Legalize / United Kingdom / Public General Act

Enterprise Act 2002

Type Public General Act

Publication 2002-11-07

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — General functions of the CMA

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Defamation

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Restricted PI references: publication

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Role of CMA in relation to undertakings and orders in public interest cases: Part 4

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Cartel offence

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General functions of the CMA

Powers of trustee in bankruptcy

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(1) The CMA 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 CMA has sufficient information to take informed decisions and to carry out its other functions effectively.

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

Disqualification from office: general

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(1) The CMA 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 CMA 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.

Turnover

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(1) The CMA 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).

(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 CMA to make proposals or give other information or advice on any matter relating to any of its functions; and the CMA shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.

(3) In this section—

“market in the United Kingdom” includes— 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 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— an Act of Parliament, or subordinate legislation (within the meaning given by section 21 of the Interpretation Act 1978).

Transport Act 2000 (c. 38)

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Miscellaneous

Transport Act 2000 (c. 38)

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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.

Electricity Act 1989 (c. 29)

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(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

(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)—

(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.

Super-complaints to OFT

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(1) This section applies where a designated consumer body makes a complaint to the CMA 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 CMA 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 CMA'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 CMA —

(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

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

Part 2 — The Competition Appeal Tribunal

The Competition Appeal Tribunal

Pensions etc. of former Directors

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(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”);

(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

(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.

Tribunal rules

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(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.

Constitution of Tribunal for particular proceedings and its decisions

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(1) For the purposes of any proceedings before it, 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.

(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, 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 the 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 paragraphs 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.

Tribunal rules

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(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, 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

(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).

Patents Act 1977 (c. 37)

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(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 court 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— the High Court or the county court; or the Court of Session or a sheriff court; and

“infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition 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.

Proceedings under Part 1 of 1998 Act

Third party appeals

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

(47) (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.

Electricity Act 1989 (c. 29)

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

(47A) (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 European 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 (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 European 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. (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.

Claims on behalf of consumers

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

(47B) (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 (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

Water Industry Act 1991 (c. 56)

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

Findings of infringements (58A) (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 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 ”.

Coal Industry Act 1994 (c. 21)

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

Part 3 — Mergers

Chapter 1 — Duty to make references

Duty to make references: completed mergers

Channel Tunnel Rail Link Act 1996 (c. 61)

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(1) The 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.

(1A) The CMA must 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 decided, under section 34ZF(2), to accept a fast-track reference request.

(2) The CMA may decide not to make a reference under subsection (1) 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 ...; 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 subsection (1) if—

(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 . . . 74(1) ... or paragraph 4 of Schedule 7;

(b) the CMA 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 ...; or

(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 CMA under section 56(1); or

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 ..., the 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, the CMA or (as the case may be) the Secretary of State.

Chiropractors Act 1994 (c. 17)

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(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

(b) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £100 million.

(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; ...

(b) as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent ; and

(i) the enterprise being taken over, or

(ii) any other enterprise concerned,

exceeds £10 million.

(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2B) For the purposes of subsection (2)(c)(ii), any turnover of any other enterprise concerned that is also turnover of the enterprise being taken over is to be ignored.

(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.

(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.

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4C) 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

(b) each of the conditions mentioned in subsections (4D) to (4F) is satisfied.

(4D) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, in relation to the supply of goods or services of any description, at least 33 per cent of all the goods or (as the case may be) services of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom, would be supplied—

(a) by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or

(b) to that person or those persons,

in connection with E or any other enterprise concerned with which E is under common ownership or common control.

(4E) The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million.

(4F) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, an enterprise within subsection (4G) would satisfy one or more of the following additional conditions—

(a) the enterprise would be carried on by a body of persons corporate or unincorporate formed or recognised under the law of any part of the United Kingdom;

(b) the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom;

(c) the person, or persons, by whom the enterprise would be carried on supply goods or services to a person or persons in the United Kingdom in connection with the enterprise.

(4G) The following enterprises are within this subsection—

(a) any enterprise concerned other than—

(i) E, or

(ii) any other enterprise with which E is under common ownership or common control;

(b) any enterprise concerned that, as a result of the enterprises concerned ceasing to be distinct enterprises, a person or group of persons may be treated as having brought under their control by virtue of section 26(4).

(5) For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3) or (4) , or of 33 per cent mentioned in subsection (4D), 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) , (4), (4D) and (4F)(c) 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

(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.

(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 CMA may determine; and

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

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

Time-limits and prior notice

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(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 CMA 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 CMA, 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.

Extension of time-limits

25

(1) The CMA 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 working days the four month period mentioned in section 24(1)(a) or (2)(b).

(2) The CMA 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 has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109.

(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 CMA 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 working days beginning with the first day after the receipt by the CMA 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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) and (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.

(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).

Enterprises ceasing to be distinct enterprises

26

(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

(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.

Time when enterprises cease to be distinct

27

(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.

(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.

Utilities Act 2000 (c. 27)

28

(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 CMA shall—

(a) keep under review the sums for the time being mentioned in section 23(1)(b) , (2)(c) and (4E); and

(b) from time to time advise the Secretary of State as to whether the sums are still appropriate.

(6) The Secretary of State may by order amend section 23(1)(b) , (2)(c) or (4E) so as to alter any of the sums for the time being mentioned there.

Obtaining control by stages

29

(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.

(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.

Utilities Act 2000 (c. 27)

30

(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;

(b) customers of such customers; and

and in this subsection “customers” includes future customers.

Information powers in relation to completed mergers

31

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

Supplementary provision for purposes of sections 25 and 31

32

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

Duty to make references: anticipated mergers

Duty to make references in relation to anticipated mergers

33

(1) The 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.

(1A) The CMA must 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 decided, under section 34ZF (3), to accept a fast-track reference request.

(2) The CMA may decide not to make a reference under subsection (1) 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 ...;

(b) the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference ...; 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 subsection (1) if—

(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 . . . 74(1) ... or paragraph 4 of Schedule 7;

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

(c) the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22 ...; or

(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 CMA under section 56(1); or

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Supplementary provision in relation to anticipated mergers

34

(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) or 59(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;

(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.

Determination of references

Questions to be decided in relation to completed mergers

35

(1) Subject to subsections (6) and (7) and section 127(3), the CMA 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—

(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 CMA 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 CMA 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 CMA 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 CMA to exclude from consideration—

(a) subsection (1) of section 23;

(b) subsection (2) of that section; or

(7) In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen, a reference under section 22 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Questions to be decided in relation to anticipated mergers

36

(1) Subject to subsections (5) and (6) and section 127(3), the CMA 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 CMA 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 CMA 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 CMA 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 CMA to exclude from consideration—

(a) subsection (1) of section 23;

(b) subsection (2) of that section; or

(6) In relation to the question whether any such result as is mentioned in section 23(2)(b) will arise, a reference under section 33 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

Cancellation and variation of references under section 22 or 33

37

(1) The CMA 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 CMA 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 CMA 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 CMA, 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 CMA may at any time vary a reference under section 22 or 33.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Investigations and reports on references under section 22 or 33

38

(1) The CMA 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 CMA 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 CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.

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

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

Time-limits for investigations and reports

39

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

(2) Where 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.

(2A) Where the CMA and the persons carrying on the enterprises concerned agree—

(a) that the period within which a report under section 38 is to be prepared and published (the “original period”) should be extended, and

(b) the duration of the period by which the original period should be extended (the “extension period”),

the CMA may extend the original period by the extension period.

(3) The CMA may extend, by no more than 8 weeks, the period within which a report under section 38 on a reference under section 22(1) or 33(1) 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.

(3A) The CMA may extend, by no more than 11 weeks, the period within which a report under section 38 on a reference under section 22(1A) or 33(1A) 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 CMA 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 this 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

(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 (2A), (3) , (3A) or (4) shall come into force when published under section 107.

(7A) An extension under subsection (2A) continues in force until—

(a) the end of the extension period, or

(b) an earlier time if, before the end of that period—

(i) the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time, and

(ii) the CMA publishes its decision to cancel the extension with effect from that time.

(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 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.

(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.

Section 39: supplementary

40

(1) No 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) Where 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 any subsection of section 39 may also be extended under any other subsection of that section.

(4) No more than one extension is possible under section 39(3) or (3A).

(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(2A), (3) , (3A) 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) the 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) or (2)(a) of section 39 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 CMA 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 CMA 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 CMA 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 CMA 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 CMA 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 CMA 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 CMA;

(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 CMA 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.

Duty to remedy effects of completed or anticipated mergers

41

(1) Subsection (2) applies where a report of the CMA 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.

(2) The CMA 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 CMA 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 CMA otherwise has a special reason for deciding differently.

(4) In making a decision under subsection (2), the CMA 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 CMA 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.

Chapter 2 — Public interest cases

Power to make references

Intervention by Secretary of State in certain public interest cases

42

(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, 33, 68B or 68C 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 subsection (2)(a) of section 68C 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, 33, 68B or 68C by virtue of—

(i) section 22(3)(za) or (a) or (as the case may be) 33(3)(za) or (a) (including those provisions as applied by sections 68B and 68C); ...

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Secretary of State may give a notice to the CMA (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 to 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 to 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 CMA 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 CMA may determine; and

;

(b) the references to the CMA in section 25(1) to (3) ... 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) for “ and (4) ” there were substituted “, (4) and (5A)”;

(g) the reference in section 25(12) to one extension were a reference to one extension by the CMA and one extension by the Secretary of State;

(h) the powers to extend time-limits under section 25 as applied by subsection (5) above ... were not exercisable by the CMA or the Secretary of State before the giving of an intervention notice but the existing time-limits by 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 by 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 CMA or the Secretary of State under section 25 as so applied;

(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k) in the case of the giving of intervention notices, the references in sections 23 to 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; ...

(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.

(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.

Intervention notices under section 42

43

(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

(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 CMA or (if relevant) OFCOM is to report to the Secretary of State under section 44 or (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 CMA cancels such a reference under section 48(1) or 53(1);

(e) the time within which the CMA 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.

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

Investigation and report by OFT

44

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

(2) The CMA 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 CMA 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 CMA and which relate to any public interest consideration mentioned in the intervention notice concerned (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 CMA 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 ... 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

(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 CMA 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 CMA believes are, or may be, appropriate.

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

(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 publication which—

(a) consists of, or includes, news-related material which is subject to editorial control;

(b) is published on any periodic basis; and

(10A) For the purposes of subsection (10)—

(a) “news-related material” means—

(i) news or information about current affairs; or

(ii) opinion about matters relating to the news or current affairs;

(b) news-related material contained in a publication is subject to editorial control if the publisher of the publication has editorial or equivalent responsibility for—

(i) the content of the material (which may include commissioning it);

(ii) how the material is presented; and

(iii) the decision to first publish the material;

(c) a publication is not to be treated as consisting of, or including, news-related material if the news-related material contained in the publication—

(i) is included only incidentally to the main content of the publication; or

(ii) relates wholly to a particular pastime, hobby, trade, business, industry or profession;

(d) “publication” means a publication which is—

(i) online; or

(ii) in hard copy,

and references to “publish” or a “publisher” are to be construed accordingly;

(e) a reference to a publication being published on any periodic basis includes, in relation to an online publication, a reference to it being updated on any periodic or other recurring basis;

(f) a publication is connected with the United Kingdom if—

(i) the majority of its readership is in the United Kingdom;

(ii) the majority of editorial decisions about the publication are taken in the United Kingdom; or

(iii) the registered or principal office of the publisher of the publication is in the United Kingdom.

(11) The Secretary of State may by order amend subsections (9) and (10).

Power of Secretary of State to refer matter to Commission

45

(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

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