6.2003) by 1991 c. 56, s. 14B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 25(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C311 S. 116 applied (20.6.2003) by 1990 c. 42, Sch. 4 para. 4A(1)(4)(5) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 24(9)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C312 S. 116 applied (20.6.2003) by 1989 c. 29, s. 56CB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 20(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C313 S. 116 applied (20.6.2003) by 1989 c. 29, s. 14A(11F)(11I)(11J) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 20(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C314 S. 116 applied (20.6.2003) by 1989 c. 29, s. 12B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 20(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C315 S. 116 applied (20.6.2003) by 1986 c. 44, s. 41EB(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 15(12)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C316 S. 116 applied (20.6.2003) by 1986 c. 44, s. 26A(11F)(11I)(11J) (as inserted by Enterprise Act 2002

(c. 40), ss. 278, 279, Sch. 25 para. 15(6)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) C317 S. 116 applied (20.6.2003) by 1986 c. 44, s. 24B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40),

ss. 278, 279, Sch. 25 para. 15(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

165

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C318 S. 116 applied (20.6.2003) by 1984 c. 12, s. 13B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 13(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C319 S. 116 applied (20.6.2003) by 2000 c. 38, s. 18(6)(10)(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C320 S. 116 applied (20.6.2003) by 2000 c. 38, s. 12B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C321 S. 116 applied (20.6.2003) by 2000 c. 26, s. 19A(6)(10)(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C322 S. 116 applied (20.6.2003) by 2000 c. 26, s. 15B (1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C323 S. 116 applied (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 15B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 36(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C324 S. 116 applied (20.6.2003) by S.I. 1994/426 (N.I. 1), art. 35B(1)(4)(5) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 33(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C325 S. 116 applied (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(1)(5)(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C326 S. 116 applied (20.6.2003) by 1993 c. 43, s. 15C(2D)(2H)(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C327 S. 116 applied (20.6.2003) by 1993 c. 43, s. 13B(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C328 S. 116 applied (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(1)(5)(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C329 S. 116 applied (20.6.2003) by 1980 c. 21, s. 11B(1) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8) S. 116 applied (1.10.2005) by 1991 c. 56, s. 17M(1) (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) S. 116 applied (1.10.2005) by 1991 c. 56, s. 17Q(6) (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) S. 116 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7) S. 116 applied (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(1)(h), 27(6)(h) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C330 S. 116 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(v) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 116 applied (with modifications) (20.6.2003) by S.I. 1999/3088, reg. 8 (as substituted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 36(3)) S. 116 applied (with modifications) (N.I.) (2.3.2004) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), arts. 39(2), 40(2), {Sch. 2 para. 5(1)(h)(5)(6)}; S.R. 2004/71, art. 2, Sch. S. 116 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1992/231 (N.I. 1), art. 17A(14)(h)(17) (18) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 36(2)}; S.R. 2004/71, art. 2, Sch.) S. 116 applied (with modifications) (N.I.) (2.3.2004) by S.I. 1996/275 (N.I. 2), art. 17A(17)(h)(20) (21) (as inserted by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), {art. 37(2)}; S.R. 2004/71, art. 2, Sch.) S. 116 applied (with modifications) (1.10.2004) by 1991 c. 56, s. 16B(6)(a)-(10) (as inserted by Water Act 2003 (c. 37), ss. 55(4), 105(3); S.I. 2004/2528, art. 2(h) (with art. 4, Sch.))

C331 S. 116 applied (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(h) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential,

166 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Transitional and Saving Provisions) (No. 2) Order 2014 (S.I. 2014/549), art. 1(1), Sch. 1 para. 45(3) (with art. 3))

C332 S. 116 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(2) (4), Sch. 10 para. 10(1)(h)(2)(11)(12); S.I. 2012/2657, art. 2(2)

117 False or misleading information

(1) A person commits an offence if— (a) he supplies any information to the [F523CMA, 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 [F523CMA, 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.]

Textual Amendments F509 Ss. 110A, 110B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 29(11),

F523 Words in s. 117(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 151 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C333 S. 117 modified (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 23(7) (as substituted by Enterprise Act 2002

(c. 40), s. 279, Sch. 9 para. 22(5); S.I. 2003/1397, art. 2(1), Sch.) C334 S. 117 modified (20.6.2003) by 1993 c. 43, s. 67(9) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 9 para. 21(7); S.I. 2003/1397, art. 2(1), Sch.) C335 S. 117 modified (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 46(6A) (as substituted by Enterprise Act

2002 (c. 40), ss. 278, 279, Sch. 9 para. 20(5); S.I. 2003/1397, art. 2(1), Sch.) C336 S. 117 modified (20.6.2003) by 1991 c. 56, s. 31(8A) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 9 para. 19(6); S.I. 2003/1397, art. 2(1), Sch.) C337 S. 117 modified (20.6.2003) by 1989 c. 29, s. 43(6A) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 9 para. 18(5); S.I. 2003/1397, art. 2(1), Sch.) C338 S. 117 modified (20.6.2003) by 1986 c. 44, s. 36A(8) (as substituted by Enterprise Act 2002 (c. 40), ss.

278, 279, Sch. 9 para. 17(6); S.I. 2003/1397, art. 2(1), Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

167

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C339 S. 117 modified (20.6.2003) by 1984 c. 12, s. 50(6A) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 9 para. 16(5); S.I. 2003/1397, art. 2(1), Sch.) S. 117 modified (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), 29(10) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

C340 S. 117 modified (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 370(10), 411 (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2)

C341 S. 117 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 18(9)-(11) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(5); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 94(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C342 S. 117 applied (with modifications) (20.6.2003) by 2000 c. 38, s. 12B(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 44(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 88(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C343 S. 117 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 19A(9)-(11) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C344 S. 117 applied (with modifications) (20.6.2003) by 2000 c. 26, s. 15B(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 42(2); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C345 S. 117 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para 15(2G)-(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(c); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (E.W.S.) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 81(13)(c)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C346 S. 117 applied (with modifications) (20.6.2003) by 1993 c. 43, Sch. 4A para. 10A(4)-(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(15)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (E.W.S.) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 81(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C347 S. 117 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 15C(2G)-(2I) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(6); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (E.W.S.) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 77(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C348 S. 117 applied (with modifications) (20.6.2003) by 1993 c. 43, s. 13B(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (E.W.S.) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 72(1)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C349 S. 117 applied (with modifications) (20.6.2003) by 1989 c. 29, s. 56CB(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 20(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C350 S. 117 applied (with modifications) (20.6.2003) by 1986 c. 44, s. 41EB(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 15(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) (as amended (E.W.S.) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 26(b); S.I. 2014/416, art. 2(1)(d) (with Sch.))

C351 S. 117 applied (with modifications) (20.6.2003) by 1980 c. 21, s. 11C(1) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 10(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8))

C352 S. 117 applied (with modifications) (20.6.2003) by 2000 c. 8, Sch. 14 para. 2A(4)-(6) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 40(20)(b); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)) S. 117 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(w)(18) (as amended (1.4.2014)

168 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 117 applied (with modifications) (20.6.2003) by The Energy (Northern Ireland) Order (S.I. 2003/419 (N.I. 6)), art. 2, {Sch. 2 para. 5(4)(6)}; S.R. 2003/203, art. 2, Sch. S. 117 applied (with modifications) (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), arts. 5, 10(3)-(7)

C353 S. 117 applied (20.6.2003) by S.I. 1990/1715, reg. 5 (as inserted by The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003 (S.I. 2003/1398), art. 2, Sch. para. 17(5))

C354 S. 117 applied (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 193(8), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2)

C355 S. 117 applied (with modifications) (15.1.2012) by The Postal Services (Appeals to the Competition Commission) (Investigations and Extension of Time Limits) Order 2011 (S.I. 2011/2749), arts. 1, 3(i), 4 (as amended (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. 45(3)(4) (with art. 3))

C356 S. 117 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), para. 10(2), (12), s. 306(4), Sch. 10 para. 10(1)(i); S.I. 2012/2657, art. 2(2)

C357 S. 117 modified (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 73(6), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

Reports

118 Excisions from reports

(1) Subsection (2) applies where the Secretary of State is under a duty to publish— (a) a report of the [F524CMA] under section 44 or 61;

[F525(aa) a report of OFCOM under section 44A or 61A;] or (b) a report of the [F526CMA] 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.

(4) 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 [F527CMA] shall be construed as references to the giving or laying of the report as published.

Textual Amendments F524 Word in s. 118(1)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 152(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F525 S. 118(1)(aa) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch.

16 para. 21 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

169

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F526 Word in s. 118(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 152(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F527 Word in s. 118(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 152(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C358 S. 118(4) modified by S.I. 2003/1592, art. 5A(g) (as inserted (1.4.2014) by The Enterprise Act 2002

(Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

C359 S. 118 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(x)(19) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

119 Minority reports of [F528CMA]

(1) Subsection (2) applies where, on a reference to the [F529CMA] under this Part, a member of a group constituted in connection with the reference F530..., disagrees with any decisions contained in the report of the [F529CMA] under this Part as the decisions of the [F529CMA].

(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Textual Amendments F528 Word in s. 119 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 153(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F529 Word in s. 119(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 153(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F530 Words in s. 119(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 153(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C360 S. 119 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(y)(20) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

[F531Further provision about media mergers

Textual Amendments F531 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)

119A Other 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.

170 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

Modifications etc. (not altering text) C361 S. 119A applied (with modifications) (29.12.2003) by S.I. 2003/1592, Sch. 3 para. 1(1)(ya) (as inserted

by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(11) (with art. 3) S. 119A applied (with modifications) (29.12.2003) by S.I. 2003/1592, Sch. 3 para. 1(20A) (as inserted by The Enterprise Act 2002 and Media Mergers (Consequential Amendments) Order 2003 (S.I. 2003/3180), art. 2, Sch. para. 10(15) (with art. 3) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

[ F532119B

Monitoring role for [F533CMA] in relation to media mergers

(1) The [F534CMA] 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 [F534CMA], 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).]]

Textual Amendments F532 S. 119B inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 386, 411(2)(3) (with

transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11) F533 Word in s. 119B heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 154(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F534 Word in s. 119B(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 154(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Miscellaneous

120 Review of decisions under Part 3

(1) Any person aggrieved by a decision of the [F535CMA], [F536OFCOM,][F537or the Secretary of State] under this Part in connection with a reference or possible reference

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

171

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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 [F538section 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 (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).

Textual Amendments F535 Word in s. 120(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 155(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F536 Word in s. 120(1) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3),

Sch. 16 para. 22 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F537 Words in s. 120(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 155(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F538 Words in s. 120(2)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Modifications etc. (not altering text) C362 S. 120(5)(b) modified by S.I. 2003/1592, art. 5A(h) (as inserted (1.4.2014) by The Enterprise Act 2002

(Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))

C363 S. 120 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(z)(21) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

172 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C364 S. 120(6)-(8) applied (1.9.2004) by Energy Act 2004 (c. 20), ss. 141, 198(2), Sch. 18 para. 15; S.I. 2004/2184, art. 2(2), Sch. 2

C365 S. 120(6)-(8) applied (N.I.) (3.7.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), reg. 28

C366 S. 120(6)-(8) applied (N.I.) (prosp.) by The Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 (S.I 2007/913 (N.I. 7)), arts. 1, 5, {Sch. 1 para. 15}

C367 S. 120(6)-(8) applied (N.I.) (15.4.2011) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 1, Sch. 1 para. 14

121 Fees

(1) The Secretary of State may by order require the payment to him or the [F539CMA of] such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the [F540CMA and OFCOM] of their functions under or by virtue of this Part, F541. . . 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;[F542 or] (b) F543. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 [F544CMA] 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;

(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 [F544CMA] 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—

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

173

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) for ascertaining the persons by whom fees are payable; (b) specifying whether any fee is payable to the Secretary of State or the

[F544CMA]; (c) for the amount of any fee to be calculated by reference to matters which may

include— (i) F545. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) F546. . . , 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 [F544CMA] 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 [F547CMA] 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 [F548CMA in] respect of the exercise by him, the [F549CMA and OFCOM] of their respective functions under or by virtue of this Part F550. . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.

(9) Fees paid to the Secretary of State or the [F551CMA] under this section shall be paid into the Consolidated Fund.

(10) F552. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F539 Words in s. 121(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 156(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F540 Words in s. 121(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 156(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F541 Words in s. 121(1) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2)

(3), Sch. 16 para. 23(2)(b), Sch. 19(1) (with transitional provisions in Sch. 18 and Note 1Sch. 19); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F542 Word in s. 121(2)(a) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2) (3), Sch. 16 para. 23(3)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

174 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F543 S. 121(2)(b) and word repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2)(3), Sch. 16 para. 23(3)(b), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F544 Word in s. 121(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 156(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F545 S. 121(4)(c)(i) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2)(3), Sch. 16 para. 23(4)(a)(b), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F546 Words in s. 121(4)(c)(ii) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2)(3), Sch. 16 para. 23(4)(c), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F547 Word in s. 121(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 156(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F548 Words in s. 121(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 156(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F549 Words in s. 121(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 156(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F550 Words in s. 121(8) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2) (3), Sch. 16 para. 23(5)(b), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F551 Word in s. 121(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 156(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F552 S. 121(10) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 406, 411(2)(3), Sch. 16 para. 23(6), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

122 Primacy of [F114EU] law

(1) Advice and information published by virtue of section 106(1) F553... shall include such advice and information about the effect of [F114EU] law, and anything done under or in accordance with it, on the provisions of this Part as the [F554CMA] considers appropriate.

(2) Advice and information published by the [F555CMA] by virtue of section 106(1) shall, in particular, include advice and information about the circumstances in which the duties of the [F555CMA] under sections 22 and 33 do not apply as a result of the [F556EC 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 [F556EC 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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

175

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F553 Words in s. 122(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 157(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F554 Word in s. 122(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 157(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F555 Word in s. 122(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 157(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F556 Words in s. 122(2)(4) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments)

Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(24)

123 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 [F557CMA].

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

Textual Amendments F557 Word in s. 123(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 158 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Other

124 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—

176 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 34[F558, 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 [F55934ZC(6),] 40(8), [F56041B(6),][F56144(11),] 52(8) (including that enactment as applied by section 65(3)), 58(3), 68[F562, 73B(6),][F563 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)), [F56434ZC(6),] 40(8), [F56541B(6),] 52(8) (including that enactment as applied by section 65(3)), [F56673B(6),][F56794A(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, [F56844(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.

Textual Amendments F558 Word in s. 124(3) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3),

Sch. 16 para. 24(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F559 Word in s. 124(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F560 Word in s. 124(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

177

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F561 Word in s. 124(4) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 24(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F562 Word in s. 124(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(2)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F563 Word in s. 124(4) inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(3)(a), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F564 Word in s. 124(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F565 Word in s. 124(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F566 Word in s. 124(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 13(3)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F567 Words in s. 124(5) inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(3)(b), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F568 Words in s. 124(6) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 24(4) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

Modifications etc. (not altering text) C368 S. 124 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(aa)(22) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

125 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.

Modifications etc. (not altering text) C369 S. 125 applied (20.6.2003) by 1980 c. 21, s. 11B(2) (as inserted by Enterprise Act 2002 (c. 40), ss. 278,

279, Sch. 25 para. 10(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

178 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

S. 125 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(bb)(23) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23)) S. 125 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), art. 5 S. 125 applied (S.) (11.11.2005) by The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 (S.I. 2005/3172), art. 10(3)-(7)

C370 S. 125 applied (with modifications) (1.11.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 10 para. 10(1)(j)(2)(12); S.I. 2012/2657, art. 2(2)

126 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).

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

179

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F569an 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).

Textual Amendments F569 Words in s. 126(6) substituted (25.7.2003 for certain purposes and 29.12.2003 for certain purposes)

by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(2) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) (with art. 11)

Modifications etc. (not altering text) C371 S. 126 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(cc)(24) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

127 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;

[F570(aa) 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) any individual and that individual’s spouse [F571, civil partner] or partner and

any relative, or spouse or partner of a relative, of that individual or of that individual’s spouse [F571, civil partner] or partner;

(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 [F571, civil partner] or partner and relatives of any of them; or

180 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F571, civil partner] or partner shall include a former spouse [F571, civil partner] or partner.

Textual Amendments F570 S. 127(1)(aa) substituted (29.12.2003) for word by Communications Act 2003 (c. 21), ss. 375(3),

411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F571 Words in s. 127(4)(a)(c)(6) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 168; S.I. 2005/3175, art. 2, Sch. 1

Modifications etc. (not altering text) C372 S. 127 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(dd)(25) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C373 S. 127 applied (20.6.2003) by The Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 (S.I. 2003/1370), art. 2, Sch. para. 7 S. 127 applied (29.12.2004) by The Water Mergers (Determination of Turnover) Regulations 2004 (S.I. 2004/3206), reg. 2(b), Sch. para. 7

C374 S. 127 applied in part (5.12.2019 at 12.10 p.m.) by The Public Interest Merger Reference (Gardner Aerospace Holdings Ltd. and Impcross Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1490), arts. 1, 5

C375 S. 127(1)(2) applied (20.12.2019 at 9.20 a.m.) by The Public Interest Merger Reference (Mettis Aerospace Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1515), arts. 1, 4

C376 S. 127(4)-(6) applied (20.12.2019 at 9.20 a.m.) by The Public Interest Merger Reference (Mettis Aerospace Ltd.) (Pre-emptive Action) Order 2019 (S.I. 2019/1515), arts. 1, 4

128 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;

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

181

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F572(within the meaning of paragraph 17 of Schedule 3A to the Communications Act 2003 (the electronic communications code)) for sharing the use of electronic communications 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.

Textual Amendments F572 Words in s. 128(5) substituted (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3

para. 43; S.I. 2017/1286, reg. 2(d)

Modifications etc. (not altering text) C377 S. 128 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(ee)(26) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

129 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;

“[F114EU] 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; “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;

182 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

and who does not receive or seek to receive the goods or services in the course of a business carried on by him;

“customer” includes a customer who is not a consumer; [F573“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; [F574“the European Merger Regulations” means Council Regulation (EEC)

No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 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 [F575section 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;

[F576“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.

(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.

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

183

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F573 S. 129(1): definition of "the EC Merger Regulation" inserted (1.5.2004) by The EC Merger Control

(Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(25)(b) F574 S. 129(1): definition of "the European Merger Regulations" ceased to have effect (1.5.2004) by virtue

of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(25)(a)

F575 Words in s. 129(1) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 199(3) (with art. 10)

F576 Words in s. 129(1) inserted (24.10.2008) (with application in accordance with art. 1(2) of the amending S.I.) by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008 (S.I. 2008/2645), arts. 1(1), 3(1)

Modifications etc. (not altering text) C378 S. 129 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate

Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(ff)(27) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

130 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) [F577Broadcasting Section 44(9)] Business (and carrying on business) Section 129(1) and (3) Change of circumstances Section 129(1) F578

. . . F578

. . . [F579The CMA Section 273] [F114EU] 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)

184 Enterprise Act 2002 (c. 40) Part 3 – Mergers

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F580EC 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) [F581European Merger Regulations Section 129(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) [F582Media public interest consideration Section 44(8)] Merger notice Section 96(2) Modify Section 129(1) [F583Newspaper Section 44(10)] [F584Newspaper enterprise Section 58A(3)] Notice Section 129(1) Notified arrangements Section 96(6) [F585OFCOM Section 43(6)] F578

. . . F578

. . . 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)

Enterprise Act 2002 (c. 40) Part 3 – Mergers Chapter 5 – Supplementary Document Generated: 2021-02-16

185

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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 [F586CMA] 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)

[F587The UK financial system] [F588Section 129(1)] Undertakings under section 80 Section 80(6) F589

. . . F589

. . . United Kingdom national Section 129(1)

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F577 S. 130: entry inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch.

16 para. 25(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F578 Words in s. 130 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 159(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F579 Words in s. 130 inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 159(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F580 S. 130: entry inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(26)(b)

F581 S. 130: entry ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(26)(a)

F582 S. 130: entry inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 25(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F583 S. 130: entry inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 25(4) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

186 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 5 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F584 S. 130: entry inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 25(4) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F585 S. 130: entry inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 25(5) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F586 Word in s. 130 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 159(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F587 S. 130 entry inserted (24.10.2008) (with application in accordance with art. 1(2) of the amending S.I.) by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008 (S.I. 2008/2645), arts. 1(1), 3(2)

F588 S. 130 entry inserted (24.10.2008) (with application in accordance with art. 1(2) of the amending S.I.) by The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008 (S.I. 2008/2645), arts. 1(1), 3(2)(b)

F589 Words in s. 130 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 37; S.I. 2014/416, art. 2(1)(f) (with Sch.)

PART 4

[F590MARKET STUDIES AND] MARKET INVESTIGATIONS

Textual Amendments F590 Words in Pt. 4 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 8; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C379 Pt. 4 modified (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 73(3), 306(4); S.I. 2013/160,

art. 2(2) (with arts. 7-9) C380 Pt. 4 modified in part (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 60(3), 110(1) (with ss. 60(4),

77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3) C381 Pt. 4 functions made exercisable concurrently (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 60(2),

110(1) (with s. 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3) C382 Pt. 4 modified by 2012 c. 7, s. 73(3)(b) (as substituted (1.4.2014) by The Enterprise and Regulatory

Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 189(4)(c) (with art. 3))

C383 Pt. 4 modified by 2000 c. 38, s. 86(4A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 154(6) (with art. 3))

C384 Pt. 4 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 57; S.I. 2014/416, art. 2(1)(c) (with Sch.)

C385 Pt. 4 modified by 2012 c. 19, s. 60(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 197(5) (with art. 3))

C386 Pt. 4 certain functions made exercisable concurrently (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 59(1)-(5), 148(5); S.I. 2014/823, art.

C387 Pt. 4 modified by 1991 c. 56, s. 31(4) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 84(5)(d) (with art. 3))

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

187

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C388 Pt. 4 modified by 1989 c. 29, s. 43(2B) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(d) (with art. 3))

C389 Pt. 4 modified by 1986 c. 44, s. 36A (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(d) (with art. 3))

C390 Pt. 4 modified by 1993 c. 43, s. 67(4)(d) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 105(4)(d) (with art. 3))

C391 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1988 c. 41, Sch. 7 para. 20(5)-(8) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, Sch. 11 para. 11(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C392 Pt. 4 (ss. 131-184) modified (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 23(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 22(2)); S.I. 2003/1397, art. 2(1), Sch.

C393 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1993 c. 43, s. 67(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 21(2)); S.I. 2003/1397, art. 2(1), Sch.

C394 Pt. 4 (ss. 131-184) modified (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 46(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 20(2)); S.I. 2003/1397, art. 2(1), Sch.

C395 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1991 c. 56, s. 31(4) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(3)); S.I. 2003/1397, art. 2(1), Sch.

C396 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1991 c. 56, s. 31(2A) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(2)); S.I. 2003/1397, art. 2(1), Sch.

C397 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1984 c. 12, s. 50(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 16(2)); S.I. 2003/1397, art. 2(1), Sch.

C398 Pt. 4 (ss. 131-184) modified (20.6.2003) by 1989 c. 29, s. 43(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. Pt. 4 (ss. 131-184) modified (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 370(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) Pt. 4 (ss. 131-184) modified (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), 29(4) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)

CHAPTER 1

[F591MARKET STUDIES AND] MARKET INVESTIGATION REFERENCES

Textual Amendments F591 Words in Pt. 4 Ch. 1 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 12 para. 9; S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F592Market studies

Textual Amendments F592 S. 130A and cross-heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 12 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

188 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

130A Duty to publish market study notice

(1) Where the CMA is proposing to carry out its functions under section 5 in relation to a matter for the purposes mentioned in subsection (2), the CMA must publish a notice under this section (referred to in this Part as a “market study notice”).

(2) The purposes are— (a) to consider the extent to which a matter in relation to the acquisition or

supply of goods or services of one or more than one description in the United Kingdom has or may have effects adverse to the interests of consumers; and

(b) to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects.

(3) A market study notice shall, in particular, specify— (a) the matter in relation to which the CMA is proposing to carry out its functions

under section 5; (b) the period during which representations may be made to the CMA in relation

to the matter; and (c) the dates by which the CMA is required to comply with the requirements

imposed on it by sections 131A and 131B.]

Modifications etc. (not altering text) C399 S. 130A applied (with modifications) by S.I. 2006/3336 (N.I. 21), art. 29(4A) (as inserted (1.4.2014)

by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 253(6) (with art. 3))

C400 S. 130A applied (with modifications) by S.I. 1996/275 (N.I. 2), art. 23(2C) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 221(5) (with art. 3))

C401 S. 130A applied (with modifications) by S.I. 1992/231 (N.I. 1), art. 46(2C) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 216(5) (with art. 3))

C402 S. 130A applied (with modifications) by 2012 c. 19, s. 60(4A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 197(7) (with art. 3))

C403 S. 130A applied (with modifications) by 2012 c. 7, s. 73(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 189(5) (with art. 3))

C404 S. 130A applied (with modifications) by 2003 c. 21, s. 370(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(5) (with art. 3))

C405 S. 130A applied (with modifications) by 2000 c. 38, s. 86(5A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 154(8) (with art. 3))

C406 S. 130A applied (with modifications) by 1993 c. 43, s. 67(2C) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 105(5) (with art. 3))

C407 S. 130A applied (with modifications) by 1991 c. 56, s. 31(4ZA) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 84(6) (with art. 3))

C408 S. 130A applied (with modifications) by 1989 c. 29, s. 43(2C) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(5) (with art. 3))

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

189

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C409 S. 130A applied (with modifications) by 1986 c. 44, s. 36A(2C) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(5) (with art. 3))

C410 S. 130A modified (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 59(6), 148(5); S.I. 2014/823, art. 2(a)

C411 S. 130A modified by 2000 c. 8, s. 234I(6) (as inserted (1.4.2015) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 8 para. 3; S.I. 2014/2458, art. 3(b)(v))

Making of references

131 Power of [F593CMA] to make references

(1) [F594The CMA may, subject to subsection (4), 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] 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.

[F595(2A) In a case where the feature or each of the features concerned falls within subsection (2) (b) or (c), a reference under subsection (1) may be made in relation to more than one market in the United Kingdom for 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 [F596section 156(A1) or (1)]; or (b) a reference has been made under section 132 [F597or 140A(6)] 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— [F598“cross-market reference” means a reference under this section which

falls within subsection (2A) or a reference under section 132 which falls within subsection (3A) of that section (and see section 140A);]

“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;

190 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

“market investigation reference” means a reference under this section or section 132 [F599or 140A(6)];

[F600“ordinary reference” means a reference under this section or section 132 which is not a cross-market reference (and see section 140A);]

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

Textual Amendments F593 Word in s. 131 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 163(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F594 Words in s. 131(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 163(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F595 S. 131(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 33(2),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F596 Words in s. 131(4)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

33(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F597 Words in s. 131(4)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 2(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F598 Words in s. 131(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 33(4)

(a), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F599 Words in s. 131(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 2(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F600 Words in s. 131(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 33(4)

(b), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

[F601131ADecisions about references under section 131: consultation

(1) This section applies to a case where the CMA has published a market study notice and—

(a) the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or

(b) a representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that such a reference should be made but the CMA is proposing not to make such a reference.

(2) The CMA shall— (a) publish notice of the proposal concerned; and (b) consult the relevant persons about the proposal, in such manner as it considers

practicable, before deciding whether to make a reference.

(3) The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious.

(4) For the purposes of subsection (2), a person is a “relevant person” if the CMA considers that its decision whether to make a reference is likely to have a substantial impact on the person's interests.

(5) In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

191

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to—

(a) the restrictions imposed by the time-table for making the decision (see section 131B); and

(b) any need to keep what is proposed, or the reasons for it, confidential.

Textual Amendments F601 Ss. 131A-131C inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 2; S.I. 2014/416, art. 2(1)(d) (with Sch.)

131B Market studies and the making of decisions to refer: time-limits

(1) Where the CMA has published a market study notice in a case to which section 131A applies, the CMA shall, within the period of 6 months beginning with the date on which it publishes the notice—

(a) publish the notice under section 131A(2)(a); and (b) begin the process of consultation under section 131A(2)(b) (but the CMA need

not complete the process within that period).

(2) Subsection (3) applies where— (a) the CMA has published a market study notice; (b) no representation has been made to the CMA within the period specified in the

notice under section 130A(3)(b) to the effect that a reference under section 131 should be made in relation to the matter specified in the notice; and

(3) The CMA shall, within the period of 6 months beginning with the date on which it publishes the market study notice, publish notice of the decision not to make a reference.

(4) Where the CMA has published a market study notice it shall, within the period of 12 months beginning with the date on which it publishes the notice, prepare and publish a report (referred to in this Part as a “market study report”) which sets out—

(a) the findings of the CMA in relation to the matter specified in the notice; and (b) the action (if any) which the CMA proposes to take in relation to the matter.

(5) In a case to which section 131A applies, the market study report shall, in particular, contain—

(a) the decision of the CMA to make a reference under section 131 in relation to the matter specified in the market study notice, the decision to accept an undertaking under section 154 instead of making such a reference or (as the case may be) the decision otherwise not to make such a reference;

(b) the CMA's reasons for the decision; and (c) such information as the CMA considers appropriate for facilitating a proper

understanding of its reasons for the decision.

(6) Where a market study report contains a decision of the CMA to make a reference under section 131 in relation to a matter, the CMA shall, at the same time as it publishes the report, make the reference.

192 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(7) This section is subject to section 140A (duty of Secretary of State to refer in public interest intervention cases).

Textual Amendments F601 Ss. 131A-131C inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 2; S.I. 2014/416, art. 2(1)(d) (with Sch.)

131C Time-limits under section 131B: supplementary

(1) The Secretary of State may by order amend section 131B so as to alter one or more of the following periods—

(a) the period of 6 months mentioned in subsection (1) or (3) or any period for the time being mentioned in either of those subsections in substitution for that period;

(b) the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period.

(2) But no alteration may be made by virtue of subsection (1) which results in— (a) the period for the time being mentioned in subsection (1) or (3) exceeding 6

months; or (b) the period for the time being mentioned in subsection (4) exceeding 12

months.

(3) Before making an order under this section the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.]

Textual Amendments F601 Ss. 131A-131C inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 2; S.I. 2014/416, art. 2(1)(d) (with Sch.)

132 Ministerial power to make references

(1) Subsection (3) applies where, in relation to any goods or services[F602— (a)] the appropriate Minister is not satisfied with a decision of the [F603CMA] not

to make a reference under section 131[F604; and (b) in a case in which the CMA has published a market study notice under

section 130A, the period permitted by section 131B for the preparation and publication by the CMA of the market study report has expired.]

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

(a) has brought to the attention of the [F603CMA] information which the appropriate Minister considers to be relevant to the question of whether the [F603CMA] should make a reference under section 131; but

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

193

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) is not satisfied that the [F603CMA] will decide, within such period as the appropriate Minister considers to be reasonable, whether [F605to publish a market study notice in relation to the matter concerned].

(3) The appropriate Minister may, subject to subsection (4), make a reference to the [F606chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013] 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.

[F607(3A) In a case where the feature or each of the features concerned falls within section 131(2) (b) or (c), a reference under subsection (3) may be made in relation to more than one market in the United Kingdom for goods or services.]

(4) No reference shall be made under this section if[F608— (a)] the making of the reference is prevented by [F609section 156(A1) or (1)][F610; or (b) a reference has been made under section 140A(6) in relation to the same matter

but has not been finally determined.]

(5) In this Part “the appropriate Minister” means— (a) the Secretary of State; F611... (b) the Secretary of State and one or more than one other Minister of the Crown

acting jointly; [F612(c) the Scottish Ministers and the Secretary of State acting jointly; or

(d) the Scottish Ministers, the Secretary of State and one or more than one other Minister of the Crown, acting jointly.]

Textual Amendments F602 Word in s. 132(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 10(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F603 Word in s. 132(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 164(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F604 S. 132(1)(b) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 10(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F605 Words in s. 132(2)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 10(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F606 Words in s. 132(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 164(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F607 S. 132(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 34(2),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F608 Words in s. 132(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 3(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F609 Words in s. 132(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

34(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F610 Words in s. 132(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 3(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F611 Word in s. 132(5) omitted (23.5.2016) by virtue of Scotland Act 2016 (c. 11), ss. 63(a), 72(7) F612 S. 132(5)(c)(d) inserted (23.5.2016) by Scotland Act 2016 (c. 11), ss. 63(b), 72(7)

194 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

133 Contents 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; F613... (c) [F614in the case of an ordinary reference,] the description of goods or services

to which the feature or combination of features concerned relates[F615; and (d) in the case of a cross-market reference, the feature or features concerned and

the descriptions of goods or services to which it or they relate.]

(2) A market investigation reference may be framed so as to require the [F616group constituted by the chair of the CMA in respect of the reference] 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 [F617or, in the case of a cross-market reference, supplies], of a description specified in the reference, of the goods or services concerned; or

(b) an acquisition [F618or, in the case of a cross-market reference, acquisitions], 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.

Textual Amendments F613 Word in s. 133(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 9 para. 2(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F614 Words in s. 133(1)(c) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 2(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F615 S. 133(1)(d) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 2(2)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F616 Words in s. 133(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 165 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F617 Words in s. 133(2)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 2(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F618 Words in s. 133(2)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 2(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Determination of references

[F619133AFunctions to be exercised by CMA groups

(1) Where a reference is made to the chair of the CMA under section 131, 132 or 140A 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 134 to 138B, except for section 135(1);

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

195

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) sections 140B to 145, 148, 148A and 151; (c) sections 157 and 158; (d) section 159; (e) section 160, except for subsection (6) of that section; (f) section 161, except for subsection (5) of that section; (g) section 162(4), so far as relating to an enforcement undertaking or

enforcement order made on behalf of the CMA by the group; (h) section 164(2)(b), so far as relating to an enforcement order made on behalf

of the CMA by the group; (i) section 167, so far as relating to an enforcement undertaking or enforcement

order made on behalf of the CMA by the group; (j) section 168; (k) section 169, so far as relating to a decision mentioned in paragraph (a)(iii) of

the definition of relevant decision in subsection (6) of that section; (l) section 172, so far as relating to anything done on behalf of the CMA by the

group; (m) section 174, 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;

(n) sections 174A to 174D, so far as relating to a notice given under section 174 on behalf of the CMA by the group;

(o) section 179(5)(b), so far as relating to a decision of the group; (p) 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) Nothing in subsection (1) prevents the CMA Board from carrying out 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 160 and Schedule 10, so far as relating to the making of an order under section 160;

(b) sections 159 to 161 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

Textual Amendments F619 S. 133A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5

para. 166 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

134 Questions to be decided on market investigation references

(1) The [F620CMA] shall, on [F621an ordinary] reference, decide whether any feature, or combination of features, of each relevant market 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.

196 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F622(1A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, 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, in relation to [F623an ordinary] reference, there is an adverse effect on competition if any feature, or combination of features, of a relevant market 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.

[F624(2A) For the purposes of this Part, in relation to a cross-market reference, there is an adverse effect on competition if a feature or a combination of the features specified in the reference, as that feature or combination of features relates to goods or services of one or more than one of the descriptions so specified, 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.]

(3) In subsections (1) and (2) “relevant market” means— (a) in the case of subsection (2) so far as it applies in connection with a possible

reference, a market in the United Kingdom— (i) for goods or services of a description to be specified in the reference;

and (ii) which would not be excluded from investigation by virtue of

section 133(2); and (b) in any other case, a market in the United Kingdom—

(i) for goods or services of a description specified in the reference concerned; and

(ii) which is not excluded from investigation by virtue of section 133(2).

(4) The [F625CMA] shall, if it has decided on a market investigation reference that there is an adverse effect on competition, decide the following additional questions—

(a) whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;

(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on 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.

(5) For the purposes of this Part, in relation to a market investigation reference, there is a detrimental effect on customers if there is a detrimental effect on customers or future customers in the form of—

(a) higher prices, lower quality or less choice of goods or services in any market in the United Kingdom (whether or not the market [F626or markets] to which the feature or features concerned relate); or

(b) less innovation in relation to such goods or services.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

197

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) In deciding the questions mentioned in subsection (4), the [F627CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(7) In deciding the questions mentioned in subsection (4), the [F627CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market [F628or markets] concerned.

(8) For the purposes of this Part a benefit is a relevant customer benefit of a feature or features of a market if—

(a) it is a benefit to customers or future 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 [F629 or markets] to which the feature or features concerned relate); or

(ii) greater innovation in relation to such goods or services; and (b) the [F630CMA or (as the case may be) the Secretary of State] believes that—

(i) the benefit has accrued as a result (whether wholly or partly) of the feature or features concerned or may be expected to accrue within a reasonable period as a result (whether wholly or partly) of that feature or those features; and

(ii) the benefit was, or is, unlikely to accrue without the feature or features concerned.

Textual Amendments F620 Word in s. 134(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 167(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F621 Words in s. 134(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 3(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F622 S. 134(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

9 para. 3(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F623 Words in s. 134(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 3(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F624 S. 134(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

9 para. 3(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F625 Word in s. 134(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 167(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F626 Words in s. 134(5)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 3(6); S.I. 2014/416, art. 2(1)(d) (with Sch.) F627 Word in s. 134(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 167(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F628 Words in s. 134(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 3(7); S.I. 2014/416, art. 2(1)(d) (with Sch.) F629 Words in s. 134(8)(a)(i) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 3(8); S.I. 2014/416, art. 2(1)(d) (with Sch.) F630 Words in s. 134(8)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 167(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

198 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C412 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

135 Variation of market investigation references

(1) The [F631CMA] or (as the case may be) the appropriate Minister may at any time vary a market investigation reference made [F632by it under section 131 or (as the case may be) by the appropriate Minister under section 132].

(2) The Office of Fair TradingF633... appropriate Minister shall consult the [F634CMA] before varying any such reference [F635made by him].

(3) Subsection (2) shall not apply if the [F636CMA] has requested the variation concerned. F637(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F631 Word in s. 135(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 168(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F632 Word in s. 135(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.) F633 Words in s. 135(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 168(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F634 Word in s. 135(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 168(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F635 Words in s. 135(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 168(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F636 Word in s. 135(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 168(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F637 S. 135(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 11; S.I. 2014/416, art. 2(1)(d) (with Sch.)

136 Investigations and reports on market investigation references

(1) The [F638CMA] shall prepare and publish a report on a market investigation reference within the period permitted by section 137.

(2) The report shall, in particular, contain— (a) the decisions of the [F638CMA] on the questions which it is required to answer

by virtue of section 134; (b) its reasons for its decisions; and (c) such information as the [F638CMA] considers appropriate for facilitating a

proper understanding of those questions and of its reasons for its decisions.

(3) The [F638CMA] shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

199

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F639(4) Where a reference has been made by the appropriate Minister under section 132 the CMA shall, at the same time as the report under this section is published, give it to the appropriate Minister.]

(5) Where a reference has been made by the [F640CMA] under section 131 or by the appropriate Minister under section 132 in circumstances in which a reference could have been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the [F641CMA] shall, at the same time as the report under this section is published, give a copy of it to the relevant sectoral regulator concerned.

F642(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In this Part “relevant sectoral enactment” means— (a) [F643in relation to the Director General of Telecommunications, section 50 of

the Telecommunications Act 1984 (c. 12);] (b) in relation to the Gas and Electricity Markets Authority, section 36A of the

Gas Act 1986 (c. 44) or (as the case may be) section 43 of the Electricity Act 1989 (c. 29);

(c) in relation to [F644the Water Services Regulation Authority] , section 31 of the Water Industry Act 1991 (c. 56);

(d) F645. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) in relation to the [F646Office of Rail and Road], section 67 of the Railways Act

1993 (c. 43); [F647(ea) in relation to the Financial Conduct Authority, section 234I of the Financial

Services and Markets Act 2000;] (f) F648. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (g) in relation to the Civil Aviation Authority, section 86 of the Transport Act

2000 (c. 38). [F649 or section 60 of the Civil Aviation Act 2012;] [F650(h) in relation to the Office of Communications, sections 370 and 371 of the

Communications Act 2003.] [F651(h) in relation to the Northern Ireland Authority for Utility Regulation, Article

46 of the Electricity (Northern Ireland) Order 1992, Article 23 of the Gas (Northern Ireland) Order 1996 or Article 29 of the Water and Sewerage Services (Northern Ireland) Order 2006.]

[F652(i) in relation to Monitor, section 73 of the Health and Social Care Act 2012.] [F653(j) in relation to the Payment Systems Regulator, section 59 of the Financial

Services (Banking Reform) Act 2013.]

(8) In this Part “relevant sectoral regulator” means [F654the Director General of Telecommunications] , the Gas and Electricity Markets Authority, [F644the Water Services Regulation Authority], F655. . . , the [F646Office of Rail and Road], [F656the Financial Conduct Authority,]F657. . . , the Civil Aviation Authority or the Office of [F658Communications,] the Northern Ireland Authority for Utility Regulation[F659, Monitor or the Payment Systems Regulator.]

(9) The Secretary of State may by order modify subsection (7) or (8).

[F660(10) In this section “the Payment Systems Regulator” means the body established under section 40 of the Financial Services (Banking Reform) Act 2013.]

200 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F638 Word in s. 136(1)-(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (2013

c. 24), s. 26(3), Sch. 5 para. 169(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) Sch. F639 S. 136(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

5 para. 169(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F640 Word in s. 136(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 169(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F641 Word in s. 136(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 169(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F642 S. 136(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 169(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F643 S. 136(7)(a) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain further purposes)

by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1)(2) (with art. 11)

F644 Words in s. 136(7)(c)(8) substituted (1.4.2006) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 7 para. 36(2); S.I. 2005/2714, art. 4(f)

F645 S. 136(7)(d) repealed (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), 308, Sch. 13 (arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt II (subject to art. 3, Sch. 2)

F646 Words in s. 136(7)(e)(8) substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 4(q)(i)

F647 S. 136(7)(ea) inserted (1.4.2015) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 8 para. 10(2); S.I. 2014/2458, art. 3(b)(v)

F648 S. 136(7)(f) repealed (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), 308, Sch. 13 (arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F649 Words in s. 136(7)(g) inserted (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 61(11), 110(1) (with s. 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)

F650 S. 136(7)(h) inserted (25.7.2003 for certain purposes and 29.12.2003 for certain further purposes) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(4)(a) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1)(2) (with art. 11)

F651 S. 136: para. (h) added "at the end" of s. 136(7) (N.I.) (1.4.2007) by virtue of The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 408, Sch. 12 para. 46(1) (with arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F652 S. 136(7)(i) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 74(6)(a), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F653 S. 136(7)(j) inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 67(3)(a), 148(5); S.I. 2014/823, art. 2(g)

F654 S. 136(8): words "the Director of Telecommunications" are repealed (25.7.2003 for certain purposes and 29.12.2003 for certain further purposes) by virtue of Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1)(2) (with art. 11)

F655 Words in s. 136(8) repealed (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), 308, Sch. 13 (arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F656 Words in s. 136(8) inserted (1.4.2015) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 8 para. 10(3); S.I. 2014/2458, art. 3(b)(v)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

201

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F657 Words in s. 136(8) repealed (N.I.) (1.4.1007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 308, Sch. 13 (arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F658 Words in s. 136(8) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 74(6)(b), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F659 Words in s. 136(8) substituted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 67(3)(b), 148(5); S.I. 2014/823, art. 2(g)

F660 S. 136(10) inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 67(3)(c), 148(5); S.I. 2014/823, art. 2(g)

137 Time-limits for market investigations and reports

(1) The [F661CMA] shall prepare and publish its report under section 136 within the period of [F66218 months] beginning with the date of the market investigation reference concerned.

(2) Subsection (1) is subject to section 151(3) and (5).

[F663(2A) The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so.

(2B) An extension under subsection (2A) shall come into force when published under section 172.

(2C) No more than one extension is possible under subsection (2A).]

[F664(3) The Secretary of State may by order amend this section so as to alter one or more of the following periods—

(a) the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;

(b) the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.]

[F665(4) But no alteration shall be made by virtue of subsection (3) which results in— (a) the period for the time being mentioned in subsection (1) exceeding 18

months; or (b) the period for the time being mentioned in subsection (2A) exceeding 6

months.]

(5) An order under subsection (3) shall not affect any period of time within which the [F666CMA] is under a duty to prepare and publish its report under section 136 in relation to a market investigation reference if the [F666CMA] is already under that duty in relation to that reference when the order is made.

(6) Before making an order under subsection (3) the Secretary of State shall consult the [F667CMA] and such other persons as he considers appropriate.

(7) References in this Part to the date of a market investigation reference shall be construed as references to the date specified in the reference as the date on which it is made.

202 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F661 Word in s. 137(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 170 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F662 Words in s. 137(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 3(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F663 S. 137(2A)-(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 3(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F664 S. 137(3) substituted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by

Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 3(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F665 S. 137(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 3(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F666 Word in s. 137(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 170 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F667 Word in s. 137(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 170 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

138 Duty to remedy adverse effects

(1) Subsection (2) applies where a report of the [F668CMA] has been prepared and published under section 136 within the period permitted by section 137 and contains the decision that there is one or more than one adverse effect on competition.

(2) The [F668CMA] shall, [F669within the period permitted by section 138A,] in relation to each adverse effect on competition, take such action under section 159 or 161 as it considers to be reasonable and practicable—

(a) to remedy, mitigate or prevent the adverse effect on competition concerned; and

(b) to remedy, mitigate or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the adverse effect on competition.

(3) The decisions of the [F668CMA] under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the [F668CMA] otherwise has a special reason for deciding differently.

(4) In making a decision under subsection (2), the [F668CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(5) In making a decision under subsection (2), the [F668CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market [F670or markets] concerned.

(6) The [F668CMA] shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—

(a) no detrimental effect on customers has resulted from the adverse effect on competition; and

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 1 – Market Studies and market investigation references Document Generated: 2021-02-16

203

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) the adverse effect on competition is not being remedied, mitigated or prevented.

Textual Amendments F668 Word in s. 138(1)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (2013

c. 24), s. 26(3), Sch. 5 para. 171 (with s. 28); S.I. 2014/416, art. 2(1)(d) Sch. F669 Words in s. 138(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.) F670 Words in s. 138(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F671138ATime-limits for discharging duty under section 138

(1) The CMA shall discharge its duty under section 138(2) within the period of 6 months beginning with the date on which it publishes the report concerned under section 136.

(2) The CMA may extend, by no more than 4 months, the period within which its duty under section 138(2) is required to 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 138(2) is required to be discharged if it considers that—

(a) a person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 174 which was given in relation to the reference; and

(b) the failure is preventing the CMA from properly discharging its duty under section 138(2).

(4) An extension under subsection (2) or (3) shall come into force when published under section 172.

(5) 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.

Textual Amendments F671 Ss. 138A, 138B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 5; S.I. 2014/416, art. 2(1)(d) (with Sch.)

138B Section 138A: supplementary

(1) A period extended under section 138A(2) may also be extended under section 138A(3), and a period extended under section 138A(3) may also be extended under section 138A(2).

(2) No more than one extension is possible under section 138A(2).

204 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) Where a period is extended or further extended under section 138A(2) or (3), 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 within which the CMA shall discharge its duty under section 138(2)

is further extended; (b) the further extension and at least one previous extension is made under

section 138A(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) shall be disregarded.

(6) The Secretary of State may by order amend section 138A so as to alter one or more of the following periods—

(a) the period of 6 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;

(b) the period of 4 months mentioned in subsection (2) or any period for the time being there mentioned in substitution for that period.

(7) But no alteration shall be made by virtue of subsection (6) which results in— (a) the period for the time being mentioned in section 138A(1) exceeding 6

months; or (b) the period for the time being mentioned in section 138A(2) exceeding 4

months.

(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.]

Textual Amendments F671 Ss. 138A, 138B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 5; S.I. 2014/416, art. 2(1)(d) (with Sch.)

CHAPTER 2

PUBLIC INTEREST CASES

Intervention notices

139 Public interest intervention by Secretary of State

[F672(A1) This section applies where— (a) the CMA has published a market study notice in relation to a matter; or (b) the CMA has begun the process of consultation under section 169 in respect

of a decision of the kind mentioned in subsection (6)(a)(i) of that section.]

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

205

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F672(1) The Secretary of State may, within the permitted period, give a notice to the CMA if the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the matter.]

[F672(1A) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (a) of subsection (A1), is the period beginning with the publication of the market study notice and ending with—

(a) the acceptance by the CMA of an undertaking under section 154 instead of the making of a reference under section 131 in relation to the matter;

(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter;

(c) the making of such a reference in relation to the matter; or (d) in a case where the period permitted by section 131B for the preparation and

publication by the CMA of the market study report in relation to the matter has expired and no such report has been prepared or published, the end of that period.

(1B) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (b) of subsection (A1), is the period beginning with the date on which the CMA begins the process of consultation concerned and ending with—

(a) the acceptance by the CMA of an undertaking under section 154 instead of the making of a reference under section 131 in relation to the matter concerned;

(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter; or

(2) The Secretary of State may[F673, within the permitted period,] give a notice to the [F674CMA] if—

(a) the [F674CMA] is considering whether to accept— (i) an undertaking under section 154 instead of making a reference under

section 131 [F675in relation to the matter]; or (ii) an undertaking varying or superseding any such undertaking;

(b) the [F674CMA] has published a notice under section 155(1) or (4); and (c) the Secretary of State believes that it is or may be the case that one or more

than one public interest consideration is relevant to the [F676proposal to accept the undertaking].

[F677(2A) For the purposes of subsection (2), the permitted period is— (a) where the CMA publishes a notice under section 155(1), the period within

which representations may be made in relation to the proposed undertaking (as to which, see section 155(2)(f));

(b) where the CMA publishes a notice under section 155(4), the period within which representations may be made in relation to the proposed modifications to the proposed undertaking (as to which, see section 155(5)(c)).]

(3) In this Part “intervention notice” means a notice under subsection (1) or (2).

[F678(4) No more than one intervention notice shall be given under subsection (1) in relation to the same matter.

206 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(4A) An intervention notice shall not be given under subsection (2) in relation to a proposal to accept an undertaking if the proposal relates to a matter in respect of which an intervention notice under subsection (1) has already been given.

(4B) No more than one intervention notice shall be given under subsection (2) in relation to the same proposed undertaking or in relation to proposed undertakings which do not differ from each other in any material respect.]

[F679(4C) In this section, a reference to the acceptance of an undertaking shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of this section.]

(5) 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 153 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.

(6) 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.

(7) For the purposes of this Part a public interest consideration is finalised if— (a) it is specified in section 153 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 (6) of section 181 and within the period mentioned in that subsection.

Textual Amendments F672 Ss. 139(A1)-(1B) substituted for (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

35(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F673 Words in s. 139(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(4)

(a), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F674 Word in s. 139(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 172 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F675 Words in s. 139(2)(a)(i) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

35(4)(b), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F676 Words in s. 139(2)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

35(4)(c), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F677 S. 139(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(5),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F678 S. 139(4)(4A)(4B) substituted (1.4.2014) for s. 139(4) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 35(6) F679 S. 139(4C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(7),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

207

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Intervention notices under section 139(1)

140 Intervention notices under section 139(1)

(1) An intervention notice under section 139(1) shall state— [F680(a) the matter to which the market study notice or (as the case may be) the

consultation under section 169 concerned relates; (b) the date of publication of that notice or (as the case may be) on which the

process of consultation began;] (c) the public interest consideration or considerations which are, or may be,

relevant to the [F681matter]; and (d) 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 the [F682matter], he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(1) and which is in force.

(4) An intervention notice under section 139(1) 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.

[F683(4A) An intervention notice under section 139(1) shall also cease to be in force if— (a) it mentions a public interest consideration which was not finalised on the

giving of the 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; (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; and

(e) the Secretary of State has not, by the end of that period of 24 weeks, made a reference under section 140A in relation to the matter.

(4B) Subsection (4D) applies in a case where— (a) an intervention notice ceases to be in force in accordance with

subsection (4A); (b) the CMA has, before the time at which the notice ceases to be in force,

prepared a market study report in relation to the matter within the period permitted by section 131B(4) and given it to the Secretary of State in accordance with section 140A(3)(b); and

(c) the report contains the decision of the CMA that it should make a reference in relation to the matter concerned under section 131.

(4C) Subsection (4D) also applies in a case where— (a) an intervention notice ceases to be in force in accordance with

subsection (4A); and

208 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) the CMA has, before the time at which the notice ceases to be in force— (i) decided that it should make an ordinary reference or a cross-market

reference under section 131 in relation to the matter concerned; and (ii) given a document containing its decision, the reasons for it and

such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision to the Secretary of State in accordance with section 140A(3)(c).

(4D) In a case to which this subsection applies— (a) the CMA shall, as soon as reasonably practicable, make a reference in relation

to the matter under section 131; and (b) the reference is to be treated for the purposes of this Part as having been made

in accordance with the requirements imposed by this Part.]

(5) For the purposes of subsection (4) a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter if—

[F684(za) the CMA accepts an undertaking under section 154 instead of making a reference under section 131 in relation to the matter;

(zb) the CMA publishes notice that it has otherwise decided not to make a reference under section 131 in relation to the matter;

(zc) the period permitted for the preparation by the CMA of the market study report in relation to the matter and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3) has expired and no such report has been so prepared or no such action has been taken;

(zd) the Secretary of State makes a reference under section 140A(5) in relation to the matter;]

(a) the period permitted by section 144 for the preparation of the report of the [F685CMA] under section 142 and for action to be taken in relation to it under section 143(1) or (3) [F686or (as the case may be) 143A(2) or (3)] has expired and no such report has been so prepared or no such action has been taken;

(b) the [F685CMA] decides under section 145(1) to terminate its investigation; (c) the report of the [F685CMA] has been prepared under section 142 and published

under section 143(1) [F687or (as the case may be) 143A(2) ] within the period permitted by section 144;

(d) the Secretary of State fails to make and publish a decision under subsection (2) of section 146 within the period required by subsection (3) of that section [F688or (as the case may be) fails to make and publish a decision under subsection (2) of section 146A within the period required by subsection (6) of that section];

(e) the Secretary of State decides under section 146(2) that no eligible public interest consideration is relevant [F689or (as the case may be) decides under section 146A(2) to make no finding at all in relation to the matter];

(f) the Secretary of State decides under section 147(2) [F690or (as the case may be) 147A(2)] neither to accept an undertaking under section 159 nor to make an order under section 161;

(g) the Secretary of State accepts an undertaking under section 159 or makes an order under section 161; or

(h) the Secretary of State decides to revoke the intervention notice concerned.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

209

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) For the purposes of subsections (4) and (5) the time when a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter is—

[F691(za) in a case falling within subsection (5)(za), the acceptance of the undertaking concerned;

(zb) in a case falling within subsection (5)(zb), the publication of the notice concerned;]

(a) in a case falling within subsection (5)[F692(zc),] (a) or (d), the expiry of the period concerned;

[F693(aa) in a case falling within subsection (5)(zd), the making of the reference concerned;]

(b) in a case falling within subsection (5)(b), (e), (f) or (h), the making of the decision concerned;

(d) in a case falling within subsection (5)(g), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

[F694(6A) In subsection (6)(za) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (5)(za) and (6)(za).]

(7) In subsection (6)(d) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action under section 147(2) [F695or (as the case may be) 147A(2)] involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (5)(g) and (6)(d).

Textual Amendments F680 S. 140(1)(a)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F681 Word in s. 140(1)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F682 Word in s. 140(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F683 S. 140(4A)-(4D) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 10 para. 5(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F684 S. 140(5)(za)-(zd) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(5)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F685 Word in s. 140(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 173 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F686 Words in s. 140(5)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F687 Words in s. 140(5)(c) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 5(5)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

210 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F688 Words in s. 140(5)(d) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(5)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F689 Words in s. 140(5)(e) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(5)(e); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F690 Words in s. 140(5)(f) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(5)(f); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F691 S. 140(6)(za)-(zb) inserted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(6)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F692 Word in s. 140(6)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F693 S. 140(6)(aa) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(6)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F694 S. 140(6A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F695 Words in s. 140(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 5(8); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F696140ASection 139(1) intervention notices: Secretary of State's duty to refer

(1) This section applies where— (a) the CMA has prepared a market study report in relation to a matter within the

period permitted by section 131B(4); (b) an intervention notice under section 139(1) is in force in relation to the matter

at the time when the CMA would (but for this section) be required to publish the report; and

(c) the report contains the decision of the CMA that it should make an ordinary reference or a cross-market reference in relation to the matter under section 131.

(2) This section also applies where— (a) the CMA has conducted a consultation under section 169 in respect of a

decision of the kind mentioned in subsection (6)(a)(i) of that section; (b) the CMA has decided that it should make an ordinary reference or a cross-

market reference in relation to the matter concerned under section 131; and (c) an intervention notice under section 139(1) is in force in relation to the matter

at the time when the CMA makes that decision.

(3) The CMA— (a) shall not exercise the power under section 131 to refer the matter; (b) in a case falling within subsection (1), shall not publish the market study

report under section 131B(4) and shall instead, within the period mentioned in section 131B(4), give the report to the Secretary of State; and

(i) its decision and the reasons for its decision; and (ii) such information as the CMA considers appropriate for facilitating a

proper understanding of the reasons for its decision.

(4) The Secretary of State shall decide whether any public interest consideration which was mentioned in the intervention notice is relevant to the matter in question.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

211

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(5) Where the Secretary of State decides that there is no relevant public interest consideration—

(a) the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; and

(b) the reference is to be treated for the purposes of this Part as an ordinary reference or (as the case may be) a cross-market reference made under section 131 in accordance with the requirements imposed by this Part.

(6) Where the Secretary of State decides that there is one or more than one relevant public interest consideration, the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(7) The Secretary of State shall specify in a reference made under subsection (6)— (a) the relevant public interest consideration or considerations; and (b) whether the reference is a restricted PI reference or a full PI reference (as to

which, see sections 141 and 141A respectively).

(8) Where the Secretary of State makes a full PI reference under subsection (6), the reference shall also specify whether the Secretary of State proposes to appoint a public interest expert under section 141B.

(9) For the purposes of this Part, a reference under subsection (6) is to be treated— (a) in a case where the decision of the CMA was that it should make an ordinary

reference, as an ordinary reference; (b) in a case where the decision of the CMA was that it should make a cross-

market reference, as a cross-market reference.

(10) In a case falling within subsection (1), the Secretary of State shall publish the market study report concerned at the same time as the Secretary of State makes a reference under this section.

(11) In a case falling within subsection (2), the Secretary of State shall publish the document given to the Secretary of State by the CMA under subsection (3)(c), at the same time as the Secretary of State makes a reference under this section.

(12) In this Part— “full PI reference” means a reference made by the Secretary of State under

subsection (6) which specifies that it is a full PI reference; “restricted PI reference” means a reference made by the Secretary of State

under subsection (6) which specifies that it is a restricted PI reference.]

Textual Amendments F696 S. 140A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(8), 103(3);

S.I. 2014/416, art. 2(1)(b) (with Sch.)

212 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

[F697140BVariation of restricted PI references and full PI references

(1) The Secretary of State may at any time vary a restricted PI reference or a full PI reference.

(2) The Secretary of State shall consult the CMA before varying any such reference.

(3) But subsection (2) does not apply if the CMA requested the variation concerned.

(4) No variation under this section is capable of altering the public interest consideration or considerations specified in the reference.]

Textual Amendments F697 S. 140B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10

para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

141 [F698Restricted PI references: questions to be decided by CMA]

[F699(1) This section applies where the Secretary of State makes a restricted PI reference.]

(2) The [F700CMA] shall[F701, on an ordinary reference,] decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) 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.

[F702(2A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, 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.]

(3) The [F703CMA] shall, if it has decided that there is an adverse effect on competition, decide the following additional questions—

(a) whether action should be taken by the Secretary of State under section 147 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;

(b) whether the [F703CMA] 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 the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on 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) The [F703CMA] shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148(1))—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

213

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) whether the [F703CMA] should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on 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.

(5) In deciding the questions mentioned in subsections (3) and (4), the [F703CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(6) In deciding the questions mentioned in subsections (3) and (4), the [F703CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market [F704or markets] concerned.

Textual Amendments F698 S. 141 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 7(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F699 S. 141(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 7(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F700 Word in s. 141(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 174 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F701 Words in s. 141(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 5(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F702 S. 141(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

9 para. 5(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F703 Words in s. 141(3)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 174 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F704 Words in s. 141(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 5(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C413 Ss. 35, 36, 47, 63, 134 and 141 extended (20.6.2003) by 1977 c. 37, s. 50A(6) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397 {art. 2(1)}, Sch. (with art. 8)

[F705141AFull PI references: questions to be decided by CMA

(1) This section applies where the Secretary of State makes a full PI reference.

(2) The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) 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.

214 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, 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) The CMA shall, if it has decided that there is an adverse effect on competition, decide whether, taking account only of any adverse effect on competition and the admissible public interest consideration or considerations concerned, any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.

(5) The CMA shall, if it has decided that any such feature or combination of features operates or may be expected to operate against the public interest, also decide separately the following additional questions—

(a) whether action should be taken by the Secretary of State under section 147A for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned;

(b) whether the CMA 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 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.

(6) The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148A(2))—

(b) whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on 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.

(7) In a case where the Secretary of State has appointed a public interest expert under section 141B in relation to a full PI reference, the CMA shall, in deciding the questions mentioned in subsections (4) and (5), have regard, in particular, to the views of the expert.

(8) In deciding the questions mentioned in subsection (5), the CMA shall, in particular, have regard to—

(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and

(b) any detrimental effects on customers so far as resulting from those effects.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

215

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(9) In deciding the questions mentioned in subsection (6), the CMA shall, in particular, have regard to—

(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned; and

(b) any detrimental effects on customers so far as resulting from it.

(10) In deciding the questions mentioned in subsections (5) and (6), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

(11) In this section, “admissible public interest consideration” means any public interest consideration specified in the reference concerned and which the CMA is not under a duty to disregard.

Textual Amendments F705 Ss. 141A, 141B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(9),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

141B Full PI references: power of Secretary of State to appoint expert

(1) This section applies where the Secretary of State makes a full PI reference.

(2) The Secretary of State may appoint one or more than one person to advise the CMA on the questions mentioned in subsections (4) and (5) of section 141A in relation to the reference.

(3) A person so appointed shall be a person who appears to the Secretary of State to have particular knowledge of, or expertise in, matters relating to a public interest consideration specified in the reference.

(4) Each person so appointed is referred to in this Part as a “public interest expert”.

(5) The terms and conditions of appointment of a public interest expert (including, in particular, as to remuneration) are to be determined by the Secretary of State.

(6) Any appointment of a public interest expert under this section shall be made within the period of 2 months beginning with the date of the reference concerned.

(7) Before appointing a public interest expert the Secretary of State shall consult the chair of the CMA.]

Textual Amendments F705 Ss. 141A, 141B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 35(9),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

142 Investigations and reports by [F706CMA]

(1) [F707Where the Secretary of State makes a restricted PI reference or a full PI reference, the CMA] shall prepare a report on the reference and take action in relation to it under

216 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

section 143(1) or (3) [F708or (as the case may be) 143A(2) or (3)] within the period permitted by section 144.

(2) The report shall, in particular, contain— (a) the decisions of the [F709CMA] on the questions which it is required to answer

by virtue of section 141 [F710or (as the case may be) 141A]; (b) its reasons for its decisions; F711... (c) such information as the [F709CMA] considers appropriate for facilitating

a proper understanding of those questions and of its reasons for its decisions[F712; and

(d) in the case of a report in relation to a full PI reference in respect of which the Secretary of State appointed a public interest expert, a summary of the views of the expert.]

[F713(2A) A summary of the views of a public interest expert in a report under this section shall be approved by the expert before action is taken in relation to the report under section 143A(2) or (3).]

(3) The [F709CMA] shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.

Textual Amendments F706 Word in s. 142 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 175(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F707 Words in s. 142(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 8(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F708 Words in s. 142(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 8(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F709 Word in s. 142(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 175(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F710 Words in s. 142(2)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 8(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F711 Word in s. 142(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 10 para. 8(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F712 S. 142(2)(d) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 8(3)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F713 S. 142(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 8(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

143 [F714Restricted PI references: publication]

[F715(A1) This section applies in relation to a report prepared under section 142 in respect of a restricted PI reference.]

(1) The [F716CMA] shall publish [F717the report] if it contains— (a) the decision of the [F716CMA] that there is no adverse effect on competition; or (b) the decisions of the [F716CMA] that there is one or more than one adverse effect

on competition but, on the question mentioned in section 141(4)(a) and in relation to each adverse effect on competition, that no action should be taken by it.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

217

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F718(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where [F719the report] contains the decisions of the [F720CMA] that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it, the [F720CMA] shall give the report to the Secretary of State.

(4) The Secretary of State shall publish, no later than publication of his decision under section 146(2) in relation to the case, a report of the [F720CMA] given to him under subsection (3) and not required to be published by virtue of section 148(2).

F721(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F721(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F721(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F721(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F714 S. 143 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 9(7); S.I. 2014/416, art. 2(1)(d) (with Sch.) F715 S. 143(A1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 9(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F716 Word in s. 143(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 176 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F717 Words in s. 143(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 9(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F718 S. 143(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 9(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F719 Words in s. 143(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 9(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F720 Word in s. 143(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 176 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F721 S. 143(5)-(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 9(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F722143AFull PI references: publication etc of reports of CMA

(1) This section applies in relation to a report prepared under section 142 in respect of a full PI reference.

(2) The CMA shall publish the report if it contains— (a) the decision of the CMA that there is no adverse effect on competition; (b) the decision of the CMA that there is an adverse effect on competition but that

the feature or combination of features which gave rise to it does not operate and may not be expected to operate against the public interest; or

(c) the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest but, on the question mentioned in section 141A(5)(a), and in relation to each effect adverse to the

218 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

public interest concerned, that no action should be taken by the Secretary of State.

(3) The CMA shall give the report to the Secretary of State if it contains the decisions of the CMA—

(a) that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest; and

(b) in relation to at least one effect adverse to the public interest concerned, that action should be taken by the Secretary of State.

(4) The Secretary of State shall publish, no later than publication of the Secretary of State's decision under section 146A(2) in relation to the case, a report of the CMA given to the Secretary of State under subsection (3) and not required to be published by virtue of section 148A(3).]

Textual Amendments F722 S. 143A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10

para. 10; S.I. 2014/416, art. 2(1)(d) (with Sch.)

144 Time-limits for investigations and reports: Part 4

(1) The [F723CMA] shall, within the period of [F72418 months] beginning with [F725the relevant date], prepare its report under section 142 and [F726publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3). ]

[F727(1A) For the purposes of subsection (1), the “relevant date” is— (a) in the case of a report in relation to a restricted PI reference or to a full

PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference;

(b) in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following—

(i) the date of the appointment of the expert; (ii) the date on which the Secretary of State gives notice to the CMA that

the Secretary of State no longer intends to appoint such an expert; (iii) the end of the period of 2 months beginning with the date of the

reference.]

[F728(1B) The CMA may extend, by no more than 6 months, the period within which its report under section 142 is to be prepared and action is to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if it considers that there are special reasons for doing so.

(1C) An extension under subsection (1B) shall come into force when published under section 172.

(1D) No more than one extension is possible under subsection (1B).]

(2) The Secretary of State may by order amend [F729—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

219

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a)] subsection (1) so as to alter the period of [F73018 months] mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period[F731;

(b) subsection (1B) so as to alter the period of 6 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period.]

(3) No alteration shall be made by virtue of subsection (2) which results in [F732— (a)] the period for the time being mentioned in subsection (1) exceeding [F73318

months][F734; or (b) the period for the time being mentioned in subsection (1B) exceeding 6

months.]

(4) An order under subsection (2) shall not affect any period of time within which, in relation to a market investigation reference, the [F735CMA] is under a duty to prepare its report under section 142 and take action in relation to it under section 143(1) or (3) [F736or (as the case may be) 143A(2) or (3)] if the [F735CMA] is already under that duty in relation to that reference when the order is made.

(5) Before making an order under subsection (2) the Secretary of State shall consult the [F737CMA] and such other persons as he considers appropriate.

Textual Amendments F723 Word in s. 144(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 177 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F724 Words in s. 144(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 6(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F725 Words in s. 144(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 11(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F726 Words in s. 144(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 11(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F727 S. 144(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 11(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F728 S. 144(1B)-(1D) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 6(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F729 Word in s. 144(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 6(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F730 Words in s. 144(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 6(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F731 S. 144(2)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

12 para. 6(4)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F732 Word in s. 144(3) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 6(5)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F733 Words in s. 144(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 6(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F734 S. 144(3)(b) and word inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 6(5)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F735 Word in s. 144(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 177 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F736 Words in s. 144(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 11(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

220 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F737 Word in s. 144(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 177 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

145 Restrictions where public interest considerations not finalised: Part 4

(1) The [F738CMA] shall terminate its investigation under section 142 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;

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 the intervention notice concerned mentions a public interest consideration which is not finalised on the giving of the notice, the [F738CMA] shall not give its report under section 142 to the Secretary of State in accordance with section 143(3) [F739or (as the case may be) 143A(3)] unless the period of 24 weeks beginning with the giving of the intervention notice concerned has expired or the public interest consideration concerned has been finalised.

(3) The [F738CMA] shall, in reporting on any of the questions mentioned in section 141(3) [F740or (as the case may be) 141A(4) and (5)], disregard any public interest consideration which has not been finalised before the giving of the report.

(4) The [F738CMA] shall, in reporting on any of the questions mentioned in section 141(3) [F741or (as the case may be) 141A(4) and (5)], 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 [F738CMA] to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.

Textual Amendments F738 Word in s. 145(1)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 178 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F739 Words in s. 145(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 12(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F740 Words in s. 145(3) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 12(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F741 Words in s. 145(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 12(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

146 [F742Restricted PI references:] decision of Secretary of State

(1) Subsection (2) applies where the Secretary of State has received a [F743report of the CMA in relation to a restricted PI reference] which—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

221

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) has been prepared under section 142; (b) contains the decisions that there is one or more than one adverse effect

on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it; and

(2) The Secretary of State shall decide whether— (a) any eligible public interest consideration is relevant; or (b) any eligible public interest considerations are relevant;

to any action which is mentioned in the report by virtue of section 141(4)(a) and (c) and which the [F744CMA] should take for the purpose of remedying, mitigating or preventing any adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted or may be expected to result from any adverse effect on competition.

(3) The Secretary of State shall make and publish his decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the [F744CMA] under section 142.

(4) In this section “eligible public interest consideration” means a public interest consideration which—

(a) was mentioned in the intervention notice concerned; and (b) was not disregarded by the [F744CMA] for the purposes of its report under

section 142.

Textual Amendments F742 Words in s. 146 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 13(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F743 Words in s. 146(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 13(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F744 Word in s. 146(2)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 179 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F745146AFull PI references: decision of Secretary of State

(1) Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a full PI reference which—

(a) has been prepared under section 142; (b) contains the decisions of the CMA that there is one or more than one adverse

effect on competition and that one or more than one of the features or combinations of features that gave rise to an adverse effect on competition operates or may be expected to operate against the public interest and that, in relation to at least one effect adverse to the public interest concerned, action should be taken by the Secretary of State; and

(2) The Secretary of State shall decide whether to make an adverse public interest finding in relation to the matter and whether to make no finding at all in the matter.

222 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) For the purposes of this Part, the Secretary of State makes an adverse public interest finding in relation to a matter if, in relation to that matter, the Secretary of State decides—

(a) that there is an adverse effect on competition; (b) that there is one or more than one admissible public interest consideration

which is relevant to the matter; and (c) taking account only of any adverse effect on competition and any relevant

admissible public interest consideration or considerations, that any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.

(4) The Secretary of State may make no finding at all in a matter only if the Secretary of State decides that there is no admissible public interest consideration which is relevant to a consideration of the matter concerned.

(5) In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept the decision of the CMA as to whether there is an adverse effect on competition in relation to the matter.

(6) The Secretary of State shall make and publish the decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.

(7) In this section “admissible public interest consideration” means a public interest consideration which—

(a) was mentioned in the intervention notice concerned; and (b) was not disregarded by the CMA for the purposes of its report under

section 142.]

Textual Amendments F745 S. 146A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10

para. 14; S.I. 2014/416, art. 2(1)(d) (with Sch.)

147 [F746Restricted PI references:] remedial action by Secretary of State

(1) Subsection (2) applies where the Secretary of State— (a) has decided under subsection (2) of section 146 within the period required

by subsection (3) of that section that an eligible public interest consideration is relevant as mentioned in subsection (2) of that section or eligible public interest considerations are so relevant; and

(b) has published his decision within the period required by subsection (3) of that section.

(2) The Secretary of State may, in relation to any adverse effect on competition identified in the report concerned, take such action under section 159 or 161 as he considers to be—

(a) reasonable and practicable— (i) to remedy, mitigate or prevent the adverse effect on competition

concerned; or

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

223

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(ii) to remedy, mitigate or prevent any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and

(b) appropriate in the light of the eligible public interest consideration concerned or (as the case may be) the eligible public interest considerations concerned.

(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to—

(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition; and

(b) the report of the [F747CMA ] under section 142.

(4) In having regard by virtue of subsection (3) to the report of the [F747CMA] under section 142, the Secretary of State shall not challenge the decision of the [F747CMA] contained in the report that there is one or more than one adverse effect on competition.

(5) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market [F748or markets] concerned.

(6) The Secretary of State shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—

(a) no detrimental effect on customers has resulted from the adverse effect on competition; and

(b) the adverse effect on competition is not being remedied, mitigated or prevented.

(7) In this section “eligible public interest consideration” has the same meaning as in section 146.

Textual Amendments F746 Words in s. 147 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 15; S.I. 2014/416, art. 2(1)(d) (with Sch.) F747 Word in s. 147(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 180 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F748 Words in s. 147(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 6; S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F749147AFull PI references: remedial action by Secretary of State

(1) Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 146A within the period required by subsection (6) of that section to make an adverse public interest finding in relation to a matter and has published the decision within the period so required.

(2) The Secretary of State may take such action under section 159 or 161 as the Secretary of State 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 features or combinations of features in question.

224 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to the report of the CMA under section 142.

(4) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to—

(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and

(b) any detrimental effects on customers so far as resulting from those effects.]

Textual Amendments F749 S. 147A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10

para. 16; S.I. 2014/416, art. 2(1)(d) (with Sch.)

148 [F750Restricted PI references: reversion of the matter to CMA]

(1) If— (a) the Secretary of State fails to make and publish his decision under

subsection (2) of section 146 within the period required by subsection (3) of that section; or

(b) the Secretary of State decides that no eligible public interest consideration is relevant as mentioned in subsection (2) of that section;

the [F751CMA] shall proceed under section 138 as if the report had been prepared and published under section 136 within the period permitted by section 137.

(2) The [F751CMA] shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (1).

F752(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F752(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F752(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In relation to proceedings by virtue of subsection (1), the reference in section 138(3) to decisions of the [F753CMA] included in its report by virtue of section 134(4) shall be construed as a reference to decisions which were included in the report of the [F753CMA] by virtue of section 141(4).

(7) Where the [F753CMA], in proceeding by virtue of subsection (1), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141(4), it shall not so proceed without the consent of the Secretary of State.

(8) The Secretary of State shall not withhold his consent under subsection (7) unless he believes that the proposed alternative way of proceeding will operate against the public interest.

(9) For the purposes of subsection (8) a proposed alternative way of proceeding will operate against the public interest only if any eligible public interest consideration or considerations outweigh the considerations which have led the [F754CMA] to propose proceeding in that way.

(10) In deciding whether to withhold his consent under subsection (7), the Secretary of State shall accept the [F755CMA's] view of what, if the only relevant consideration

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

225

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.

(11) In this section “eligible public interest consideration” has the same meaning as in section 146.

Textual Amendments F750 S. 148 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 17(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F751 Word in s. 148(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 181(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F752 S. 148(3)-(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 17(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F753 Word in s. 148(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 181(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F754 Word in s. 148(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 181(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F755 Word in s. 148(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 181(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F756148AFull PI references: reversion of the matter to CMA

(1) This section applies if— (a) the Secretary of State decides under section 146A(2) to make no finding at

all in the matter; or (b) the Secretary of State fails to make and publish the decision under

subsection (2) of section 146A within the period required by subsection (6) of that section.

(2) The CMA shall proceed under section 138 as if— (a) a reference under section 131 had been made (in accordance with the

requirements imposed by this Part) instead of a full PI reference; and (b) its report had been prepared and published under section 136 within the period

permitted by section 137.

(3) The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (2).

(4) In relation to proceedings by virtue of subsection (2), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) is to be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141A(6).

(5) Where the CMA becomes under a duty to proceed as mentioned in subsection (2), references in this Part to a reference under section 131, so far as necessary, are to be construed accordingly.

(6) Where the CMA, in proceeding by virtue of subsection (2), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141A(6), it shall not so proceed without the consent of the Secretary of State.

226 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(7) The Secretary of State shall not withhold consent under subsection (6) unless the Secretary of State believes that the proposed alternative way of proceeding will operate against the public interest.

(8) For the purposes of subsection (7) a proposed alternative way of proceeding will operate against the public interest only if any admissible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.

(9) In deciding whether to withhold consent under subsection (6), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.

(10) In this section “admissible public interest consideration” has the same meaning as in section 146A.]

Textual Amendments F756 S. 148A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10

para. 18; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Intervention notices under section 139(2)

149 Intervention notices under section 139(2)

(1) An intervention notice under section 139(2) shall state— (a) the proposed undertaking which may be accepted by the [F757CMA]; (b) the notice under section 155(1) or (4); (c) the public interest consideration or considerations which are, or may be,

relevant to the [F758proposal to accept the undertaking]; and (d) 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 the [F759proposal to accept the undertaking], he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(2) and which is in force.

(4) An intervention notice under section 139(2) shall come into force when it is given and shall cease to be in force on the occurrence of any of the events mentioned in subsection (5).

(5) The events are— (a) the acceptance by the [F760CMA] with the consent of the Secretary of State of

an undertaking which is the same as the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) or which does not differ from it in any material respect;

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

227

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(b) the decision of the [F760CMA] to proceed neither with the proposed undertaking mentioned in the intervention notice by virtue of subsection (1) (a) nor a proposed undertaking which does not differ from it in any material respect; or

Textual Amendments F757 Word in s. 149(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 182 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F758 Words in s. 149(1)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 19(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F759 Words in s. 149(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 19(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F760 Word in s. 149(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 182 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

150 Power of veto of Secretary of State

[F761(A1) Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking under section 154 in relation to the matter concerned.]

(1) Where an intervention notice under section 139(2) is in force, the [F762CMA] shall not, without the consent of the Secretary of State, accept the proposed undertaking concerned or a proposed undertaking which does not differ from it in any material respect.

(2) The Secretary of State shall withhold his consent if he believes that it is or may be the case that the proposed undertaking will, if accepted, operate against the public interest.

(3) For the purposes of subsection (2) a proposed undertaking will, if accepted, operate against the public interest only if any public interest consideration which is mentioned in the intervention notice concerned and has been finalised, or any public interest considerations which are so mentioned and have been finalised, outweigh the considerations which have led the [F763CMA] to propose accepting the undertaking.

(4) In making his decision under subsection (2) the Secretary of State shall accept the [F764CMA's] view of what undertakings, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be most appropriate.

(5) Where a public interest consideration which is mentioned in the intervention notice concerned is not finalised on the giving of the notice, the Secretary of State shall not make his decision as to whether to give his consent under this section before—

(a) the end of the period of 24 weeks beginning with the giving of the intervention notice; or

(b) if earlier, the date on which the public interest consideration concerned has been finalised.

228 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 2 – Public interest cases Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(6) Subject to subsections (2) to (5), the Secretary of State shall not withhold his consent under this section.

Textual Amendments F761 S. 150(A1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 20; S.I. 2014/416, art. 2(1)(d) (with Sch.) F762 Word in s. 150(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 183(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F763 Word in s. 150(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 183(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F764 Word in s. 150(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 183(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Other

151 [F765Public interest intervention cases: interaction with general procedure]

[F766(1) Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.]

(2) Where the Secretary of State revokes an intervention notice which has been given under section 139(1), [F767at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part).]

(3) Where the [F768CMA] is proceeding by virtue of subsection (2), the period within which the [F768CMA] shall prepare and publish its report under section 136 shall be extended by an additional period of 20 days.

(4) Where the [F769CMA] terminates its investigation under section 145(1)[F770, the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part).]

(5) Where the [F771CMA] is proceeding by virtue of subsection (4), the period within which the [F771CMA] shall prepare and publish its report under section 136 shall be extended by an additional period of 20 days.

(6) In determining the period of 20 days mentioned in subsection (3) or (5) 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.

Textual Amendments F765 S. 151 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 21(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F766 S. 151(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

10 para. 21(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 2 – Public interest cases Document Generated: 2021-02-16

229

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F767 Words in s. 151(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 21(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F768 Word in s. 151(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 184(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F769 Word in s. 151(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 184(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F770 Words in s. 151(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 21(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F771 Word in s. 151(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 184(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

152 Certain duties of [F772CMA]

(1) The [F773CMA] shall, in considering whether to make a reference under section 131, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.

F774(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The [F775CMA] shall bring to the attention of the Secretary of State any representations about exercising his power under section 153(3) which have been made to the [F776CMA].

Textual Amendments F772 Word in s. 152 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 185(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F773 Word in s. 152(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 185(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F774 S. 152(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 22; S.I. 2014/416, art. 2(1)(d) (with Sch.) F775 Word in s. 152(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 185(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F776 Word in s. 152(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 185(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

153 Specified considerations: Part 4

(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 [F77721(4) of Council Regulation (EC) No 139/2004 of 20th January 2004 on the control of concentrations between undertakings.].

(4) An order under this section may apply in relation to cases under consideration by the [F778CMA], [F779by the Secretary of State or] by the appropriate Minister (other than

230 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

the Secretary of State acting alone) F780... before the making of the order as well as cases under consideration on or after the making of the order.

Textual Amendments F777 Words in s. 153(2) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments)

Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(27) F778 Word in s. 153(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 186(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F779 Words in s. 153(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 186(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F780 Words in s. 153(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 186(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

CHAPTER 3

ENFORCEMENT

Undertakings and orders

154 Undertakings in lieu of market investigation references

(1) Subsection (2) applies if the [F781CMA] considers that it has the power to make a reference under section 131 and otherwise intends to make such a reference.

(2) The [F781CMA] may, instead of making such a reference and for the purpose of remedying, mitigating or preventing—

(a) any adverse effect on competition concerned; or (b) any detrimental effect on customers so far as it has resulted from, or may be

expected to result from, the adverse effect on competition; accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate.

(3) In proceeding under subsection (2), the [F781CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(4) In proceeding under subsection (2), the [F781CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market [F782or markets] concerned.

(5) The [F781CMA] shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—

(a) no detrimental effect on customers has resulted from the adverse effect on competition; and

(b) the adverse effect on competition is not being remedied, mitigated or prevented.

(6) An undertaking under this section—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

231

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) shall come into force when accepted; (b) may be varied or superseded by another undertaking; and (c) may be released by the [F781CMA].

(7) The [F781CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

(8) This section is subject to sections 150 and 155.

Textual Amendments F781 Word in s. 154(1)-(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 187 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F782 Words in s. 154(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 7; S.I. 2014/416, art. 2(1)(d) (with Sch.)

155 Undertakings in lieu: procedural requirements

(1) Before accepting an undertaking under section 154 (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the [F783CMA] shall—

(a) publish notice of the proposed undertaking; and (b) consider any representations made in accordance with the notice and not

withdrawn.

(2) A notice under subsection (1) shall state— (a) that the [F783CMA] proposes to accept the undertaking; (b) the purpose and effect of the undertaking; (c) the situation that the undertaking is seeking to deal with; (d) any other facts which the [F783CMA] considers justify the acceptance of the

undertaking; (e) a means of gaining access to an accurate version of the proposed undertaking

at all reasonable times; and (f) the period (not less than 15 days starting with the date of publication of the

notice) within which representations may be made in relation to the proposed undertaking.

(3) The matters to be included in a notice under subsection (1) by virtue of subsection (2) shall, in particular, include—

(a) the terms of the reference under section 131 which the [F783CMA] considers that it has power to make and which it otherwise intends to make [F784or (but for the effect of section 140A(3)) it would have had power to make and which it would otherwise have intended to make]; and

(b) the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the [F783CMA] has identified.

(4) The [F783CMA] shall not accept the undertaking with modifications unless it— (a) publishes notice of the proposed modifications; and (b) considers any representations made in accordance with the notice and not

withdrawn.

232 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(5) A notice under subsection (4) shall state— (a) the proposed modifications; (b) the reasons for them; and (c) the period (not less than 7 days starting with the date of the publication of

the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.

(6) If, after publishing notice under subsection (1) or (4), the [F785CMA] decides— (a) not to accept the undertaking concerned; and (b) not to proceed by virtue of subsection (8) or (9);

it shall publish notice of that decision.

(7) As soon as practicable after accepting an undertaking to which this section applies, the [F785CMA] shall—

(a) serve a copy of the undertaking on any person by whom it is given; and (b) publish the undertaking.

(8) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the [F785CMA]—

(a) has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and

(b) considers that the modifications which are now being proposed are not material in any respect.

(9) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the [F785CMA]—

(a) has already published notice under subsections (1) and (4) in relation to the matter concerned; and

(b) considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).

(10) Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section 154 (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.

Textual Amendments F783 Word in s. 155(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 188 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F784 Words in s. 155(3)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 23; S.I. 2014/416, art. 2(1)(d) (with Sch.) F785 Word in s. 155(6)-(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 188 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

233

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

156 Effect of undertakings under section 154

[F786(A1) No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the CMA has accepted an undertaking or group of undertakings under section 154 within the previous 12 months;

(b) the feature or combination of features to which the undertaking or group of undertakings relates is the same as the feature or combination of features to which the reference would relate; and

(c) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.]

(1) No [F787ordinary] reference shall be made by the [F788CMA] or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the [F788CMA] has[F789, instead of making an ordinary reference,] accepted an undertaking or group of undertakings under section 154 within the previous 12 months; and

(b) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which [F790the reference would relate].

(2) [F791Subsections (A1) and (1) do] not prevent the making of a market investigation reference if—

(a) the [F788CMA] considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the [F788CMA] which was false or misleading in a material respect.

[F792(3) The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section 154 and—

(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.]

Textual Amendments F786 S. 156(A1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

9 para. 8(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F787 Word in s. 156(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 9 para. 8(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F788 Word in s. 156(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 189 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

234 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F789 Words in s. 156(1)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F790 Words in s. 156(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(3)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F791 Words in s. 156(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F792 S. 156(3) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 12; S.I. 2014/416, art. 2(1)(d) (with Sch.)

157 Interim undertakings: Part 4

(1) Subsection (2) applies where— (a) a market investigation reference has been made; (b) a report has been published under section 136 within the period permitted by

section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) [F793or (as the case may be) 143A(3)] within the period permitted by section 144 has been published; and

(2) The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.

[F794(2A) Subsection (2B) applies where— (a) subsection (1)(a) to (c) applies; and (b) the relevant authority has reasonable grounds for suspecting that pre-emptive

action has or may have been taken.

(2B) The relevant authority may, 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, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.]

[F795(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.]

(3) 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 relevant authority.

(4) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.

(6) In this section and section 158—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

235

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

“pre-emptive action” means action which might impede the taking of any action under section 138(2)[F796 , 147(2) or (as the case may be) 147A(2)] in relation to the market investigation reference concerned; and

[F797“the relevant authority” means— (a) in the case of a restricted PI reference or a full PI reference, the Secretary

of State; (b) in any other case, the CMA.]

Textual Amendments F793 Words in s. 157(1)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 24(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F794 S. 157(2A)(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(2),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F795 S. 157(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(3),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F796 Words in s. 157(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 24(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F797 Words in s. 157(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 24(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

158 Interim orders: Part 4

(1) Subsection (2) applies where— (a) a market investigation reference has been made; (b) a report has been published under section 136 within the period permitted by

section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) [F798or (as the case may be) 143A(3)] within the period permitted by section 144 has been published; and

(2) The relevant authority may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the relevant authority 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.

[F799(2A) Subsection (2B) applies where— (a) subsection (1)(a) to (c) applies; and (b) the relevant authority has reasonable grounds for suspecting that pre-emptive

action has or may have been taken.

236 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

appropriate, undertakings to take such action as the relevant authority considers appropriate.]

[F800(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.]

(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.

(4) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.

Textual Amendments F798 Words in s. 158(1)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 25; S.I. 2014/416, art. 2(1)(d) (with Sch.) F799 S. 158(2A)(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(4),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F800 S. 158(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(5),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

159 Final undertakings: Part 4

(1) The [F801CMA] may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.

(2) The Secretary of State may, in accordance with section 147 [F802or (as the case may be) 147A], accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.

(3) An undertaking under this section shall come into force when accepted.

(4) An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.

(5) An undertaking under subsection (1) may be released by the [F803CMA] and an undertaking under subsection (2) may be released by the Secretary of State.

(6) The [F804CMA] or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.

Textual Amendments F801 Word in s. 159(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

237

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F802 Words in s. 159(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 26; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F803 Word in s. 159(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F804 Word in s. 159(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

160 Order-making power where final undertakings not fulfilled: Part 4

(1) Subsection (2) applies where the relevant authority considers that— (a) an undertaking accepted by the relevant authority under section 159 has not

been, is not being or will not be fulfilled; or (b) in relation to an undertaking accepted by the relevant authority under that

section, information which was false or misleading in a material respect was given to [F805a relevant person] by the person giving the undertaking before the relevant authority decided to accept the undertaking.

[F806(1A) In subsection (1), a “relevant person” means— (a) in a case where the relevant authority is the CMA, the CMA; (b) in a case where the relevant authority is the Secretary of State, the Secretary

of State or the CMA.]

(2) The relevant authority may, for any of the purposes mentioned in section 138(2)[F807, 147(2) or (as the case may be) 147A(2)], make an order under this section.

(3) Subsections (3) to (6) of section 138 [F808or 147 or (as the case may be) subsections (3) and (4) of section 147A] shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.

(4) An order under this section may contain— (a) anything permitted by Schedule 8; and (b) such supplementary, consequential or incidental provision as the relevant

authority 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) [F809The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA] advises that such a variation or revocation is appropriate by reason of a change of circumstances.

(7) In this section “the relevant authority” means— (a) in the case of an undertaking accepted under section 159 by the [F810CMA],

the [F810CMA]; and (b) in the case of an undertaking accepted under that section by the Secretary of

State, the Secretary of State.

238 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F805 Words in s. 160(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 191(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F806 S. 160(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

5 para. 191(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F807 Words in s. 160(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 27(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F808 Words in s. 160(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 27(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F809 Words in s. 160(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 191(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F810 Word in s. 160(7)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 191(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C414 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified

(20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C415 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C416 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C417 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C418 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

161 Final orders: Part 4

(1) The [F811CMA] may, in accordance with section 138, make an order under this section.

(2) The Secretary of State may, in accordance with section 147 [F812or (as the case may be) 147A], make an order under this section.

(3) An order under this section may contain— (a) anything permitted by Schedule 8; and (b) such supplementary, consequential or incidental provision as the person

making it considers appropriate.

(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.

(5) [F813The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA] advises that such a variation or revocation is appropriate by reason of a change of circumstances.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

239

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F811 Word in s. 161(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 192(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F812 Words in s. 161(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 28; S.I. 2014/416, art. 2(1)(d) (with Sch.) F813 Words in s. 161(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 192(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C419 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified

(20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C420 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C421 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C422 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C423 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C424 S. 161(5) excluded (25.6.2013) by Groceries Code Adjudicator Act 2013 (c. 19), ss. 21(5), 25; S.I. 2013/1236, art. 2

[F814Undertakings and orders: monitoring, consultation and advice]

Textual Amendments F814 S. 162 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 193 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

162 Duty of [F815CMA] to monitor undertakings and orders: Part 4

(1) The [F816CMA] shall keep under review the carrying out of any enforcement undertaking or any enforcement order.

(2) The [F816CMA] 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.

240 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) The [F817CMA] shall give F818... the Secretary of State such advice as it considers appropriate in relation to—

(a) any possible variation or release by F819...the Secretary of State of an enforcement undertaking accepted by F820... him;

(b) any possible new enforcement undertaking to be accepted by F821... the Secretary of State so as to supersede another enforcement undertaking given to F821... the Secretary of State;

(c) any possible variation or revocation by F821... the Secretary of State of an enforcement order made by F821... the Secretary of State;

(d) any possible enforcement undertaking to be accepted by F821... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by F821... the Secretary of State instead of an enforcement undertaking; or

(e) the enforcement by virtue of section [F822167(6) and (7)] of any enforcement undertaking or enforcement order.

(4) The [F823CMA ] shall take such action as it considers appropriate in relation to— (a) any possible variation or release by it of an undertaking accepted by it under

section 154; (b) any possible new undertaking to be accepted by it under section 154 so as to

supersede another undertaking given to it under that section; [F824(ba) any possible variation or release by it of an enforcement undertaking accepted

by it; (bb) any possible new enforcement undertaking to be accepted by it so as to

supersede another enforcement undertaking given to it; (bc) any possible variation or revocation by it of an enforcement order made by it; (bd) 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;] or

(5) The [F825CMA] shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

(6) The [F825CMA] 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 [F826CMA] shall— F827(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) give a copy of the report to the Secretary of State; and (c) publish [F828any report prepared by it under subsection (6)].

(8) In this Part— “enforcement order” means an order made under section 158, 160 or 161;

and “enforcement undertaking” means an undertaking accepted under

section 154, 157 or 159.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

241

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F815 Word in s. 162 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 194(7) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F816 Word in s. 162(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F817 Word in s. 162(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(3)(a)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F818 Words in s. 162(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 194(3)(a)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F819 Words in s. 162(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 194(3)(b)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F820 Words in s. 162(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 194(3)(b)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F821 Words in s. 162(3)(b)-(d) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 194(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F822 Words in s. 162(3)(e) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(3)(d) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F823 Word in s. 162(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F824 S. 162(4)(ba)-(bd) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F825 Word in s. 162(5)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F826 Word in s. 162(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F827 S. 162(7)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F828 Words in s. 162(7)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 194(6)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C425 Ss. 91(3), 92(1)(a), 162(1), 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C426 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 23(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 12(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C427 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 42(5A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para 12(3)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

163 [F829Role of CMA in relation to undertakings and orders in public interest cases: Part 4]

(1) Subsections (2) and (3) apply where F830... the Secretary of State F831... is considering whether to accept undertakings under section 157 or 159.

(2) The [F832Secretary of State] may require the [F833CMA] to consult with such persons as the [F832Secretary of State] considers appropriate with a view to discovering whether they will offer undertakings which the [F832Secretary of State] would be prepared to accept under section 157 or (as the case may be) 159.

242 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) The [F834Secretary of State] may require the [F835CMA] to report to the [F834Secretary of State] on the outcome of the [F836CMA's] consultations within such period as the [F834Secretary of State] may require.

(4) A report under subsection (3) shall, in particular, contain advice from the [F837CMA] as to whether any undertakings offered should be accepted by the [F838Secretary of State ] under section 157 or (as the case may be) 159.

(5) The powers conferred on the [F839Secretary of State] by subsections (1) to (4) are without prejudice to the power of the [F839Secretary of State] to consult the persons concerned F840....

(6) If asked by the [F841Secretary of State] for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the [F842CMA] shall give such advice as it considers appropriate.

Textual Amendments F829 S. 163 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(8) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F830 Words in s. 163(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 195(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F831 Words in s. 163(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 195(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F832 Words in s. 163(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F833 Word in s. 163(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F834 Words in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F835 Word in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F836 Word in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(4)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F837 Word in s. 163(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F838 Words in s. 163(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F839 Words in s. 163(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F840 Word in s. 163(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 195(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F841 Words in s. 163(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F842 Word in s. 163(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 195(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

243

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Supplementary

164 Enforcement undertakings and orders under this Part: general provisions

(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

(2) The following enactments in Part 3 shall apply in relation to enforcement orders under this Part as they apply in relation to enforcement orders under that Part—

(a) section 86(1) to (5) (enforcement orders: general provisions); and (b) section 87 (power of directions conferred by enforcement order).

(3) An enforcement order under section 160 or 161 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.

Modifications etc. (not altering text) C428 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified

(20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C429 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C430 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C431 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C432 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

165 Procedural requirements for certain undertakings and orders: Part 4

Schedule 10 (procedural requirements for certain undertakings and orders), other than paragraph 9 of that Schedule, shall apply in relation to undertakings under section 159 and orders under section 160 or 161 as it applies in relation to undertakings under section 82 and orders under section 83 or 84.

166 Register of undertakings and orders: Part 4

(1) The [F843CMA] shall compile and maintain a register for the purposes of this Part.

(2) The register shall be kept in such form as the [F843CMA] considers appropriate.

244 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 3 – Enforcement Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(3) The [F844CMA] shall ensure that the following matters are entered in the register— (a) the provisions of any enforcement undertaking accepted by virtue of this Part

F845...; (b) the provisions of any enforcement order made by virtue of this Part F846...; and (c) the details of any variation, release or revocation of such an undertaking or

order.

(4) The duty in subsection (3) does not extend to anything of which the [F847CMA] is unaware.

(5) The F848... Secretary of State and any relevant sectoral regulator shall inform the [F849CMA] of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by them or enforcement orders made by them.

(6) The [F850CMA] 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 [F850CMA] may determine.

(7) If requested by any person to do so and subject to such reasonable fees (if any) as the [F850CMA] may determine, the [F850CMA] shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.

Textual Amendments F843 Word in s. 166(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 196(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F844 Word in s. 166(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 196(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F845 Words in s. 166(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 196(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F846 Words in s. 166(3)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 196(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F847 Word in s. 166(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 196(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F848 Words in s. 166(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 196(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F849 Word in s. 166(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 196(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F850 Word in s. 166(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 196(6) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C433 Ss. 91(3), 92(1)(a), 162(1), 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by

Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C434 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 23(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 12(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 3 – Enforcement Document Generated: 2021-02-16

245

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

C435 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 42(5A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para 12(3)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

167 Rights to enforce undertakings and orders under this Part

(1) This section applies to any enforcement undertaking or enforcement order.

(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) 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.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or 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 [F851CMA] for an injunction or for interdict or for any other appropriate relief or remedy.

(7) Compliance with an undertaking accepted [F852by the Secretary of State] under section 157 or 159, or an order [F853made by the Secretary of State] under section 158, 160 or 161, shall also be enforceable by civil proceedings brought by the [F854Secretary of State] for an injunction or for interdict or for any other appropriate relief or remedy.

F855(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Subsections [F856(6) and (7)] 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.

Textual Amendments F851 Word in s. 167(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F852 Words in s. 167(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F853 Words in s. 167(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F854 Words in s. 167(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F855 S. 167(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F856 Words in s. 167(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 197(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

246 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

CHAPTER 4

SUPPLEMENTARY

Regulated markets

168 Regulated markets

(1) Subsection (2) applies where the [F857CMA] or the Secretary of State is considering for the purposes of this Part whether relevant action would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(2) The [F857CMA] or (as the case may be) the Secretary of State shall, in deciding whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned.

(3) In this section “relevant action” means— (a) [F858modifying the conditions of a licence granted under section 7 of the

Telecommunications Act 1984 (c. 12);] F859(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);

(e) modifying networking arrangements (within the meaning given by [F861section 290 of the Communications Act 2003]);

(f) modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);

[F862(ff) modifying the conditions of a licence granted under Chapter 1A of Part 2 of the Act of 1991 or modifying the terms and conditions of an agreement under section 66D [F863or 117E] of that Act;]

(g) modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));

(h) modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);

[F864(hh) modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;]

(i) modifying an access agreement (within the meaning given by section 83(1) of the Act of 1993) or a franchise agreement (within the meaning given by section 23(3) of that Act);

(j) modifying conditions in force under Part 4 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)) other than any conditions imposed or modified in pursuance of article 40(3) or (4) of that Order;

(k) modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

F865(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

247

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(m) modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38).

[F866(n) modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006.]

[F867(o) modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;]

[F868(p) modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012.]

[F869(q) modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012]

(4) In this section “relevant statutory functions” means— (a) [F870in relation to any licence granted under section 7 of the

Telecommunications Act 1984, the duties and obligations of the Director General of Telecommunications imposed on him by or in pursuance of any enactment or other provision mentioned in section 7(5)(a) of that Act;]

F871(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) in relation to any licence granted under section 7 [F872, 7A or 7AB] of the Gas

Act 1986 (c. 44), the objectives and duties of the Gas and Electricity Markets Authority under section 4AA and 4AB(2) of that Act;

(d) in relation to any licence granted under section 6 of the Electricity Act 1989 (c. 29), the objectives and duties of the Gas and Electricity Markets Authority under section 3A and 3B(2) of that Act;

[F873(e) in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;]

(f) in relation to a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56), the duties of [F874the Water Services Regulation Authority] under section 2 of that Act;

[F875(ff) in relation to a licence granted under Chapter 1A of Part 2 of the Act of 1991 or an agreement under section 66D [F876or 117E] of that Act, the duties of the Authority under section 2 of that Act or under that section and section 66D [F876or 117E] of that Act (as the case may be);]

(g) in relation to any licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)), the duty of the Director General of Electricity Supply for Northern Ireland under article 6 of that Order;

(h) in relation to any licence granted under section 8 of the Railways Act 1993 (c. 43) [F877where none of the conditions of the licence relate to consumer protection], the duties of the [F878Office of Rail and Road] under section 4 of that Act;

[F879(hh) in relation to a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 where none of the conditions of the SNRP relate to consumer protection, the duties of the Department for Regional Development under regulation 36 of those Regulations;]

(i) [F880in relation to any licence granted under section 8 of the Act of 1993 where one or more than one condition of the licence relates to consumer protection, the duties of the [F881Office of Rail Regulation] under section 4 of that Act and

248 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

the duties of the Strategic Rail Authority under section 207 of the Transport Act 2000 (c. 38);]

(j) in relation to any access agreement (within the meaning given by section 83(1) of the Act of 1993), the duties of the [F878Office of Rail and Road] under section 4 of the Act of 1993;

(k) in relation to any franchise agreement (within the meaning given by section 23(3) of the Act of 1993), the duties of the [F882Secretary of State, the Scottish Ministers and the National Assembly for Wales under section 4 of the Act of 1993];

(l) in relation to conditions in force under Part 4 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)) other than any conditions imposed or modified in pursuance of article 40(3) or (4) of that Order, the duties of the Civil Aviation Authority under article 30(2) and (3) of that Order;

(m) in relation to any licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), the duties of the Director General of Gas for Northern Ireland under article 5 of that Order;

F883(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (o) in relation to any licence granted under section 5 of the Transport Act 2000,

the duties of the Civil Aviation Authority under section 87 of that Act. [F884(p) in relation to a company's appointment under Chapter I of Part III of the

Water and Sewerage Services (Northern Ireland) Order 2006, the duties of the Northern Ireland Authority for Utility Regulation under Article 6 of that Order]

[F885(q) in relation to regulatory conditions imposed under Part 3 of the Postal Services Act 2011, the duty of the Office of Communications under section 29 of that Act;]

[F886(r) in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of Monitor under sections 62 and 66 of that Act.]

[F887(s) in relation to a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012, the duties of the Civil Aviation Authority under section 1 of that Act]

(5) In this section “sectoral regulator” means— (a) the Civil Aviation Authority;

[F888(b) the Northern Ireland Authority for Utility Regulation.] (d) [F889the Director General of Telecommunications;] (e) the Water Services Regulation Authority; (f) paragraph 29 of Schedule 2 to the Telecommunications Act 1984

[F890(g) the Office of Communications;] F891(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) the [F878Office of Rail and Road]; F892. . . [F893(ia) Monitor;] [F894(j) the Secretary of State;

(k) the Scottish Ministers; or (l) the National Assembly for Wales][F895 or (k) the Department for Regional Development.]

(6) Subsection (7) applies where the [F896CMA] or the Secretary of State is considering for the purposes of this Part whether modifying the conditions of a licence granted under section 7 [F897, 7A or 7AB] of the Gas Act 1986 (c. 44) or section 6 of the Electricity

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

249

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Act 1989 (c. 29) would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(7) The [F896CMA] or (as the case may be) the Secretary of State may, in deciding whether modifying the conditions of such a licence would be reasonable and practicable, have regard to those matters to which the Gas and Electricity Markets Authority may have regard by virtue of section 4AA(4) of the Act of 1986 or (as the case may be) section 3A(4) of the Act of 1989.

(8) The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).

(9) Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.

Textual Amendments F857 Word in s. 168(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 198 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F858 S. 168(3)(a) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by

Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F859 S. 168(3)(b) omitted (1.4.2014) by virtue of Civil Aviation Act 2012 (c. 19), s. 110(1), Sch. 9 para. 14(2)(a) (with Sch. 10 paras. 12, 17); S.I. 2013/589, art. 5(1)(b)

F860 Words in s. 168(3)(c) substituted (E.W.S.) (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 31

F861 Words in s. 168(3)(e) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2) (3), Sch. 17 para. 174(5)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F862 S. 168(3)(ff) inserted (1.12.2005) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 8 para. 55(2)(a); S.I. 2005/2714, art. 3(c)

F863 Words in s. 168(3)(ff) inserted (1.4.2017) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 129(2); S.I. 2017/462, art. 3(k)(xxiv)

F864 S. 168(3)(hh) inserted (N.I.) (3.1.2006) by The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 (S.R. 2005/537), reg. 45, Sch. 5 Pt. 1 para. 4(a)

F865 S. 168(3)(l) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 164(2)(a); S.I. 2011/2329, art. 3

F866 S. 168(3)(n) added (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), 308, Sch. 12 para. 46(3) (with arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F867 S. 168(3)(o) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 164(2) (b); S.I. 2011/2329, art. 3

F868 S. 168(3)(p) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 74(7)(a), 306(4); S.I. 2013/671, art. 2(3)

F869 S. 168(3)(q) inserted (6.4.2013) by Civil Aviation Act 2012 (c. 19), s. 110(1), Sch. 9 para. 14(2)(b) (with Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(3)

F870 S. 168(4)(a) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F871 S. 168(4)(b) omitted (1.4.2014) by virtue of Civil Aviation Act 2012 (c. 19), s. 110(1), Sch. 9 para. 14(3)(a) (with Sch. 10 paras. 12, 17); S.I. 2013/589, art. 5(1)(b)

250 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F872 Words in s. 168(4)(c) substituted (E.W.S.) (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 31

F873 S. 168(4)(e) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(5)(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F874 Words in s. 168(4)(f) substituted (1.4.2006) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 7 para. 36(3)(a); S.I. 2005/2714, art. 4(f)

F875 S. 168(4)(ff) inserted (1.12.2005) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 8 para. 55(2)(b); S.I. 2005/2714, art. 3(c)

F876 Words in s. 168(4)(ff) inserted (1.4.2017) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 129(3); S.I. 2017/462, art. 3(k)(xxiv)

F877 Words in s. 168(4)(h) repealed (E.W.S.) (24.7.2005) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(2)(a), Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.

F878 Words in s. 168(4)(h)(j)(5)(i) substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 4(q)(ii)

F879 S. 168(4)(hh) inserted (N.I.) (3.1.2006) by The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 (S.R. 2005/537), reg. 45, Sch. 5 Pt. 1 para. 4(b)

F880 S. 168(4)(i) repealed (E.W.S.) (24.7.2005) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(2)(b), Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.

F881 Words in s. 168 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16(5), 120(1), Sch. 2 para. 19(u); S.I. 2004/827, art. 4(g)

F882 Words in s. 168(4)(k) substituted (E.W.S.) (24.7.2005 for certain purposes and 16.10.2005 otherwise) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(2)(c); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F883 S. 168(4)(n) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 164(3)(a); S.I. 2011/2329, art. 3

F884 S. 168(4)(p) added (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), 308, Sch. 12 para. 46(4) (with arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F885 S. 168(4)(q) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 164(3) (b); S.I. 2011/2329, art. 3

F886 S. 168(4)(r) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 74(7)(b), 306(4); S.I. 2013/671, art. 2(3)

F887 S. 168(4)(s) inserted (6.4.2013) by Civil Aviation Act 2012 (c. 19), s. 110(1), Sch. 9 para. 14(3)(b) (with Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(3)

F888 S. 168(5)(b) substituted (N.I.) (1.4.2007) for s. 168(5)(b)(c) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 308, Sch. 12 para. 46(5) (with arts. 8(9), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

F889 S. 168(5)(d) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F890 S. 168(5)(g) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(5)(c) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F891 S. 168(5)(h) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 164(4); S.I. 2011/2329, art. 3

F892 Word in s. 168(5)(i) repealed (16.10.2005 for E.W.S) and omitted (3.1.2006 for N.I.) by virtue of Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1; S.I. 2005/2812, art. 2(1), Sch. 1; S.R. 2005/537, reg. 45, Sch. 5 Pt. 1 para. 4(c)

F893 S. 168(5)(ia) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 74(7)(c), 306(4); S.I. 2013/671, art. 2(3)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

251

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F894 S. 168(5)(j)-(l) substituted (E.W.S.) (24.7.2005 for certain purposes and 16.10.2005 otherwise) for s. 168(5)(j) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(3); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F895 S. 168(5)(k) inserted (N.I.) (3.1.2006) by The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 (S.R. 2005/537), reg. 45, Sch. 5 Pt. 1 para. 4(c)(ii)

F896 Word in s. 168(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 198 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F897 Words in s. 168(6) substituted (E.W.S.) (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 31

Modifications etc. (not altering text) C436 S. 168 applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway

Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(f) C437 S. 168(3)(h) modified (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations

2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 8(a) C438 S. 168(4)(h) modified (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations

2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 8(a) S. 168(4)(h) modified (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 8(b)

Consultation, information and publicity

169 Certain duties of relevant authorities to consult: Part 4

(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.

(6) In this section— “the relevant authority” means the [F898CMA, the appropriate

Minister][F899or the Secretary of State]; and “relevant decision” means—

(a) in the case of the [F900CMA], any decision by the [F900CMA]— (i) [F901to 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;

252 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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[F902; or— (iii) on the questions mentioned in section 134, 141 or 141A; and]

(b) in the case of the appropriate Minister [F903(other than the Secretary of State acting alone)], any decision by the appropriate Minister—

(i) F904... to make a reference under section 132; or (ii) to vary under section 135 such a reference; F905...

[F906in 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).]

Textual Amendments F898 Words in s. 169(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 199(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F899 Words in s. 169(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 29(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F900 Words in s. 169(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 199(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F901 Words in s. 169(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 12 para. 13(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F902 Words in s. 169(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 199(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F903 Words in s. 169(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 29(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F904 Words in s. 169(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 12 para. 13(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F905 Words in s. 169(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 199(d) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F906 Words in s. 169(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 29(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

170 General information duties F907(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F907(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The [F908CMA] shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

253

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(a) such information in [F909its 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 [F910CMA] or (as the case may be) the Commission to give.

(4) The [F911CMA] 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 [F911CMA], 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) [F912The 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.

Textual Amendments F907 S. 170(1)(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 200(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F908 Words in s. 170(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 200(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F909 Words in s. 170(3)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 200(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F910 Words in s. 170(3)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 200(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F911 Word in s. 170(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 200(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F912 Words in s. 170(5) substituted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 5 para. 200(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

171 Advice and information: Part 4

(1) F913... [F914The CMA] shall prepare and publish general advice and information about [F915—

(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 [F916CMA] may at any time publish revised, or new, advice or information. F917(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F917(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

254 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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 [F918CMA] expects such provisions to operate.

(6) Advice and information published by virtue of subsection (1) F919... shall include such advice and information about the effect of [F114EU] law, and anything done under or in accordance with it, on the provisions of this Part as the [F920CMA] considers appropriate.

(7) Advice (or information) published by virtue of subsection (1) F921... may include advice (or information) about the factors which the [F922CMA] 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 [F923CMA] under this section shall be published in such manner as the [F924CMA] considers appropriate.

(9) In preparing any advice or information under this section, the [F925 CMA shall consult such persons] and such other persons as it considers appropriate.

F926(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) In this section “[F114EU] 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.

Textual Amendments F114 Word in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F913 Words in s. 171(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 201(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F914 Words in s. 171(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F915 Words in s. 171(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(2)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F916 Word in s. 171(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F917 S. 171(3)(4) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F918 Word in s. 171(5)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F919 Words in s. 171(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 201(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F920 Word in s. 171(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F921 Words in s. 171(7) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 201(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F922 Word in s. 171(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 201(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

255

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F923 Word in s. 171(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 201(8)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F924 Word in s. 171(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 201(8)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F925 Words in s. 171(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 201(9) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F926 S. 171(10) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 201(10) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

172 Further publicity requirements: Part 4

(1) The [F927CMA] shall publish— (a) any reference made by it under section 131[F928, other than a reference treated

as so made by virtue of section 140A(5)(b)]; [F929(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 [F930CMA shall also] publish— [F931(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;

[F932(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; F933(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;

[F934(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);]

256 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(e) any decision made by him under section 147(2) [F935or (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) F936....

[F937(7A) Subsection (6) shall not apply in relation to any case falling within subsection (1) (a)][F938or (3)(da)].

(8) The Secretary of State shall publish his reasons for— (a) any decision made by him under section 146(2) [F939or 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) [F940or 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 [F941CMA's] report under section 142, before each House of Parliament.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

257

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F927 Word in s. 172(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 202(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F928 Words in s. 172(1)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F929 S. 172(1)(aa) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 14(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F930 Words in s. 172(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 202(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F931 S. 172(2)(za)(zb) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 14(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F932 S. 172(2)(ba) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 12 para. 14(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F933 S. 172(2)(d) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(3); S.I. 2014/416, art. 2(1)(d) (with Sch.) F934 S. 172(3)(da)(db) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 10 para. 30(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F935 Words in s. 172(3)(e) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F936 Words in s. 172(7) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 10 para. 30(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F937 S. 172(7A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

12 para. 14(4); S.I. 2014/416, art. 2(1)(d) (with Sch.) F938 Words in s. 172(7A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(6); S.I. 2014/416, art. 2(1)(d) (with Sch.) F939 Words in s. 172(8)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(7); S.I. 2014/416, art. 2(1)(d) (with Sch.) F940 Words in s. 172(10) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 10 para. 30(8); S.I. 2014/416, art. 2(1)(d) (with Sch.) F941 Words in s. 172(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 202(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

173 Defamation: Part 4

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 [F942CMA], [F943by the Secretary of State or], by the appropriate Minister (other than the Secretary of State acting alone) F944... in the exercise of any of their functions under this Part.

Textual Amendments F942 Word in s. 173 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 5 para. 203(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F943 Words in s. 173 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 203(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F944 Words in s. 173 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 203(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

258 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Investigation powers

174 [F945Attendance of witnesses and production of documents etc.]

[F946(1) For the purposes of this section, the permitted purposes are the following— (a) assisting the CMA in carrying out its functions under section 5 in relation to

a matter in a case where it has published a market study notice; (b) 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 under section 131 or 132 or possible reference under section 131;

(c) 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 under section 140A(6) or possible reference under section 140A(5) or (6).

(2) The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.]

(3) The [F947CMA] may give notice to any person requiring him— (a) to attend at a time and place specified in the notice; and (b) to give evidence to the [F947CMA] or a person nominated by the [F947CMA]

for the purpose.

(4) The [F947CMA] may 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.

(5) The [F947CMA] may give notice to any person who carries on any business requiring him—

(a) to supply to the [F947CMA] 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.

(6) A notice under this section shall[F948— (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

[F949(6A) The 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.]

(7) The person to whom any document is produced in accordance with a notice under this section may, for [F950a permitted purpose], copy the document so produced.

(8) No person shall be required under this section—

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

259

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(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.

(9) 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.

[F951(9A) In subsection (1), “enforcement functions” means— (a) in relation to the CMA—

(i) functions conferred by virtue of section 164(2)(b) 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 160 or 162 in relation to enforcement undertakings or enforcement orders;

(b) in relation to the Secretary of State— (i) functions conferred by virtue of section 164(2)(b) 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 section 160 in relation to enforcement undertakings or enforcement orders.]

(10) 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.

(11) 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.

Textual Amendments F945 S. 174 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 36(7),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F946 S. 174(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 36(2),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F947 Word in s. 174(3)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 204 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F948 Words in s. 174(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

36(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F949 S. 174(6A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 36(4),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F950 Words in s. 174(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

36(5), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.) F951 S. 174(9A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 36(6),

103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

260 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C439 S. 174 modified by 2007 c. 29, s. 57(5) (as amended (1.4.2014) by The Enterprise and Regulatory

Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 176(2)(b) (with art. 3, Sch. 2 para. 4))

C440 S. 174 savings for effect of 2013 c. 24, s. 36, Sch. 11 (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 2 para. 3 (with art. 3)

[F952174AEnforcement of powers under section 174: general

(1) Where the CMA considers that a person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174, it may impose a penalty in accordance with section 174D.

(2) The CMA may proceed (whether at the same time or at different times) under subsection (1) and section 138A(3) in relation to the same failure.

(3) Where the CMA considers that a person has intentionally obstructed or delayed another person in the exercise of its powers under section 174(7), it may impose a penalty in accordance with section 174D.

(4) A person commits an offence if the person intentionally alters, suppresses or destroys any document which the person has been required to produce by a notice under section 174.

(5) But a person does not commit an offence under subsection (4) in relation to any act which constitutes a failure to comply with a notice under section 174 if the CMA has proceeded against the person under subsection (1) in relation to that failure.

(6) A person who commits an offence under subsection (4) is 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 2 years

or to a fine or to both.

(7) The CMA shall not proceed against a person under subsection (1) in relation to an act which constitutes an offence under subsection (4) if that person has been found guilty of that offence.

(8) In deciding whether and, if so, how to proceed under subsection (1) or (3) or section 138A(3), the CMA shall have regard to the statement of policy which was most recently published under section 174E at the time the failure or (as the case may be) the obstruction or delay concerned occurred.

(9) In this section— (a) the reference 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

(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

261

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F952 Ss. 174A-174E inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

174B Restriction on powers to impose penalties under section 174A

(1) No penalty shall be imposed by virtue of section 174A(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 174 power” means the power under section 174 to which the failure or (as the case may be) the obstruction or delay in question relates.

(3) Where the section 174 power is exercised for the purpose mentioned in section 174(1) (a), the relevant day is the day when the CMA finally concludes the carrying out of its section 5 functions.

(4) Where the section 174 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.

(5) Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section.

(6) Where the section 174 power is exercised for the purpose mentioned in section 174(1) (b) in connection with a matter that is the subject of a possible reference under section 131, the relevant day is the day when the CMA finally decides whether to make the reference.

(7) Where the section 174 power is exercised for the purpose mentioned in section 174(1) (b) in connection with a matter that is the subject of a reference under section 131 or 132, the relevant day is the day when the reference is finally determined (see section 183).

(8) Where the section 174 power is exercised for the purpose mentioned in section 174(1) (c) in connection with a matter that is the subject of a possible reference under section 140A(5) or (6), the relevant day is the day when the Secretary of State makes the reference.

(9) Where the section 174 power is exercised for the purpose mentioned in section 174(1) (c) in connection with a matter that is the subject of a reference under section 140A(6), the relevant day is the day when the reference is finally determined (see section 183).

Textual Amendments F952 Ss. 174A-174E inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

262 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Modifications etc. (not altering text) C441 S. 174B modified by 2007 c. 29, s. 57(5A) (as inserted (1.4.2014) by The Enterprise and Regulatory

Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 176(3) (with art. 3, Sch. 2 para. 4))

C442 S. 174B modified by 2000 c. 8, s. 140D(2) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 124(4) (with art. 3, Sch. 2 para. 4))

174C Section 174B: supplementary provision

(1) For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if—

(a) the CMA publishes the market study report under section 131B(4) or (as the case may be) gives it to the Secretary of State under section 140A(3)(b); or

(b) the period permitted for the preparation by the CMA of the market study report and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3)(b) expires and no such report has been so prepared or no such action has been taken.

(2) For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is—

(a) in a case falling within subsection (1)(a), the publication of the report or (as the case may be) the giving of it to the Secretary of State;

(b) in a case falling within subsection (1)(b), the expiry of the period concerned.

(3) For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if—

(a) the CMA makes such a reference; (b) the CMA accepts an undertaking under section 154 instead of making such

a reference; (c) the CMA publishes notice that it has otherwise decided not to make such a

reference; or (d) the period permitted for the preparation by the CMA of a market study

report in relation to the matter and for the report to be published under section 131B(4) has expired and no such report has been so prepared or published.

(4) For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 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

concerned; (c) in a case falling within subsection (3)(c), the publication of the notice

concerned; (d) in a case falling within subsection (3)(d), the expiry of the period concerned.

(5) In subsection (4)(b) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (3)(b) and (4)(b).

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

263

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F952 Ss. 174A-174E inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

174D Penalties

(1) A penalty imposed under section 174A(1) or (3) shall be of such amount as the CMA considers appropriate.

(2) In the case of a penalty imposed under section 174A(1), the amount may be— (a) a fixed amount; (b) an amount calculated by reference to a daily rate; or (c) a combination of a fixed amount and an amount calculated by reference to a

daily rate.

(3) In the case of a penalty imposed under section 174A(3), the amount shall be a fixed amount.

(4) A penalty imposed under section 174A(1) shall not— (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.

(5) A penalty imposed under section 174A(3) shall not exceed such amount as the Secretary of State may by order specify.

(6) An order under subsection (4) or (5) 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.

(7) Before making an order under subsection (4) or (5), the Secretary of State shall consult—

(a) the CMA; and (b) such other persons as the Secretary of State considers appropriate.

(8) In imposing a penalty by reference to a daily rate— (a) no account is to be taken of any days before the service on the person

concerned of notice of the penalty under section 112 (as applied by subsection (10)); and

(b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (9).

264 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

(9) Those days are— (a) the day on which the requirement of the notice concerned under section 174

is satisfied; (b) the day which is the relevant day in the case in question for the purposes of

section 174B.

(10) Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (3) as they apply in relation to a penalty imposed under section 110(1) or (3).

Textual Amendments F952 Ss. 174A-174E inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

174E Statement of policy on penalties

(1) The CMA shall prepare and publish a statement of policy in relation to the enforcement of notices given under section 174.

(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 174A(1) or (3).

(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 such persons as it considers appropriate when preparing or revising its statement of policy.]

Textual Amendments F952 Ss. 174A-174E inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force)

by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 1; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F953175 Enforcement of powers under section 174: offences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F953 S. 175 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 11 para. 3; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text) C443 S. 175 savings for effects of 2013 c. 24, s. 36, Sch. 11 (1.4.2014) by The Enterprise and Regulatory

Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 2 para. 3 (with art. 3)

Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations Chapter 4 – Supplementary Document Generated: 2021-02-16

265

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

F954176 Investigation powers of the Commission

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F954 S. 176 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 11 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Reports

177 Excisions from reports: Part 4

(1) Subsection (2) applies where the Secretary of State is under a duty to publish a report of the [F955CMA] under section 142.

(2) The Secretary of State may exclude a matter from the report 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.

(4) The [F956CMA] 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 136(4) to (6)F957... and 172(10) to the giving or laying of a report of the [F958CMA] shall be construed as references to the giving or laying of the report as published.

Textual Amendments F955 Word in s. 177(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 205 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F956 Word in s. 177(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 205 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F957 Words in s. 177(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 10 para. 31; S.I. 2014/416, art. 2(1)(d) (with Sch.) F958 Word in s. 177(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 205 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

178 Minority reports of [F959CMA]: Part 4

(1) Subsection (2) applies where, on a market investigation reference, a member of a group constituted in connection with the reference F960..., disagrees with any decisions contained in the report of the [F961CMA] under this Part as the decisions of the [F961CMA].

(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

266 Enterprise Act 2002 (c. 40) Part 4 – Market Studies and Market Investigations

Chapter 4 – Supplementary Document Generated: 2021-02-16

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

Textual Amendments F959 Word in s. 178 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 206(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F960 Words in s. 178(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 5 para. 206(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.) F961 Word in s. 178(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 5 para. 206(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Other

179 Review of decisions under Part 4

(1) Any person aggrieved by a decision of the [F962CMA], the appropriate Minister, [F963or the Secretary of State] in connection with a reference or possible reference under this Part may apply to the Competition Appeal Tribunal for a review of that decision.

(2) For this purpose “decision”— [F964(za) does not include a decision whether to carry out functions under section 5 in

a case where the CMA is, or would have been, required to publish a market study notice (see section 130A(1));]

(a) does not include a decision to impose a penalty under [F965section 174A(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.