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

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(1) This section applies in relation to any document required or authorised under this Part to be served on a person by the CMA, OFCOM or the Secretary of State.

(2) The document may be served by—

(a) delivering it to the person,

(b) leaving it at the person’s proper address,

(d) sending it to the person by email to their email address.

(3) A document may be served on a body corporate by giving it to any officer of that body.

(4) A document may be served on a partnership by giving it to any partner or a person who has the control or management of the partnership business.

(5) A document may be served on an unincorporated body or association (other than a partnership) by giving it to any member of the governing body of the association.

(6) A person’s proper address is—

(a) in a case where the person has specified an address as one at which the person, or someone acting on the person’s behalf, will accept service of documents, that address;

(b) in any other case, the address determined in accordance with subsection (7).

(7) A person’s “proper address” is (if subsection (6)(a) does not apply)—

(a) in the case of a body corporate, its registered or principal office;

(b) in the case of a partnership, the principal office of the partnership;

(d) in a case where none of paragraphs (a) to (c) apply, any address at which the CMA, OFCOM or the Secretary of State believes, on reasonable grounds, that the document will come to the attention of the person.

(8) A person’s email address is—

(a) any email address published for the time being by that person as an address for contacting that person, or

(b) if there is no such published address, any email address by means of which the CMA, OFCOM or the Secretary of State believes, on reasonable grounds, that the document will come to the attention of that person.

(9) In the case of—

(a) a body corporate registered outside the United Kingdom,

(b) a partnership carrying on business outside the United Kingdom, or

references to its principal office include references to its principal office in the United Kingdom or, if it has no principal office in the United Kingdom, any place in the United Kingdom where it carries on business or conducts activities.

(10) In this section “officer”, in relation to any body corporate, means a director, manager, secretary or other similar officer of the body.

(11) This section does not limit any other lawful means of serving a document on a person.

Associated persons

127

(1) Associated persons, and any bodies corporate which they or any of them control, shall be treated as one person—

(a) for the purpose of deciding under section 26 whether any two enterprises have been brought under common ownership or common control;

(aa) for the purposes of section 58(2C); ...

(ab) for the purposes of section 70A(3);

(b) for the purpose of determining what activities are carried on by way of business by any one person so far as that question arises in connection with paragraph 13(2) of Schedule 8.

(2) Subsection (1) shall not exclude from section 26 any case which would otherwise fall within that section.

(3) A reference under section 22, 33, 45 , 62, 68B or 68C (whether or not made by virtue of this section) may be framed so as to exclude from consideration, either altogether or for a specified purpose or to a specified extent, any matter which, apart from this section, would not have been taken into account on that reference.

(4) For the purposes of this section—

(a) any individual and that individual’s spouse , civil partner or partner and any relative, or spouse or partner of a relative, of that individual or of that individual’s spouse , civil partner or partner;

(b) any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;

(c) persons carrying on business in partnership and the spouse , civil partner or partner and relatives of any of them; or

(d) two or more persons acting together to secure or exercise control of a body of persons corporate or unincorporate or to secure control of any enterprise or assets,

shall be regarded as associated with one another.

(5) The reference in subsection (1) to bodies corporate which associated persons control shall be construed in accordance with section 26(3) and (4).

(6) In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild of any person, or anyone adopted by a person, whether legally or otherwise, as his child being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a spouse , civil partner or partner shall include a former spouse , civil partner or partner.

Supply of services and market for services etc.

128

(1) References in this Part to the supply of services shall be construed in accordance with this section; and references in this Part to a market for services and other related expressions shall be construed accordingly.

(2) The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.

(3) The supply of services includes—

(a) performing for gain or reward any activity other than the supply of goods;

(b) rendering services to order;

(4) The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.

(5) The supply of services includes making arrangements by means of a relevant agreement (within the meaning of paragraph 17 of Schedule 3A to the Communications Act 2003 (the electronic communications code)) for sharing the use of electronic communications apparatus.

(6) The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State may by order specify.

Other interpretation provisions

129

(1) In this Part, unless the context otherwise requires—

“action” includes omission; and references to the taking of action include references to refraining from action;

“agreement” means any agreement or arrangement, in whatever way and whatever form it is made, and whether it is, or is intended to be, legally enforceable or not;

“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;

“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;

“consumer” means any person who is— a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them; and who does not receive or seek to receive the goods or services in the course of a business carried on by him;

“customer” includes a customer who is not a consumer;

“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;

“enterprise” means the activities, or part of the activities, of a business;

“the European Merger Regulations” means Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997;

“foreign state intervention notice” means a notice under section 70A(1);

“foreign state newspaper merger situation” is to be interpreted in accordance with section 70A(3);

“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;

“modify” includes amend or repeal;

“notice” means notice in writing;

“price” includes any charge or fee (however described);

“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;

“subsidiary” has the meaning given by section 1159 of the Companies Act 2006 (c. 6);

“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person;

“the UK financial system” means the financial system in the United Kingdom; and

“United Kingdom national” means an individual who is— a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen; a person who under the British Nationality Act 1981 (c. 61) is a British subject; or a British protected person within the meaning of that Act.

“working day” means any day other than— a Saturday or Sunday, or a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

(2) For the purposes of this Part any two bodies corporate are interconnected if—

(a) one of them is a body corporate of which the other is a subsidiary; or

(b) both of them are subsidiaries of one and the same body corporate;

and in this Part “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(3) References in this Part to a person carrying on business include references to a person carrying on business in partnership with one or more other persons.

(4) Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as he considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.

Index of defined expressions

130

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

Part 4 — Market Studies and Market Investigations

Chapter 1 — Market Studies and market investigation references

Making of references

Power of OFT to make references

131

(1) The CMA may, subject to subsection (4), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2) For the purposes of this Part any reference to a feature of a market in the United Kingdom for goods or services shall be construed as a reference to—

(a) the structure of the market concerned or any aspect of that structure;

(b) any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or

(2A) In a case where the feature or each of the features concerned falls within subsection (2)(b) or (c), a reference under subsection (1) may be made in relation to more than one market in the United Kingdom for goods or services.

(3) In subsection (2) “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.

(4) No reference shall be made under this section if—

(a) the making of the reference is prevented by section 156(A1) or (1); or

(b) a reference has been made under section 132 or 140A(6) in relation to the same matter but has not been finally determined.

(5) References in this Part to a market investigation reference being finally determined shall be construed in accordance with section 183(3) to (6).

(6) In this Part—

“cross-market reference” means a reference under this section which falls within subsection (2A) or a reference under section 132 which falls within subsection (3A) of that section (and see section 140A);

“market in the United Kingdom” includes— 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;

“market investigation reference” means a reference under this section or section 132 or 140A(6);

“ordinary reference” means a reference under this section or section 132 which is not a cross-market reference (and see section 140A);

and references to a market for goods or services include references to a market for goods and services.

Ministerial power to make references

132

(1) Subsection (3) applies where, in relation to any goods or services—

(a) the appropriate Minister is not satisfied with a decision of the CMA not to make a reference under section 131; and

(b) in a case in which the CMA has published a market study notice under section 130A, the period permitted by section 131B for the preparation and publication by the CMA of the market study report has expired.

(2) Subsection (3) also applies where, in relation to any goods or services, the appropriate Minister—

(a) has brought to the attention of the CMA information which the appropriate Minister considers to be relevant to the question of whether the CMA should make a reference under section 131; but

(b) is not satisfied that the CMA will decide, within such period as the appropriate Minister considers to be reasonable, whether to publish a market study notice in relation to the matter concerned.

(3) The appropriate Minister may, subject to subsection (4), make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(3A) In a case where the feature or each of the features concerned falls within section 131(2)(b) or (c), a reference under subsection (3) may be made in relation to more than one market in the United Kingdom for goods or services.

(4) No reference shall be made under this section if—

(a) the making of the reference is prevented by section 156(A1) or (1); or

(b) a reference has been made under section 140A(6) in relation to the same matter but has not been finally determined.

(5) In this Part “the appropriate Minister” means—

(a) the Secretary of State; ...

(b) the Secretary of State and one or more than one other Minister of the Crown acting jointly;

(d) the Scottish Ministers, the Secretary of State and one or more than one other Minister of the Crown, acting jointly.

Contents of references

133

(1) A market investigation reference shall, in particular, specify—

(a) the enactment under which it is made;

(b) the date on which it is made; ...

(c) in the case of an ordinary reference, the description of goods or services to which the feature or combination of features concerned relates; and

(d) in the case of a cross-market reference, the feature or features concerned and the descriptions of goods or services to which it or they relate.

(1A) A market investigation reference may be framed so as to require the group constituted by the chair of the CMA in respect of the reference to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of particular features of such markets.

(1B) For the purposes of subsection (1A), “particular features” means features specified in the reference.

(2) For the purposes of subsection (1A), a reference may (for example) specify or describe features that exist in connection with—

(a) a supply or, in the case of a cross-market reference, supplies, of a description specified in the reference, of the goods or services concerned; or

(b) an acquisition or, in the case of a cross-market reference, acquisitions, of a description specified in the reference, of the goods or services concerned.

(3) A description of the kind mentioned in subsection (2)(a) or (b) may, in particular, be by reference to—

(a) the place where the goods or services are supplied or acquired; or

(b) the persons by or to whom they are supplied or by or from whom they are acquired.

Determination of references

Questions to be decided on market investigation references

134

(1) The CMA shall, on an ordinary reference, decide whether any relevant feature of each relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(1A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2) For the purposes of this Part, in relation to an ordinary reference, there is an adverse effect on competition if any relevant feature of a relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2A) For the purposes of this Part, in relation to a cross-market reference, there is an adverse effect on competition if a feature or a combination of the features specified in the reference, as that feature or combination of features relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2B) In subsections (1) and (2), “relevant feature” means—

(a) any feature of a relevant market which is not excluded from investigation by virtue of section 133(1A), or

(b) a combination of such features.

(3) In subsections (1) and (2) “relevant market” means—

(a) in the case of subsection (2) so far as it applies in connection with a possible reference, a market in the United Kingdom—

(i) for goods or services of a description to be specified in the reference; and

(ii) which would not be excluded from investigation by virtue of section 133(2); and

(b) in any other case, a market in the United Kingdom—

(i) for goods or services of a description specified in the reference concerned; and

(ii) which is not excluded from investigation by virtue of section 133(2).

(4) The CMA shall, if it has decided on a market investigation reference that there is an adverse effect on competition, decide the following additional questions—

(a) whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;

(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and

(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.

(5) For the purposes of this Part, in relation to a market investigation reference, there is a detrimental effect on customers if there is a detrimental effect on customers or future customers in the form of—

(a) higher prices, lower quality or less choice of goods or services in any market in the United Kingdom (whether or not the market or markets to which the feature or features concerned relate); or

(b) less innovation in relation to such goods or services.

(6) In deciding the questions mentioned in subsection (4), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(7) In deciding the questions mentioned in subsection (4), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features concerned of the market or markets concerned.

(8) For the purposes of this Part a benefit is a relevant customer benefit of a feature or features of a market if—

(a) it is a benefit to customers or future customers in the form of—

(i) lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets to which the feature or features concerned relate); or

(ii) greater innovation in relation to such goods or services; and

(b) the CMA or (as the case may be) the Secretary of State believes that—

(i) the benefit has accrued as a result (whether wholly or partly) of the feature or features concerned or may be expected to accrue within a reasonable period as a result (whether wholly or partly) of that feature or those features; and

(ii) the benefit was, or is, unlikely to accrue without the feature or features concerned.

Variation of market investigation references

135

(1) The CMA or (as the case may be) the appropriate Minister may at any time vary a market investigation reference made by it under section 131 or (as the case may be) by the appropriate Minister under section 132.

(2) The Office of Fair Trading... appropriate Minister shall consult the CMA before varying any such reference made by him.

(3) Subsection (2) shall not apply if the CMA has requested the variation concerned.

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

Investigations and reports on market investigation references

136

(1) The CMA shall prepare and publish a report on a market investigation reference within the period permitted by section 137.

(2) The report shall, in particular, contain—

(a) the decisions of the CMA on the questions which it is required to answer by virtue of section 134;

(aa) any decision of the CMA under section 154A to accept an undertaking partially in lieu of a report;

(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) Where a reference has been made by the appropriate Minister under section 132 the CMA shall, at the same time as the report under this section is published, give it to the appropriate Minister.

(5) Where a reference has been made by the CMA under section 131 or by the appropriate Minister under section 132 in circumstances in which a reference could have been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the CMA shall, at the same time as the report under this section is published, give a copy of it to the relevant sectoral regulator concerned.

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

(7) In this Part “relevant sectoral enactment” means—

(a) in relation to the Director General of Telecommunications, section 50 of the Telecommunications Act 1984 (c. 12);

(b) in relation to the Gas and Electricity Markets Authority, section 36A of the Gas Act 1986 (c. 44) , section 43 of the Electricity Act 1989 or (as the case may be) section 36 of the Energy Act 2023;

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

(e) in relation to the Office of Rail and Road, section 67 of the Railways Act 1993 (c. 43);

(ea) in relation to the Financial Conduct Authority, section 234I of the Financial Services and Markets Act 2000;

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

(g) in relation to the Civil Aviation Authority, section 86 of the Transport Act 2000 (c. 38). or section 60 of the Civil Aviation Act 2012;

(h) in relation to the Office of Communications, sections 370 and 371 of the Communications Act 2003.

(h) in relation to the Northern Ireland Authority for Utility Regulation, Article 46 of the Electricity (Northern Ireland) Order 1992, Article 23 of the Gas (Northern Ireland) Order 1996 or Article 29 of the Water and Sewerage Services (Northern Ireland) Order 2006.

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j) in relation to the Payment Systems Regulator, section 59 of the Financial Services (Banking Reform) Act 2013.

(8) In this Part “relevant sectoral regulator” means the Director General of Telecommunications , the Gas and Electricity Markets Authority, the Water Services Regulation Authority, . . . , the Office of Rail and Road, the Financial Conduct Authority,. . . , the Civil Aviation Authority or the Office of Communications, the Northern Ireland Authority for Utility Regulation ... or the Payment Systems Regulator.

(9) The Secretary of State may by order modify subsection (7) or (8).

(10) In this section “the Payment Systems Regulator” means the body established under section 40 of the Financial Services (Banking Reform) Act 2013.

Time-limits for market investigations and reports

137

(1) The CMA shall prepare and publish its report under section 136 within the period of 18 months beginning with the date of the market investigation reference concerned.

(2) Subsection (1) is subject to section 151(3) and (5).

(2A) The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so.

(2B) An extension under subsection (2A) shall come into force when published under section 172.

(2C) No more than one extension is possible under subsection (2A).

(3) The Secretary of State may by order amend this section so as to alter one or more of the following periods—

(a) the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;

(b) the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.

(4) But no alteration shall be made by virtue of subsection (3) which results in—

(a) the period for the time being mentioned in subsection (1) exceeding 18 months; or

(b) the period for the time being mentioned in subsection (2A) exceeding 6 months.

(5) An order under subsection (3) shall not affect any period of time within which the CMA is under a duty to prepare and publish its report under section 136 in relation to a market investigation reference if the CMA is already under that duty in relation to that reference when the order is made.

(6) Before making an order under subsection (3) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.

(7) References in this Part to the date of a market investigation reference shall be construed as references to the date specified in the reference as the date on which it is made.

Duty to remedy adverse effects

138

(1) Subsection (2) applies where a report of the CMA has been prepared and published under section 136 within the period permitted by section 137 and contains the decision that there is one or more than one adverse effect on competition.

(2) The CMA shall, within the period permitted by section 138A, in relation to each adverse effect on competition, take such action under section 159 or 161 as it considers to be reasonable and practicable—

(a) to remedy, mitigate or prevent the adverse effect on competition concerned; and

(b) to remedy, mitigate or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the adverse effect on competition.

(3) The decisions of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the 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 adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(5) In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

(6) The CMA shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—

(a) no detrimental effect on customers has resulted from the adverse effect on competition; and

(b) the adverse effect on competition is not being remedied, mitigated or prevented.

Chapter 2 — Public interest cases

Intervention notices

Public interest intervention by Secretary of State

139

(A1) This section applies where—

(a) the CMA has published a market study notice in relation to a matter; or

(b) the CMA has begun the process of consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section.

(1) The Secretary of State may, within the permitted period, give a notice to the CMA if the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the matter.

(1A) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (a) of subsection (A1), is the period beginning with the publication of the market study notice and ending with—

(a) the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter;

(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter;

(d) in a case where the period permitted by section 131B for the preparation and publication by the CMA of the market study report in relation to the matter has expired and no such report has been prepared or published, the end of that period.

(1B) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (b) of subsection (A1), is the period beginning with the date on which the CMA begins the process of consultation concerned and ending with—

(a) the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter concerned;

(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter; or

(2) The Secretary of State may, within the permitted period, give a notice to the CMA if—

(a) the CMA is considering whether to accept—

(i) an undertaking in lieu of a reference under section 154A in relation to the matter; or

(ii) an undertaking varying or superseding any such undertaking;

(b) the CMA has published a notice under section 155(1) or (4); and

(c) the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the proposal to accept the undertaking.

(2A) For the purposes of subsection (2), the permitted period is—

(a) where the CMA publishes a notice under section 155(1), the period within which representations may be made in relation to the proposed undertaking (as to which, see section 155(2)(f));

(b) where the CMA publishes a notice under section 155(4), the period within which representations may be made in relation to the proposed modifications to the proposed undertaking (as to which, see section 155(5)(c)).

(3) In this Part “intervention notice” means a notice under subsection (1) or (2).

(4) No more than one intervention notice shall be given under subsection (1) in relation to the same matter.

(4A) An intervention notice shall not be given under subsection (2) in relation to a proposal to accept an undertaking if the proposal relates to a matter in respect of which an intervention notice under subsection (1) has already been given.

(4B) No more than one intervention notice shall be given under subsection (2) in relation to the same proposed undertaking or in relation to proposed undertakings which do not differ from each other in any material respect.

(4C) In this section, a reference to the acceptance of an undertaking shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of this section.

(5) For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 153 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.

(6) Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.

(7) For the purposes of this Part a public interest consideration is finalised if—

(a) it is specified in section 153 otherwise than by virtue of an order under subsection (3) of that section; or

(b) it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (6) of section 181 and within the period mentioned in that subsection.

Intervention notices under section 139(1)

140

(1) An intervention notice under section 139(1) shall state—

(a) the matter to which the market study notice or (as the case may be) the consultation under section 169 concerned relates;

(b) the date of publication of that notice or (as the case may be) on which the process of consultation began;

(d) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.

(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the matter, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(1) and which is in force.

(4) An intervention notice under section 139(1) shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.

(4A) An intervention notice under section 139(1) shall also cease to be in force if—

(a) it mentions a public interest consideration which was not finalised on the giving of the notice or public interest considerations which, at that time, were not finalised;

(b) no other public interest consideration is mentioned in the notice;

(d) the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks; and

(e) the Secretary of State has not, by the end of that period of 24 weeks, made a reference under section 140A in relation to the matter.

(4B) Subsection (4D) applies in a case where—

(a) an intervention notice ceases to be in force in accordance with subsection (4A);

(b) the CMA has, before the time at which the notice ceases to be in force, prepared a market study report in relation to the matter within the period permitted by section 131B(4) and given it to the Secretary of State in accordance with section 140A(3)(b); and

(c) the report contains the decision of the CMA that it should make a reference in relation to the matter concerned under section 131.

(4C) Subsection (4D) also applies in a case where—

(a) an intervention notice ceases to be in force in accordance with subsection (4A); and

(b) the CMA has, before the time at which the notice ceases to be in force—

(i) decided that it should make an ordinary reference or a cross-market reference under section 131 in relation to the matter concerned; and

(ii) given a document containing its decision, the reasons for it and such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision to the Secretary of State in accordance with section 140A(3)(c).

(4D) In a case to which this subsection applies—

(a) the CMA shall, as soon as reasonably practicable, make a reference in relation to the matter under section 131; and

(b) the reference is to be treated for the purposes of this Part as having been made in accordance with the requirements imposed by this Part.

(5) For the purposes of subsection (4) a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter if—

(za) the CMA accepts an undertaking fully in lieu of a reference under section 154A;

(zb) the CMA publishes notice that it has otherwise decided not to make a reference under section 131 in relation to the matter;

(zc) the period permitted for the preparation by the CMA of the market study report in relation to the matter and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3) has expired and no such report has been so prepared or no such action has been taken;

(zd) the Secretary of State makes a reference under section 140A(5) in relation to the matter;

(a) the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired and no such report has been so prepared or no such action has been taken;

(b) the CMA decides under section 145(1) to terminate its investigation;

(c) the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;

(d) the Secretary of State fails to make and publish a decision under subsection (2) of section 146 within the period required by subsection (3) of that section or (as the case may be) fails to make and publish a decision under subsection (2) of section 146A within the period required by subsection (6) of that section;

(e) the Secretary of State decides under section 146(2) that no eligible public interest consideration is relevant or (as the case may be) decides under section 146A(2) to make no finding at all in relation to the matter;

(f) the Secretary of State decides under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

(g) the Secretary of State accepts an undertaking under section 159 or makes an order under section 161; or

(h) the Secretary of State decides to revoke the intervention notice concerned.

(6) For the purposes of subsections (4) and (5) the time when a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter is—

(za) in a case falling within subsection (5)(za), the acceptance of the undertaking concerned;

(zb) in a case falling within subsection (5)(zb), the publication of the notice concerned;

(a) in a case falling within subsection (5)(zc), (a) or (d), the expiry of the period concerned;

(aa) in a case falling within subsection (5)(zd), the making of the reference concerned;

(b) in a case falling within subsection (5)(b), (e), (f) or (h), the making of the decision concerned;

(d) in a case falling within subsection (5)(g), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(6A) In subsection (6)(za) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (5)(za) and (6)(za).

(7) In subsection (6)(d) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action under section 147(2) or (as the case may be) 147A(2) involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (5)(g) and (6)(d).

Questions to be decided by Commission

141

(1) This section applies where the Secretary of State makes a restricted PI reference.

(2) The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(2A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(3) The CMA shall, if it has decided that there is an adverse effect on competition, decide the following additional questions—

(a) whether action should be taken by the Secretary of State under section 147 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;

(b) whether the 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 the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and

(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.

(4) The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148(1))—

(a) whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;

(b) whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and

(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.

(5) In deciding the questions mentioned in subsections (3) and (4), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

(6) In deciding the questions mentioned in subsections (3) and (4), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

Investigations and reports by Commission

142

(1) Where the Secretary of State makes a restricted PI reference or a full PI reference, the CMA shall prepare a report on the reference and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) within the period permitted by section 144.

(2) The report shall, in particular, contain—

(a) the decisions of the CMA on the questions which it is required to answer by virtue of section 141 or (as the case may be) 141A;

(b) its reasons for its decisions; ...

(c) such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions; and

(d) in the case of a report in relation to a full PI reference in respect of which the Secretary of State appointed a public interest expert, a summary of the views of the expert.

(2A) A summary of the views of a public interest expert in a report under this section shall be approved by the expert before action is taken in relation to the report under section 143A(2) or (3).

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

Publication etc. of reports of Commission

143

(A1) This section applies in relation to a report prepared under section 142 in respect of a restricted PI reference.

(1) The CMA shall publish the report if it contains—

(a) the decision of the CMA that there is no adverse effect on competition; or

(b) the decisions of the CMA that there is one or more than one adverse effect on competition but, on the question mentioned in section 141(4)(a) and in relation to each adverse effect on competition, that no action should be taken by it.

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

(3) Where the report contains the decisions of the CMA that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it, the CMA shall give the report to the Secretary of State.

(4) The Secretary of State shall publish, no later than publication of his decision under section 146(2) in relation to the case, a report of the CMA given to him under subsection (3) and not required to be published by virtue of section 148(2).

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

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

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

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

Time-limits for investigations and reports: Part 4

144

(1) The CMA shall, within the period of 18 months beginning with the relevant date, prepare its report under section 142 and publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3).

(1A) For the purposes of subsection (1), the “relevant date” is—

(a) in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference;

(b) in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following—

(i) the date of the appointment of the expert;

(ii) the date on which the Secretary of State gives notice to the CMA that the Secretary of State no longer intends to appoint such an expert;

(iii) the end of the period of 2 months beginning with the date of the reference.

(1B) The CMA may extend, by no more than 6 months, the period within which its report under section 142 is to be prepared and action is to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if it considers that there are special reasons for doing so.

(1C) An extension under subsection (1B) shall come into force when published under section 172.

(1D) No more than one extension is possible under subsection (1B).

(2) The Secretary of State may by order amend —

(a) subsection (1) so as to alter the period of 18 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period;

(b) subsection (1B) so as to alter the period of 6 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period.

(3) No alteration shall be made by virtue of subsection (2) which results in —

(a) the period for the time being mentioned in subsection (1) exceeding 18 months; or

(b) the period for the time being mentioned in subsection (1B) exceeding 6 months.

(4) An order under subsection (2) shall not affect any period of time within which, in relation to a market investigation reference, the CMA is under a duty to prepare its report under section 142 and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if the CMA is already under that duty in relation to that reference when the order is made.

(5) Before making an order under subsection (2) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.

Restrictions where public interest considerations not finalised: Part 4

145

(1) The CMA shall terminate its investigation under section 142 if—

(a) the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;

(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 the intervention notice concerned mentions a public interest consideration which is not finalised on the giving of the notice, the CMA shall not give its report under section 142 to the Secretary of State in accordance with section 143(3) or (as the case may be) 143A(3) unless the period of 24 weeks beginning with the giving of the intervention notice concerned has expired or the public interest consideration concerned has been finalised.

(3) The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which has not been finalised before the giving of the report.

(4) The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.

(5) Subsections (1) to (4) are without prejudice to the power of the CMA to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.

Decision of Secretary of State

146

(1) Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a restricted PI reference which—

(a) has been prepared under section 142;

(b) contains the decisions that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it; and

(2) The Secretary of State shall decide whether—

(a) any eligible public interest consideration is relevant; or

(b) any eligible public interest considerations are relevant;

to any action which is mentioned in the report by virtue of section 141(4)(a) and (c) and which the CMA should take for the purpose of remedying, mitigating or preventing any adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted or may be expected to result from any adverse effect on competition.

(3) The Secretary of State shall make and publish his decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.

(4) In this section “eligible public interest consideration” means a public interest consideration which—

(a) was mentioned in the intervention notice concerned; and

(b) was not disregarded by the CMA for the purposes of its report under section 142.

Remedial action by Secretary of State

147

(1) Subsection (2) applies where the Secretary of State—

(a) has decided under subsection (2) of section 146 within the period required by subsection (3) of that section that an eligible public interest consideration is relevant as mentioned in subsection (2) of that section or eligible public interest considerations are so relevant; and

(b) has published his decision within the period required by subsection (3) of that section.

(2) The Secretary of State may, in relation to any adverse effect on competition identified in the report concerned, take such action under section 159 or 161 as he considers to be—

(a) reasonable and practicable—

(i) to remedy, mitigate or prevent the adverse effect on competition concerned; or

(ii) to remedy, mitigate or prevent any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and

(b) appropriate in the light of the eligible public interest consideration concerned or (as the case may be) the eligible public interest considerations concerned.

(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to—

(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition; and

(b) the report of the CMA under section 142.

(4) In having regard by virtue of subsection (3) to the report of the CMA under section 142, the Secretary of State shall not challenge the decision of the CMA contained in the report that there is one or more than one adverse effect on competition.

(5) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

(6) The Secretary of State shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—

(a) no detrimental effect on customers has resulted from the adverse effect on competition; and

(b) the adverse effect on competition is not being remedied, mitigated or prevented.

(7) In this section “eligible public interest consideration” has the same meaning as in section 146.

Reversion of the matter to the Commission

148

(1) If—

(a) the Secretary of State fails to make and publish his decision under subsection (2) of section 146 within the period required by subsection (3) of that section; or

(b) the Secretary of State decides that no eligible public interest consideration is relevant as mentioned in subsection (2) of that section;

the CMA shall proceed under section 138 as if the report had been prepared and published under section 136 within the period permitted by section 137.

(2) The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (1).

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

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

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

(6) In relation to proceedings by virtue of subsection (1), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) shall be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141(4).

(7) Where the CMA, in proceeding by virtue of subsection (1), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141(4), it shall not so proceed without the consent of the Secretary of State.

(8) The Secretary of State shall not withhold his consent under subsection (7) unless he believes that the proposed alternative way of proceeding will operate against the public interest.

(9) For the purposes of subsection (8) a proposed alternative way of proceeding will operate against the public interest only if any eligible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.

(10) In deciding whether to withhold his consent under subsection (7), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.

(11) In this section “eligible public interest consideration” has the same meaning as in section 146.

Intervention notices under section 139(2)

149

(1) An intervention notice under section 139(2) shall state—

(a) the proposed undertaking which may be accepted by the CMA;

(b) the notice under section 155(1) or (4);

(c) the public interest consideration or considerations which are, or may be, relevant to the proposal to accept the undertaking; and

(d) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.

(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the proposal to accept the undertaking, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.

(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(2) and which is in force.

(4) An intervention notice under section 139(2) shall come into force when it is given and shall cease to be in force on the occurrence of any of the events mentioned in subsection (5).

(5) The events are—

(a) the acceptance by the CMA with the consent of the Secretary of State of an undertaking which is the same as the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) or which does not differ from it in any material respect;

(b) the decision of the CMA to proceed neither with the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) nor a proposed undertaking which does not differ from it in any material respect; or

Power of veto of Secretary of State

150

(A1) Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking in lieu of a reference under section 154A in relation to the matter concerned.

(1) Where an intervention notice under section 139(2) is in force, the CMA shall not, without the consent of the Secretary of State, accept the proposed undertaking concerned or a proposed undertaking which does not differ from it in any material respect.

(2) The Secretary of State shall withhold his consent if he believes that it is or may be the case that the proposed undertaking will, if accepted, operate against the public interest.

(3) For the purposes of subsection (2) a proposed undertaking will, if accepted, operate against the public interest only if any public interest consideration which is mentioned in the intervention notice concerned and has been finalised, or any public interest considerations which are so mentioned and have been finalised, outweigh the considerations which have led the CMA to propose accepting the undertaking.

(4) In making his decision under subsection (2) the Secretary of State shall accept the CMA's view of what undertakings, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be most appropriate.

(5) Where a public interest consideration which is mentioned in the intervention notice concerned is not finalised on the giving of the notice, the Secretary of State shall not make his decision as to whether to give his consent under this section before—

(a) the end of the period of 24 weeks beginning with the giving of the intervention notice; or

(b) if earlier, the date on which the public interest consideration concerned has been finalised.

(6) Subject to subsections (2) to (5), the Secretary of State shall not withhold his consent under this section.

Other

Further interaction of intervention notices with general procedure

151

(1) Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.

(2) Where the Secretary of State revokes an intervention notice which has been given under section 139(1), at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part).

(3) Where the CMA is proceeding by virtue of subsection (2), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.

(4) Where the CMA terminates its investigation under section 145(1), the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part).

(5) Where the CMA is proceeding by virtue of subsection (4), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.

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

(7) In this section, “working day” means any day other than—

(a) a Saturday or Sunday, or

(b) a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

Certain duties of OFT and Commission

152

(1) The CMA shall, in considering whether to make a reference under section 131, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.

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

(3) The CMA shall bring to the attention of the Secretary of State any representations about exercising his power under section 153(3) which have been made to the CMA.

Specified considerations: Part 4

153

(1) The interests of national security are specified in this section.

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

(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 apply in relation to cases under consideration by the CMA, by the Secretary of State or by the appropriate Minister (other than the Secretary of State acting alone) ... before the making of the order as well as cases under consideration on or after the making of the order.

Chapter 3 — Enforcement

Undertakings in lieu

Undertakings in lieu of market investigation references

154

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

Undertakings in lieu: procedural requirements

155

(1) Before accepting an undertaking under section 154A (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the CMA shall—

(a) publish notice of the proposed undertaking; and

(b) consider any representations made in accordance with the notice and not withdrawn.

(2) A notice under subsection (1) shall state—

(a) that the CMA proposes to accept the undertaking;

(b) the purpose and effect of the undertaking;

(d) any other facts which the CMA considers justify the acceptance of the undertaking;

(e) a means of gaining access to an accurate version of the proposed undertaking at all reasonable times; and

(f) the period (not less than 15 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed undertaking.

(3A) The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.

(4) The CMA shall not accept the undertaking with modifications unless it—

(a) publishes notice of the proposed modifications; and

(b) considers any representations made in accordance with the notice and not withdrawn.

(5) A notice under subsection (4) shall state—

(a) the proposed modifications;

(b) the reasons for them; and

(c) the period (not less than 7 days starting with the date of the publication of the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.

(6) If, after publishing notice under subsection (1) or (4), the CMA decides—

(a) not to accept the undertaking concerned; and

(b) not to proceed by virtue of subsection (8) or (9);

it shall publish notice of that decision.

(7) As soon as practicable after accepting an undertaking to which this section applies, the CMA shall—

(a) serve a copy of the undertaking on any person by whom it is given; and

(b) publish the undertaking.

(8) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—

(a) has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and

(b) considers that the modifications which are now being proposed are not material in any respect.

(9) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—

(a) has already published notice under subsections (1) and (4) in relation to the matter concerned; and

(b) considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).

(10) Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section 154A (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.

Effect of undertakings under section 154

156

(A1) No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the CMA has accepted an undertaking or group of undertakings under section 154A within the previous 12 months;

(b) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and

(c) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.

(1) No ordinary reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the CMA has , instead of making an ordinary reference, accepted an undertaking or group of undertakings in lieu of a reference under section 154A within the previous 12 months; ...

(ab) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and

(b) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.

(2) Subsections (A1) and (1) do not prevent the making of a market investigation reference if—

(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the CMA which was false or misleading in a material respect.

(3) The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section 154A and—

(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.

(4) Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate.

(5) Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report.

(6) Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing—

(a) the CMA’s decision to accept the undertaking,

(b) the reasons for the decision, and

(c) such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision.

(7) For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).

Interim undertakings: Part 4

157

(1) Subsection (2) applies where—

(a) a market investigation reference has been made;

(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and

(2) The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.

(2A) Subsection (2B) applies where—

(a) subsection (1)(a) to (c) applies; and

(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The relevant authority may, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.

(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.

(3) An undertaking under this section—

(a) shall come into force when accepted;

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

(4) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.

(6) In this section and section 158—

“pre-emptive action” means action which might impede the taking of any action under section 138(2) , 147(2) or (as the case may be) 147A(2) in relation to the market investigation reference concerned; and

“the relevant authority” means— in the case of a restricted PI reference or a full PI reference, the Secretary of State; in any other case, the CMA.

Interim orders: Part 4

158

(1) Subsection (2) applies where—

(a) a market investigation reference has been made;

(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and

(2) The relevant authority may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the relevant authority considers would constitute pre-emptive action;

(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.

(2A) Subsection (2B) applies where—

(a) subsection (1)(a) to (c) applies; and

(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The relevant authority may 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.

(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.

(3) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(4) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.

Final undertakings: Part 4

159

(1) The CMA may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.

(2) The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.

(3) An undertaking under this section shall come into force when accepted.

(4) An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.

(5) An undertaking under subsection (1) may be released by the CMA and an undertaking under subsection (2) may be released by the Secretary of State.

(6) The CMA or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.

Order-making power where final undertakings not fulfilled: Part 4

160

(1) Subsection (2) applies where the relevant authority considers that—

(a) an undertaking accepted by the relevant authority under section 159 has not been, is not being or will not be fulfilled; or

(b) in relation to an undertaking accepted by the relevant authority under that section, information which was false or misleading in a material respect was given to a relevant person by the person giving the undertaking before the relevant authority decided to accept the undertaking.

(1A) In subsection (1), a “relevant person” means—

(a) in a case where the relevant authority is the CMA, the CMA;

(b) in a case where the relevant authority is the Secretary of State, the Secretary of State or the CMA.

(2) The relevant authority may, for any of the purposes mentioned in section 138(2), 147(2) or (as the case may be) 147A(2), make an order under this section.

(3) Subsections (3) to (6) of section 138 or 147 or (as the case may be) subsections (3) and (4) of section 147A shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.

(4) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the relevant authority considers appropriate.

(5) An order under this section—

(a) shall come into force at such time as is determined by or under the order;

(b) may contain provision which is different from the provision contained in the undertaking concerned; and

(6) The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.

(7) In this section “the relevant authority” means—

(a) in the case of an undertaking accepted under section 159 by the CMA, the CMA; and

(b) in the case of an undertaking accepted under that section by the Secretary of State, the Secretary of State.

Final orders: Part 4

161

(1) The CMA may, in accordance with section 138, make an order under this section.

(2) The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, make an order under this section.

(3) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the person making it considers appropriate.

(4) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(5) The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises , in accordance with section 162(3) or section 162A(8), that such a variation or revocation is appropriate ....

Undertakings and orders: monitoring, consultation and advice

Duty of OFT to monitor undertakings and orders: Part 4

162

(1) The CMA shall keep under review the carrying out of any enforcement undertaking or any enforcement order.

(2) The CMA shall, in particular, from time to time consider—

(a) whether an enforcement undertaking or enforcement order has been or is being complied with;

(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—

(i) one or more of the parties to it can be released from it; or

(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and

(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.

(3) The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—

(a) any possible variation or release by ...the Secretary of State of an enforcement undertaking accepted by ... him;

(b) any possible new enforcement undertaking to be accepted by ... the Secretary of State so as to supersede another enforcement undertaking given to ... the Secretary of State;

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