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

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

(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 to 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 to 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 to 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

(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.

References under section 45: supplementary

46

(1) No reference shall be made under section 45 if—

(a) the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7; or

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Secretary of State, in deciding whether to make a reference under section 45, shall accept the decisions of the CMA 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.

(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.

Reports on references

Questions to be decided on references under section 45

47

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

(2) If the CMA 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 CMA 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 CMA 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 CMA 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 CMA 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.

(7) The CMA 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 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 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 CMA 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 CMA 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 CMA 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 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.

(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 CMA is not under a duty to disregard.

Cases where references or certain questions need not be decided

48

(1) The CMA 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 CMA to exclude from consideration—

(a) subsection (1) of section 23;

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

(3) In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen or the question whether any such result will arise, a reference under section 45 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.

Variation of references under section 45

49

(1) 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) 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 CMA 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 ... 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 CMA 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 ... 2, 7 and 8 of Schedule 7 shall, 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 ... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (1), treats a reference as mentioned in subsection (1).

(5) The ... order shall, so far as applicable, continue in force as if—

(a) in the case of an ... order which relates to a reference under subsection (2) or (3) of section 45 ... 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 ... order which relates to a reference made under subsection (4) or (5) of that section ... made in relation to a reference made under subsection (2) or (as the case may be) (3) of that section;

and the ... order concerned may be varied ... 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 CMA before varying any such reference.

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

Investigations and reports on references under section 45

50

(1) The CMA 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—

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

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

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

Time-limits for investigations and reports by Commission

51

(1) The CMA 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) Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the CMA 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.

(2A) Where —

(a) the CMA and the persons carrying on the enterprises concerned agree—

(i) that the period within which a report under section 50 is to be prepared and published (the “original period”) should be extended, and

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

(b) the Secretary of State consents to the original period being extended by 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 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 CMA 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

(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) 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,

(ii) the Secretary of State consents to the cancellation of the extension with effect from that time, and

(iii) 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.

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

Section 51: supplementary

52

(1) No 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) 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)(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 any subsection of section 51 may also be extended under any other subsection 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(2A), (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

(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) 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 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 CMA 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 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 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 CMA for the purposes of section 51(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 51(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 51(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 51(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.

Restrictions on action where public interest considerations not finalised

53

(1) The CMA 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;

(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 ... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the CMA 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; or

(b) the public interest consideration concerned has been finalised; or

(c) the report must be given to the Secretary of State to ensure compliance with article 9(6) of the European Merger Regulations.

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

Decisions of the Secretary of State

Decision of Secretary of State in public interest cases

54

(1) Subsection (2) applies where the Secretary of State has received a report of the CMA 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 ... 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 ... 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 ... 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 ... 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 working days beginning with the receipt of the report of the CMA 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 CMA 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—

(a) in connection with a reference ... under section 45(2) or (4), the decision of the report of the CMA under section 50 as to whether there is an anti-competitive outcome; and

(b) in connection with a reference ... under section 45(3) or (5)—

(i) the decision of the report of 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 CMA under section 44 as to the absence of a substantial lessening of competition.

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

Enforcement action by Secretary of State

55

(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 CMA 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.

Other

Competition cases where intervention on public interest grounds ceases

56

(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 CMA to deal with the matter otherwise than under this Chapter.

(2) Where a notice is given to the CMA in the circumstances mentioned in subsection (1), the CMA shall decide whether to make a reference under section 22 , 33, 68B or 68C; 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 CMA whether to make a reference under section 22 , 33, 68B or 68C.

(3) Where the CMA cancels under section 53(1) a reference under section 45 and its 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 CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ....

(4) In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the CMA 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 working 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 CMA were confined to the questions on the subject to be investigated by it under section 47.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ... 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.

(7) In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the CMA 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 CMA by virtue of section 47(8).

(8) Where the CMA becomes under a duty to proceed as mentioned in subsection (3) or (6)—

(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 ... under section 22 or (as the case may be) 33; 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.

Duties of OFT and Commission to inform Secretary of State

57

(1) The CMA shall, in considering whether to make a reference under section 22, 33, 68B or 68C, 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.

(2) The CMA 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 CMA or (as the case may be) OFCOM.

Specified considerations

58

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

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

(2A) The need for—

(a) accurate presentation of news; and

(b) free expression of opinion;

in news media is specified in this section.

(2B) The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in news media in each market for news media 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 enterprises consisting in or involving broadcasting, 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.

(2D) The interest of maintaining the stability of the UK financial system is specified in this section ....

(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.

(2F) In this Part, “news media” means—

(a) newspapers; or

(b) news programmes.

(2G) In this Part, “news programme” means a programme—

(a) consisting of, or including, news-related material; and

(b) included in broadcasting.

(2H) For the purposes of subsection (2G)—

(a) “news-related material” includes—

(i) news or information about current affairs; and

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

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

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

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

(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 CMA, 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.

Chapter 3 — Other special cases

Special public interest cases

Intervention by Secretary of State in special public interest cases

59

(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 CMA (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.

(3) For the purposes of this Part, a special 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;

(b) no relevant merger situation has been created; and

(c) immediately before the enterprises concerned ceased to be distinct, one or more of the conditions mentioned in subsections (3C) to (3F) were satisfied.

(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(3E) The condition mentioned in this subsection is that a relevant merger situation would have been created if, in subsection (1) of section 23—

(a) the “and” at the end of paragraph (a) were omitted;

(b) for paragraph (b) there were substituted—

(b) one of the enterprises concerned is a media enterprise ...; and

;

(c) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million.

(3F) The condition mentioned in this subsection is that a relevant merger situation would have been created if, for section 23(2)(c), there were substituted—

(c) one of the enterprises concerned is a media enterprise ....

(5) For the purposes of deciding whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24, 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 a special intervention notice, the time when the notice is given; (aa) in relation to the making of a report by the CMA 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 CMA may determine; and

;

(b) the references to the CMA in section 24(2)(a) and (b) included references to the Secretary of State;

(d) the references to the CMA 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;

(f) 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;

(g) 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 a special intervention notice;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) in the case of the giving of special 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 a special intervention notice or a special intervention notice; ...

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

(6A) The Secretary of State may by order —

(a) substitute a new sum for the sum for the time being mentioned in subsection (3E)(c);

(b) amend the conditions mentioned in subsections (3C), (3D), (3E)(b) and (3F).

(7) No more than one special intervention notice shall be given under subsection (2) in relation to the same special merger situation.

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

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special intervention notices under section 59

60

(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 CMA or (if relevant) OFCOM is to report to the Secretary of State under section 61 or (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 CMA cancels such a reference under section 64(1);

(e) the time within which theCMA 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;

(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.

Initial investigation and report by OFT

61

(1) Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special 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 62; and

(b) a summary of any representations about the case which have been received by the CMA and which relate to any consideration mentioned in the special intervention notice concerned (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 CMA believes (disregarding section 59(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.

(4A) 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 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 CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

Power of Secretary of State to refer the matter

62

(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 CMA under section 61, 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 to 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 to 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.

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

Questions to be decided on references under section 62

63

(1) The CMA shall, on a reference under section 62(2), decide whether a special merger situation has been created.

(2) The CMA 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 CMA 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 CMA 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 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 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.

Cancellation and variation of references under section 62

64

(1) The CMA 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 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 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 CMA 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 ... 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 ... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, 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 ... order shall, so far as applicable, continue in force as if—

(a) in the case of an ... order which relates to a reference under subsection (2) of section 62... made in relation to a reference made under subsection (3) of that section; and

(b) in the case of an ... order which relates to a reference made under subsection (3) of that section... made in relation to a reference made under subsection (2) of that section;

and the ... order concerned may be varied... 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 CMA before varying any such reference.

(8) Subsection (7) shall not apply if the CMA 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 CMA under that section is to be prepared and given to the Secretary of State.

Investigations and reports on references under section 62

65

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

(2A) Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the CMA 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 CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.

Decision and enforcement action by Secretary of State

66

(1) Subsection (2) applies where the Secretary of State has received a report of the CMA under section 65 in relation to a special merger situation.

(2) The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the CMA 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 CMA 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 CMA 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 CMA under section 65.

...

Intervention to protect legitimate interests

67

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

Scheme for protecting legitimate interests

68

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

Other

Newspaper mergers

69

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

Water mergers

70

(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) 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) (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. (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) The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises. (35) (1) In this Chapter (including Schedule 4ZA)— - “enterprise” has the same meaning as in Part 3 of the 2002 Act; and - “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, 33, 68B or 68C

Initial undertakings: completed mergers

71

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

Initial enforcement orders: completed mergers

72

(1) Subsection (2) applies where—

(a) the CMA is considering whether to make a reference under section 22, 33, 68B or 68C; and

(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 CMA may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the CMA 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.

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

(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.

(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.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) So far as made in relation to a reference under section 22, 33, 68B or 68C, an order under this section which has not previously ceased to be in force and which has not been adopted under paragraph 2 of Schedule 7 ceases to be in force in relation to the reference concerned—

(a) where the CMA has decided to make the reference concerned ... —

(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 CMA 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

(d) where the CMA has otherwise decided not to make the reference concerned under section 22, 33, 68B or 68C, on the making of that decision.

(7) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

(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.

Undertakings in lieu of references under section 22 or 33

73

(1) Subsection (2) applies if the CMA considers that it is under a duty to make a reference under section 22(1) or 33(1) (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 CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).

(2) The CMA 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 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.

(3A) Subsection (3B) applies if the CMA considers that it is under a duty to make a reference under section 68B or 68C; and for the purposes of this subsection it must—

(a) disregard the operation of section 22(3)(b) or 33(3)(b) (as applied by section 68B or 68C), but

(b) take account of its power under section 68B(2) or 68C(2) to decide not to make such a reference.

(3B) The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing—

(a) the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), or

(b) 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.

(3C) In proceeding under subsection (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the prejudice and any adverse effects resulting from it.

(3D) Before proceeding under subsection (3B), the CMA must—

(a) ask the Gas and Electricity Markets Authority to give its opinion on the effect of the undertakings offered, and

(b) consider the Authority’s opinion.

(4) In proceeding under subsection (2) or (3B), 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) An undertaking under this section—

(a) shall come into force when accepted;

(b) may be varied or superseded by another undertaking; and

(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 CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

Effect of undertakings under section 73

74

(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 CMA has accepted an undertaking or group of undertakings under section 73(2); and

(b) the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

(1A) The relevant authority may not make a reference under section 45, 68B or 68C in relation to the creation of a relevant merger situation if—

(a) the CMA has accepted an undertaking or group of undertakings under section 73(3B), and

(b) the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

(2) Subsections (1) and (1A) do 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 CMA 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 , 33, 68B or 68C, the CMA; and

(b) in relation to a possible reference under section 45, the Secretary of State.

Order-making power where undertakings under section 73 not fulfilled etc.

75

(1) Subsection (2) applies where the CMA considers that—

(a) an undertaking accepted by it under section 73(2) or (3B) 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 CMA by the person giving the undertaking before the CMA decided to accept the undertaking.

(2) The CMA may, for any of the purposes mentioned in section 73(2) or (3B) (as the case may be), make an order under this section.

(3A) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

(a) in relation to the purpose mentioned in section 73(2), the substantial lessening of competition mentioned in that subsection and any adverse effects resulting from it;.

(b) in relation to the purpose mentioned in section 73(3B), the prejudice mentioned in that subsection and any adverse effects resulting from it.

(3B) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), 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.

(4) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the CMA 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

(6) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Supplementary interim order-making power

76

(1) Subsection (2) applies where—

(a) the CMA 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 CMA 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 CMA 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 CMA 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 CMA 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 CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Interim restrictions and powers

Restrictions on certain dealings: completed mergers

77

(1) Subsections (2) and (3) apply where—

(a) a reference has been made under section 22 or 68B but not finally determined; and

(b) no undertakings under section ... 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 CMA —

(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

(3) No relevant person shall, without the consent of the CMA, 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 CMA under subsection (2) or (3)—

(a) may be general or special;

(b) may be revoked by the CMA; and

(c) shall be published in such manner as the CMA 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 CMA 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

(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

78

(1) Subsection (2) applies where—

(a) a reference has been made under section 33 or 68C; and

(b) no undertakings under section 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 CMA, 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 CMA under subsection (2)—

(a) may be general or special;

(b) may be revoked by the CMA; and

(c) shall be published in such manner as the CMA 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 CMA 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

(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— any person who carries on any enterprise to which the reference relates or who has control of any such enterprise; any subsidiary of any person falling within paragraph (a); or 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.

Sections 77 and 78: further interpretation provisions

79

(1) For the purposes of this Part a reference under section 22 , 33, 68B or 68C is finally determined if—

(a) the reference is cancelled under section 37(1);

(b) the time within which the CMA 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;

(i) in relation to a reference under section 22 or 33, there is not an anti-competitive outcome, or

(ii) in relation to a reference under section 68B or 68C, there is not a prejudicial outcome;

(d) the report of the CMA under that section contains the decision that—

(i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or

(ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and

the CMA has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;

(e) the report of the CMA under that section contains the decision that—

(i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or

(ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and

the CMA 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 , 33, 68B or 68C 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;

(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

(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 an obligation assumed before the publication by the CMA 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.

(5A) References in subsection (1) to a prejudicial outcome are to a prejudicial outcome within the meaning of section 35 or 36 as those sections have effect by virtue of paragraphs 6 and 7 of Schedule 5A.

(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) Section 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 paragraph 8 of Schedule 6 as so applied shall be construed accordingly.

Interim undertakings

80

(1) Subsections (2) and (2A) apply where a reference under section 22 , 33, 68B or 68C has been made but is not finally determined.

(2) The CMA 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.

(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.

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.

Enterprise Act 2002

References under section 45: supplementary

46

Reports on references

Questions to be decided on references under section 45

47

Cases where references or certain questions need not be decided

48

Variation of references under section 45

49

Investigations and reports on references under section 45

50

Time-limits for investigations and reports by Commission

51

Section 51: supplementary

52

Restrictions on action where public interest considerations not finalised

53

Decisions of the Secretary of State

Decision of Secretary of State in public interest cases

54

Enforcement action by Secretary of State

55

Other

Competition cases where intervention on public interest grounds ceases

56

Duties of OFT and Commission to inform Secretary of State

57

Specified considerations

58

Chapter 3 — Other special cases

Special public interest cases

Intervention by Secretary of State in special public interest cases

59

Special intervention notices under section 59

60

Initial investigation and report by OFT

61

Power of Secretary of State to refer the matter

62

Questions to be decided on references under section 62

63

Cancellation and variation of references under section 62

64

Investigations and reports on references under section 62

65

Decision and enforcement action by Secretary of State

66

...

Intervention to protect legitimate interests

67

Scheme for protecting legitimate interests

68

Other

Newspaper mergers

69

Water mergers

70

Chapter 4 — Enforcement

Powers exercisable before references under section 22, 33, 68B or 68C

Initial undertakings: completed mergers

71

Initial enforcement orders: completed mergers

72

Undertakings in lieu of references under section 22 or 33

73

Effect of undertakings under section 73

74

Order-making power where undertakings under section 73 not fulfilled etc.

75

Supplementary interim order-making power

76

Interim restrictions and powers

Restrictions on certain dealings: completed mergers

77

Restrictions on certain share dealings: anticipated mergers

78

Sections 77 and 78: further interpretation provisions

79

Interim undertakings