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

(b) if that person is not a judge within any of paragraphs (aa) to (ac) of section 12(2) or a member of the panel of chairmen, to appoint himself or some other suitably qualified person to attend the proceedings and advise the remaining members on any questions of law arising.

(4) For the purpose of sub-paragraph (3) a person is “suitably qualified” if he is, or is qualified for appointment as, a member of the panel of chairmen.

Interest

19

(1) Tribunal rules may make provision allowing the Tribunal to order that interest is payable on any sum awarded by the Tribunal or on any fees ordered to be paid under paragraph 20.

(2) That provision may include provision—

(a) as to the circumstances in which such an order may be made;

(b) as to the manner in which, and the periods in respect of which, interest is to be calculated and paid.

Fees

20

(1) Tribunal rules may provide—

(a) for fees to be chargeable in respect of specified costs of proceedings; and

(b) for the amount of such costs to be determined by the Tribunal.

(2) Any sums received in respect of such fees shall be paid into the Consolidated Fund.

Withdrawal of proceedings

21

(1) Tribunal rules may make provision—

(a) preventing a party who has instituted proceedings from withdrawing them without the permission of the Tribunal or, in specified circumstances, the President or the Registrar;

(b) for the Tribunal to grant permission to withdraw proceedings on such conditions as it considers appropriate;

(c) enabling the Tribunal to publish any decision which it would have made in any proceedings, had the proceedings not been withdrawn;

(d) as to the effect of withdrawal of proceedings; and

(e) as to the procedure to be followed if parties to proceedings agree to settle.

(2) Tribunal rules may make, in relation to a claim included in proceedings under section 47B of the 1998 Act, any provision which may be made under sub-paragraph (1) in relation to the whole proceedings.

Interim orders

22

(1) Tribunal rules may provide for the Tribunal to make an order, on an interim basis—

(a) suspending the effect of any decision which is the subject matter of proceedings before it;

(b) in the case of an appeal under section 46 or 47 of the 1998 Act, varying the conditions or obligations attached to an exemption;

(2) Tribunal rules may also make provision giving the Tribunal powers similar to those given to the CMA by section 35 of the 1998 Act.

Miscellaneous

23

(1) Tribunal rules may make provision enabling the Tribunal to decide where to sit for the purposes of, or of any part of, any proceedings before it.

(2) Tribunal rules may make provision enabling the Tribunal to decide that any proceedings before it are to be treated, for purposes connected with—

(a) any appeal from a decision of the Tribunal made in those proceedings; and

(b) any other matter connected with those proceedings,

as proceedings in England and Wales, Scotland or Northern Ireland (regardless of the decision made for the purposes of sub-paragraph (1)).

(3) For the purposes of sub-paragraph (2), Tribunal rules may provide for each claim made or continued on behalf of a person in proceedings under section 47B of the 1998 Act to be treated as separate proceedings.

24

Tribunal rules may make provision—

(a) for a person who is not a party to be joined in any proceedings;

(b) for hearing a person who is not a party where, in any proceedings, it is proposed to make an order or give a direction in relation to that person;

(c) for proceedings to be consolidated on such terms as the Tribunal thinks appropriate in such circumstances as may be specified.

25

Tribunal rules may make provision for the Tribunal to transfer all or any part of a claim made in proceedings under section 47A of the 1998 Act to—

(a) the High Court or the county court in England and Wales or the High Court or a county court in Northern Ireland; or

(b) the Court of Session or a sheriff court in Scotland.

26

Tribunal rules may make provision in connection with the transfer of any proceedings from a court mentioned in paragraph 25 to the Tribunal under section 16.

SCHEDULE 5

1

Part 1 of the 1998 Act is amended as follows.

2

In section 46 (appealable decisions)—

(a) in subsections (1) and (2), for “the Competition Commission” there is substituted “ the Tribunal ”;

(b) in subsection (3) (in the full-out words), after “other decision” there is inserted “ under this Part ”;

3

Section 48 (appeal tribunals) shall cease to have effect.

4

For section 49 there is substituted—

(49) (1) An appeal lies to the appropriate court— (a) from a decision of the Tribunal as to the amount of a penalty under section 36; (b) from a decision of the Tribunal as to the award of damages or other sum in respect of a claim made in proceedings under section 47A or included in proceedings under section 47B (other than a decision on costs or expenses) or as to the amount of any such damages or other sum; and (c) on a point of law arising from any other decision of the Tribunal on an appeal under section 46 or 47. (2) An appeal under this section— (a) may be brought by a party to the proceedings before the Tribunal or by a person who has a sufficient interest in the matter; and (b) requires the permission of the Tribunal or the appropriate court. (3) In this section “the appropriate court” means the Court of Appeal or, in the case of an appeal from Tribunal proceedings in Scotland, the Court of Session.

5

In section 58(1) (findings of fact by director)—

(a) in paragraph (a), after “appeal” there is inserted “ under section 46 or 47 ”; and

(b) in paragraph (b), for “an appeal tribunal” there is substituted “ the Tribunal ”.

6

In section 59(1) (interpretation of Part 1)—

(a) the definition of “appeal tribunal” shall cease to have effect;

(b) after the definition of “the Treaty” there is inserted—

“the Tribunal” means the Competition Appeal Tribunal; “Tribunal rules” means rules under section 15 of the Enterprise Act 2002.

7

(1) Schedule 7 (the Competition Commission) is amended as follows.

(2) In paragraph 1 (interpretation)—

(a) the definitions of “appeal panel member” and “the President” shall cease to have effect; and

(b) in the definition of “general functions”, paragraph (a) and the word “or” after it shall cease to have effect.

(3) In paragraph 2 (membership), sub-paragraphs (1)(a), (3)(a) and (4) shall cease to have effect.

(4) Paragraph 4 (the President) shall cease to have effect.

(5) In paragraph 5 (the Council)—

(a) sub-paragraph (2)(b), and

(b) in sub-paragraph (3), the words “and paragraph 5 of Schedule 8”,

shall cease to have effect.

(6) Part 3 (appeals) shall cease to have effect.

8

(1) Schedule 8 (appeals) is amended as follows.

(2) Paragraph 1 shall cease to have effect.

(3) In paragraph 2 (general procedure for appeals under Part 1)—

(a) in sub-paragraph (1), for the words from “Competition” to “Commission” (in the second place it appears) there is substituted “ Tribunal under section 46 or 47 must be made by sending a notice of appeal to it ”;

(b) in sub-paragraph (3), for “tribunal” there is substituted “ Tribunal ”; and

(4) In this paragraph references to the Tribunal are to the Tribunal as constituted (in accordance with section 14 of the Enterprise Act 2002) for the purposes of the proceedings in question. (5) Nothing in this paragraph restricts the power under section 15 of the Enterprise Act 2002 (Tribunal rules) to make provision as to the manner of instituting proceedings before the Tribunal.

(4) In paragraph 3, for “tribunal” (in each place) there is substituted “ Tribunal ”.

(5) Paragraphs 4 to 14 shall cease to have effect.

SCHEDULE 6

SCHEDULE 7

Pre-emptive undertakings and orders

1

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

2

(1) Sub-paragraph (2) applies where an intervention notice or special intervention notice is in force.

(2) The Secretary of State or the CMA may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the Secretary of State or (as the case may be) 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.

(2A) Sub-paragraph (2B) applies where—

(a) an intervention notice or special intervention notice is in force, and

(b) the Secretary of State or the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The Secretary of State or (as the case may be) 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 sub-paragraph (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 Secretary of State or (as the case may be) the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this paragraph by the Secretary of State or (as the case may be) the CMA.

(3) Sub-paragraph (4) applies where an intervention notice is in force.

(4) The Secretary of State ... may, for the purpose of preventing pre-emptive action, adopt an order made by the CMA under section 72 if the order is still in force when the Secretary of State ... adopts it.

(5) An order adopted under sub-paragraph (4)—

(a) shall continue in force, in accordance with its terms, when adopted; and

(b) may be varied or revoked by an order under this paragraph.

(6) Any other order under this paragraph—

(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.

(7) References in this Part to orders under this paragraph shall, unless the context otherwise requires, include references to orders adopted under this paragraph; and references to the making of orders under this paragraph shall be construed accordingly.

(8) An order which is in force under this paragraph in relation to a reference or possible reference under section 45 or (as the case may be) 62 shall cease to be in force if an undertaking under paragraph ... 3 comes into force in relation to that reference.

(9) An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force when the intervention notice concerned or (as the case may be) special intervention notice concerned ceases to be in force.

(10) No order shall be made by the Secretary of State or the CMA under this paragraph before the making of a reference under section 45 or (as the case may be) 62 unless—

(a) the Secretary of State or (as the case may be) 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; or

(b) the order relates to a special merger situation which has been, or may have been, created.

(11) The Secretary of State or (as the case may be) the CMA shall, as soon as reasonably practicable, consider any representations received by that person in relation to varying or revoking an order under this paragraph.

(12) In this paragraph “pre-emptive action” means action which might prejudice the reference or possible reference concerned under section 45 or (as the case may be) 62 or impede the taking of any action under this Part which may be justified by the Secretary of State's decisions on the reference.

Undertakings in lieu of reference under section 45 or 62

3

(1) Sub-paragraph (2) applies if the Secretary of State has power to make a reference to the Commission under section 45 or 62 and otherwise intends to make such a reference.

(2) The Secretary of State may, instead of making such a reference and for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have or may have resulted, or which may be expected to result, from the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned, accept from such of the parties concerned as he considers appropriate undertakings to take such action as he considers appropriate.

(3) In proceeding under sub-paragraph (2), the Secretary of State shall, in particular—

(a) accept the decisions of the CMA included in its report under section 44 so far as they relate to the matters mentioned in subsections (4) and (5) of that section; or

(b) (as the case may be) accept the decisions of the CMA included in its report under section 61 so far as they relate to the matters mentioned in subsections (3)(a) and (4) of that section.

(4) In proceeding under sub-paragraph (2) in relation to an anti-competitive outcome, 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.

(5) No undertaking shall be accepted by the Secretary of State under this paragraph in connection with a possible reference under section 45 if a public interest consideration mentioned in the intervention notice concerned has not been finalised and the period of 24 weeks beginning with the giving of that notice has not expired.

(6) The Secretary of State may delay making a decision as to whether to accept any such undertaking (and any related decision as to whether to make a reference under section 45) if he considers that there is a realistic prospect of the public interest consideration being finalised within the period of 24 weeks beginning with the giving of the intervention notice concerned.

(7) A delay under sub-paragraph (6) shall not extend beyond—

(a) the time when the public interest consideration is finalised; or

(b) if earlier, the expiry of the period of 24 weeks mentioned in that sub-paragraph.

(8) An undertaking under this paragraph—

(a) shall come into force when accepted;

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

(9) An undertaking under this paragraph which is in force in relation to a relevant merger situation or (as the case may be) a special merger situation shall cease to be in force if an order comes into force under paragraph 5 or 6 in relation to that undertaking.

(10) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or releasing an undertaking under this section.

(11) In sub-paragraphs (8) and (10), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

4

(1) The relevant authority shall not make a reference under section 22, 33 , 45, 68B or 68C in relation to the creation of a relevant merger situation or (as the case may be) a reference under section 62 in relation to the creation of a special merger situation if—

(a) the Secretary of State has accepted an undertaking or group of undertakings under paragraph 3; and

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

(2) In sub-paragraph (1) “the 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 or 62, the Secretary of State.

(3) Sub-paragraph (1) does not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the Secretary of State or the CMA or made public before any undertaking concerned was accepted.

(4) For the purposes of sub-paragraph (3) 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.

(5) In sub-paragraph (3) “made public” means so publicised as to be generally known or readily ascertainable.

5

(1) Sub-paragraph (2) applies where the Secretary of State considers that—

(a) an undertaking accepted ... under paragraph 3 has not been, is not being or will not be fulfilled; or

(b) in relation to an undertaking accepted ... under that paragraph, information which was false or misleading in a material respect was given to the Secretary of State or the CMA by the person giving the undertaking before he decided to accept the undertaking.

(2) The Secretary of State may, for any of the purposes mentioned in paragraph 3(2), make an order under this paragraph.

(3) Sub-paragraphs (3) and (4) of paragraph 3 shall apply for the purposes of sub-paragraph (2) above as they apply for the purposes of sub-paragraph (2) of that paragraph.

(4) An order under this paragraph may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(5) An order under this paragraph

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

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

(6) No order shall be varied or revoked under this paragraph unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.

(7) In this paragraph, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

6

(1) Sub-paragraph (2) applies where—

(a) the Secretary of State has the power to make an order under paragraph 5 in relation to a particular undertaking and intends to make such an order; or

(b) the Secretary of State has the power to make an order under paragraph 10 in relation to a particular undertaking and intends to make such an order.

(2) The Secretary of State may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this paragraph.

(3) No order shall be made under sub-paragraph (2) unless the Secretary of State has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under paragraph 5 or (as the case may be) 10 is in progress or in contemplation.

(4) An order under sub-paragraph (2) may—

(a) prohibit or restrict the doing of things which the Secretary of State considers would prejudice the making of the order under paragraph 5 or 10;

(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 paragraph shall come into force at such time as is determined by or under the order.

(6) An order under this paragraph 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 paragraph 5 or (as the case may be) 10 in relation to the undertaking concerned; or

(b) the making of the decision not to proceed with such an order.

(7) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or revoking an order under this paragraph.

(8) In this paragraph, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

Statutory restrictions following reference under section 45 or 62

7

(1) Sub-paragraphs (2) and (3) apply where—

(a) a reference has been made under section 45(2) or (3) or 62(2) but not finally determined; and

(b) no orders under paragraph 2 are in force in relation to the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(2) No relevant person shall, without the consent of the Secretary of State—

(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 Secretary of State, assist in any of the activities mentioned in paragraphs (a) to (c) of sub-paragraph (2).

(4) The prohibitions in sub-paragraphs (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 Secretary of State under sub-paragraph (2) or (3)—

(a) may be general or specific;

(b) may be revoked by the Secretary of State; and

(c) shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

(6) Paragraph (c) of sub-paragraph (5) shall not apply if the Secretary of State considers that publication is not necessary for the purpose mentioned in that paragraph.

(7) Sub-paragraphs (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) For the purpose of this paragraph a reference under section 45(2) or (3) is finally determined if—

(a) the time within which the CMA is to prepare a report under section 50 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(b) the CMA decides to cancel the reference under section 53(1);

(c) the time within which the Secretary of State is to make and publish a decision under section 54(2) has expired and no such decision has been made and published;

(d) the Secretary of State decides under section 54(2) to make no finding at all in the matter;

(e) the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;

(f) the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

(g) the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(9) For the purpose of this paragraph a reference under section 62(2) is finally determined if—

(a) the time within which the CMA is to prepare a report under section 65 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(b) 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;

(c) the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;

(d) 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 this Schedule nor to make an order under paragraph 11 of this Schedule; or

(e) 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 this Schedule or makes an order under paragraph 11 of this Schedule.

(10) For the purposes of this paragraph the time when a reference under section 45(2) or (3) or (as the case may be) 62(2) is finally determined is—

(a) in a case falling within sub-paragraph (8)(a) or (c) or (as the case may be) (9)(a) or (b), the expiry of the time concerned;

(b) in a case falling within sub-paragraph (8)(b), (d) or (e) or (as the case may be) (9)(c), the making of the decision concerned;

(c) in a case falling within sub-paragraph (8)(f) or (as the case may be) (9)(d), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

(d) in a case falling within sub-paragraph (8)(g) or (as the case may be) (9)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(11) In this paragraph “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

8

(1) Sub-paragraph (2) applies where—

(a) a reference has been made under section 45(4) or (5) or 62(3); and

(b) no orders under paragraph 2 are in force in relation to the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(2) No relevant person shall, without the consent of the Secretary of State, 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 Secretary of State under sub-paragraph (2)—

(a) may be general or specific;

(b) may be revoked by the Secretary of State; and

(c) shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

(4) Paragraph (c) of sub-paragraph (3) shall not apply if the Secretary of State considers that publication is not necessary for the purpose mentioned in that paragraph.

(5) Sub-paragraph (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 paragraph—

“company” includes any body corporate;

“relevant period” means the period beginning with the publication of the decision of the Secretary of State to make 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.

(7) For the purposes of the definition of “relevant period” in sub-paragraph (6), a reference under section 45(4) or (5) is finally determined if—

(a) the CMA cancels the reference under section 48(1) or 53(1);

(b) the time within which the CMA is to prepare a report under section 50 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(c) the time within which the Secretary of State is to make and publish a decision under section 54(2) has expired and no such decision has been made and published;

(d) the Secretary of State decides under section 54(2) to make no finding at all in the matter;

(e) the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;

(f) the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

(g) the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(8) For the purposes of the definition of “relevant period” in sub-paragraph (6), a reference under section 62(3) is finally determined if—

(a) the CMA cancels the reference under section 64(1);

(b) the time within which the CMA is to prepare a report under section 65 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(c) 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;

(d) the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;

(e) 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 this Schedule nor to make an order under paragraph 11 of this Schedule; or

(f) 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 this Schedule or makes an order under paragraph 11 of this Schedule.

(9) For the purposes of the definition of “relevant period” in sub-paragraph (6) above, the time when a reference under section 45(4) or (5) or (as the case may be) 62(3) is finally determined is—

(a) in a case falling within sub-paragraph (7)(a), (d) or (e) or (as the case may be) (8)(a) or (d), the making of the decision concerned;

(b) in a case falling within sub-paragraph (7)(b) or (c) or (as the case may be) (8)(b) or (c), the expiry of the time concerned;

(c) in a case falling within sub-paragraph (7)(f) or (as the case may be) (8)(e), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

(d) in a case falling within sub-paragraph (7)(g) or (as the case may be) (8)(f), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(10) Section 79 shall apply for the purposes of paragraph 7 and this paragraph in relation to a reference under section 45 or 62 as it applies for the purposes of sections 77 and 78 in relation to a reference under section 22 or 33.

(11) In its application by virtue of sub-paragraph (10) section 79 shall have effect as if—

(a) subsections (1) and (2) were omitted; and

(b) for the reference in subsection (4) to the CMA there were substituted a reference to the Secretary of State.

Final undertakings and orders

9

(1) The Secretary of State may, in accordance with section 55 or (as the case may be) 66(5) to (7), accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.

(2) An undertaking under this paragraph—

(a) shall come into force when accepted;

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

(3) An undertaking which is in force under this paragraph in relation to a reference under section 45 or 62 shall cease to be in force if an order under paragraph 6(1)(b) or 10 comes into force in relation to the subject-matter of the undertaking.

(4) No undertaking shall be accepted under this paragraph in relation to a reference under section 45 or 62 if an order has been made under—

(a) paragraph 6(1)(b) or 10 in relation to the subject-matter of the undertaking; or

(b) paragraph 11 in relation to that reference.

(5) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or releasing an undertaking under this section.

10

(1) Sub-paragraph (2) applies where the Secretary of State considers that—

(a) an undertaking accepted by him under paragraph 9 has not been, is not being or will not be fulfilled; or

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

(2) The Secretary of State may, for any purpose mentioned in section 55(2) or (as the case may be) 66(6), make an order under this paragraph.

(3) Subsections (3) and (4) of section 55 or (as the case may be) subsection (7) of section 66 shall apply for the purposes of sub-paragraph (2) above as they or it applies for the purposes of section 55(2) or (as the case may be) 66(6).

(4) An order under this paragraph may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(5) An order under this paragraph—

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

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

(6) No order shall be varied or revoked under this paragraph unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.

11

(1) The Secretary of State may, in accordance with section 55 or (as the case may be) 66(5) to (7), make an order under this paragraph.

(2) An order under this paragraph may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(3) An order under this paragraph shall come into force at such time as is determined by or under the order.

(4) No order shall be made under this paragraph in relation to a reference under section 45 or (as the case may be) 62 if an undertaking has been accepted under paragraph 9 in relation to that reference.

(5) No order shall be varied or revoked under this paragraph unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.

SCHEDULE 8

Introductory

1

This Schedule applies in relation to such orders, and to such extent, as is provided by this Part and Part 4 and any other enactment; and references in this Schedule to an order shall be construed accordingly.

General restrictions on conduct

2

(1) An order may—

(a) prohibit the making or performance of an agreement;

(b) require any party to an agreement to terminate the agreement.

(2) An order made by virtue of sub-paragraph (1) shall not—

(a) prohibit the making or performance of; or

(b) require any person to terminate,

an agreement so far as, if made, the agreement would relate, or (as the case may be) so far as the agreement relates, to the terms and conditions of employment of any workers or to the physical conditions in which any workers are required to work.

3

(1) An order may prohibit the withholding from any person of—

(a) any goods or services;

(b) any orders for any such goods or services.

(2) References in sub-paragraph (1) to withholding include references to—

(a) agreeing or threatening to withhold; and

(b) procuring others to withhold or to agree or threaten to withhold.

4

An order may prohibit requiring as a condition of the supply of goods or services to any person—

(a) the buying of any goods;

(b) the making of any payment in respect of services other than the goods or services supplied;

(c) the doing of any other such matter or the refraining from doing anything mentioned in paragraph (a) or (b) or any other such matter.

5

An order may prohibit—

(a) discrimination between persons in the prices charged for goods or services;

(b) anything which the relevant authority considers to be such discrimination;

(c) procuring others to do anything which is such discrimination or which the relevant authority considers to be such discrimination.

6

An order may prohibit—

(a) giving, or agreeing to give in other ways, any preference in respect of the supply of goods or services or in respect of the giving of orders for goods or services;

(b) giving, or agreeing to give in other ways, anything which the relevant authority considers to be a preference in respect of the supply of goods or services or in respect of the giving of orders for goods or services;

7

An order may prohibit—

(a) charging, for goods or services supplied, prices differing from those in any published list or notification;

(b) doing anything which the relevant authority considers to be charging such prices.

8

(1) An order may regulate the prices to be charged for any goods or services.

(2) No order shall be made by virtue of sub-paragraph (1) unless the relevant report in relation to the matter concerned identifies the prices charged for the goods or services as requiring remedial action.

(3) In this paragraph “the relevant report” means the report of the CMA which is required by the enactment concerned before an order can be made under this Schedule.

9

An order may prohibit the exercise of any right to vote exercisable by virtue of the holding of any shares, stock or securities.

General obligations to be performed

10

(1) An order may require a person to supply goods or services or to do anything which the relevant authority considers appropriate to facilitate the provision of goods or services.

(2) An order may require a person who is supplying, or is to supply, goods or services to supply such goods or services to a particular standard or in a particular manner or to do anything which the relevant authority considers appropriate to facilitate the provision of such goods or services to that standard or in that manner.

11

An order may require any activities to be carried on separately from any other activities.

Acquisitions and divisions

12

(1) An order may prohibit or restrict—

(a) the acquisition by any person of the whole or part of the undertaking or assets of another person’s business;

(b) the doing of anything which will or may result in two or more bodies corporate becoming interconnected bodies corporate.

(2) An order may require that if—

(a) an acquisition of the kind mentioned in sub-paragraph (1)(a) is made; or

(b) anything is done which results in two or more bodies corporate becoming interconnected bodies corporate;

the persons concerned or any of them shall observe any prohibitions or restrictions imposed by or under the order.

(3) This paragraph shall also apply to any result consisting in two or more enterprises ceasing to be distinct enterprises (other than any result consisting in two or more bodies corporate becoming interconnected bodies corporate).

13

(1) An order may provide for—

(a) the division of any business (whether by the sale of any part of the undertaking or assets or otherwise);

(b) the division of any group of interconnected bodies corporate.

(2) For the purposes of sub-paragraph (1)(a) all the activities carried on by way of business by any one person or by any two or more interconnected bodies corporate may be treated as a single business.

(3) An order made by virtue of this paragraph may contain such provision as the relevant authority considers appropriate to effect or take account of the division, including, in particular, provision as to—

(a) the transfer or creation of property, rights, liabilities or obligations;

(b) the number of persons to whom the property, rights, liabilities or obligations are to be transferred or in whom they are to be vested;

(d) the adjustment of contracts (whether by discharge or reduction of any liability or obligation or otherwise);

(e) the creation, allotment, surrender or cancellation of any shares, stock or securities;

(f) the formation or winding up of any company or other body of persons corporate or unincorporate;

(g) the amendment of the articles or other instruments regulating any such company or other body of persons;

(h) the extent to which, and the circumstances in which, provisions of the order affecting a company or other body of persons corporate or unincorporate in its share capital, constitution or other matters may be altered by the company or other body of persons concerned;

(i) the registration of the order under any enactment by a company or other body of persons corporate or unincorporate which is affected by it as mentioned in paragraph (h);

(j) the continuation, with any necessary change of parties, of any legal proceedings;

(k) the approval by the relevant authority or another person of anything required by virtue of the order to be done or of any person to whom anything is to be transferred, or in whom anything is to be vested, by virtue of the order; or

(l) the appointment of trustees or other persons to do anything on behalf of another person which is required of that person by virtue of the order or to monitor the doing by that person of any such thing.

14

The references in paragraph 13 to the division of a business as mentioned in sub-paragraph (1)(a) of that paragraph shall, in the case of an order under section 75, 83, 84, 160 or 161, or an order under paragraph 5, 10 or 11 of Schedule 7, be construed as including references to the separation, by the sale of any part of any undertaking or assets concerned or other means, of enterprises which are under common control (within the meaning of section 26) otherwise than by reason of their being enterprises of interconnected bodies corporate.

Supply and publication of information

15

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

16

An order may prohibit any person from notifying (whether by publication or otherwise) to persons supplying goods or services prices recommended or suggested as appropriate to be charged by those persons for those goods or services.

17

(1) An order may require a person supplying goods or services to publish or otherwise notify —

(a) accounting information in relation to the supply of the goods or services;

(b) information in relation to the quantities of goods or services supplied;

(d) information in relation to prices of the goods or services supplied;

(e) such other information in relation to the goods or services supplied as the relevant authority considers appropriate.

(1A) An order may prohibit the publication or other notification of information falling within sub-paragraph (1)(a) to (e) by a person supplying goods or services.

(2) In sub-paragraph (1) “accounting information”, in relation to a supply of goods or services, means information as to—

(a) the costs of the supply, including fixed costs and overheads;

(b) the manner in which fixed costs and overheads are calculated and apportioned for accounting purposes of the supplier; and

18

An order made by virtue of paragraph ... 17 may provide for the manner in which information is to be published or otherwise notified.

19

An order may—

(a) require any person to supply information to the relevant authority;

(b) where the CMA is not the relevant authority, require any person to supply information to the CMA;

(c) provide for the publication, by the person who has received information by virtue of paragraph (a) or (b), of that information.

National security

20

(1) An order may make such provision as the person making the order considers to be appropriate in the interests of national security ... .

(2) Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

Special administration regimes

21

(1) An order, as well as making provision in relation to all cases to which it may extend, may make provision in relation to—

(a) those cases subject to specified exceptions; or

(b) any particular case or class of case.

(2) An order may, in relation to the cases in relation to which it applies, make the full provision which may be made by it or any less provision (whether by way of exception or otherwise).

(3) An order may make provision for matters to be determined under the order.

(4) An order may—

(a) make different provision for different cases or classes of case or different purposes;

(b) make such transitional, transitory or saving provision as the person making it considers appropriate.

22

(1) An order which may prohibit the doing of anything (or the refraining from doing anything) may in particular by virtue of paragraph 21(2) prohibit the doing of that thing (or the refraining from doing of it) except to such extent and in such circumstances as may be provided by or under the order.

(2) Any such order may, in particular, prohibit the doing of that thing (or the refraining from doing of it)—

(a) without the agreement of the relevant authority or another person; or

(b) by or in relation to a person who has not been approved by the relevant authority or another person.

Interpretation

23

References in this Schedule to the notification of prices or other information are not limited to the notification in writing of prices or other information.

24

In this Schedule “the relevant authority” means—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in the case of an order to be made by the CMA, the CMA; ...

(d) in the case of an order to be made by the Chancellor of the Duchy of Lancaster, the Chancellor of the Duchy of Lancaster.

SCHEDULE 9

Part 1 — Power of enforcement orders to amend licence conditions etc.

Telecommunications Act 1984 (c. 12)

1

Airports Act 1986 (c. 31)

2

(1) Section 54 of the Airports Act 1986 (modification of certain conditions in force under Part 4 of that Act) shall be amended as follows.

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

(3) Subsection (3) shall cease to have effect.

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

3

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

Gas Act 1986 (c. 44)

4

(1) Section 27 of the Gas Act 1986 (modification of licence conditions by order) shall be amended as follows.

(2) For subsection (1) there shall be substituted—

(1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of— (a) the conditions of a particular licence; or (b) the standard conditions of licences under section 7 above, licences under subsection (1) of section 7A above or licences under subsection (2) of that section, to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (1ZA) In subsection (1) above “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to— (i) activities authorised or regulated by a licence; or (ii) the storage of gas on terms which have been determined by the holder of a licence under section 7 above, or could have been determined by the holder if he had thought fit or had been required to determine them by or under a condition of the licence.

(3) In subsection (2)—

(a) for the words “Secretary of State” there shall be substituted “ relevant authority ”;

(b) for the words “section, he” there shall be substituted “ section, the relevant authority ”; and

(4) Subsections (3) and (4) shall cease to have effect.

(5) In subsection (5)—

(a) for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

(b) for the words “he”, in both places where they appear, there shall be substituted “ the relevant authority ”.

(6) For subsection (6) there shall be substituted—

(6) Expressions used in subsection (1ZA) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.

Electricity Act 1989 (c. 29)

5

(1) Section 15 of the Electricity Act 1989 (modification of licence conditions by order) shall be amended as follows.

(2) For subsections (1) and (2) there shall be substituted—

(1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In subsection (1) above “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.

(3) For subsection (2B) there shall be substituted—

(2B) Where the relevant authority modifies under subsection (1) the standard conditions of licences of any type, the relevant authority— (a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and (b) may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of any licence of that type granted before that time.

(4) In subsection (2C)—

(a) for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

(b) for the words “he”, in both places where they appear, there shall be substituted “the relevant authority”.

(5) For subsection (3) there shall be substituted—

(3) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.

Broadcasting Act 1990 (c. 42)

6

For section 193 of the Broadcasting Act 1990 (modification of networking arrangements in consequence of reports under competition legislation) there shall be substituted—

(193) (1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of any networking arrangements to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In subsection (1) “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the provision of programmes for broadcasting in regional Channel 3 services; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the provision of such programmes; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the provision of programmes for broadcasting in regional Channel 3 services. (3) Expressions used in subsection (2) and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part. (4) In this section — - “networking arrangements” means any such arrangements as are mentioned in section 39(1) above; and - “regional Channel 3 service” has the meaning given by section 14(6) above.

Water Industry Act 1991 (c. 56)

7

(1) Section 17 of the Water Industry Act 1991 (modification of conditions of appointment by order) shall be amended as follows.

(2) For subsections (1) and (2) there shall be substituted—

(1) Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may, subject to subsection (3), also provide for the modification of the conditions of a company’s appointment under this Chapter to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In subsection (1) above “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the 2002 Act where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was carried on by a relevant undertaker; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is carried on by a relevant undertaker; or (b) an order under section 160 or 161 of the 2002 Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition is— (i) the structure or an aspect of the structure of a market for the supply of goods or services by a relevant undertaker; or (ii) the conduct of a relevant undertaker or of customers of a relevant undertaker.

(3) For subsection (4) there shall be substituted—

(4) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the 2002 Act have the same meanings in that subsection as in that Part.

8

In section 36(1) of that Act (interpretation of Part 2 of that Act)—

(a) the definition of “the 1973 Act”, and the word “and” at the end of the definition, shall cease to have effect; and

(b) at the end of the subsection there shall be inserted—

“the 2002 Act” means the Enterprise Act 2002;

Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))

9

For article 18 of the Electricity (Northern Ireland) Order 1992 (modification of licence conditions by order) there shall be substituted—

(18) (1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In paragraph (1) “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission or supply of electricity. (3) In paragraph (2) expressions which are also used in Part 3 or, as the case may be, Part 4 of the Enterprise Act 2002 have the same meanings as in that Part of that Act.

Railways Act 1993 (c. 43)

10

(1) Section 16 of the Railways Act 1993 (modification of licence conditions by order) shall be amended as follows.

(2) For subsections (1) and (2) there shall be substituted—

(1) Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In subsection (1) above “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the supply of services relating to railways; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the supply of services relating to railways; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the supply of services relating to railways.

(3) In subsection (3) for the words “Secretary of State” there shall be substituted “ relevant authority ”.

(4) For subsection (5) there shall be substituted—

(5) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part; and in subsection (2) above “services relating to railways” has the same meaning as in section 67(2A) of this Act.

Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))

11

(1) Article 45 of the Airports (Northern Ireland) Order 1994 (modification of certain conditions in force under Part 4 of that Order) shall be amended as follows.

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

(3) Paragraph (3) shall cease to have effect.

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

12

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

Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))

13

(1) Article 18 of the Gas (Northern Ireland) Order 1996 (modification of licence conditions by order) shall be amended as follows.

(2) For paragraph (1) there shall be substituted—

(1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of— (a) the conditions of a particular licence; or (b) the standard conditions of licences under sub-paragraph (a), (b) or (c) of Article 8(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (1A) In paragraph (1) “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to activities authorised or regulated by a licence.

(3) In paragraph (2)—

(a) for the words “Secretary of State modifies under paragraph (1)(ii)” there shall be substituted “ relevant authority modifies under paragraph (1)(b) ”; and

(b) for the word “he”, in both places where it appears, there shall be substituted “ the relevant authority ”.

(4) Paragraph (3) shall cease to have effect.

(5) In paragraph (4)—

(a) for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

(b) for the word “he”, in both places where it appears, there shall be substituted “ the relevant authority ”.

(6) For paragraph (5) there shall be substituted—

(5) Expressions used in paragraph (1A) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that paragraph as in that Part.

Postal Services Act 2000 (c. 26)

14

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

Transport Act 2000 (c. 38)

15

(1) Section 19 of the Transport Act 2000 (modification of licence conditions by order) shall be amended as follows.

(2) For subsections (1) to (4) there shall be substituted—

(1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. (2) In subsection (1) above “relevant order” means— (a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the 2002 Act where— (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the provision of air traffic services; or (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the provision of air traffic services; or (b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the provision of air traffic services.

(3) In subsection (5) for the words “Secretary of State” there shall be substituted “ relevant authority ”.

(4) For subsection (6) there shall be substituted—

(6) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the 2002 Act have the same meanings in that subsection as in that Part.

(5) In subsection (7) for the words “1973 Act is the Fair Trading Act 1973” there shall be substituted “ 2002 Act is the Enterprise Act 2002 ”.

Part 2 — Application of Part 4 of this Act to sectoral regulators

Telecommunications Act 1984 (c. 12)

16

Gas Act 1986 (c. 44)

17

(1) Section 36A of the Gas Act 1986 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows.

(2) For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted—

(2) The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the Office of Fair Trading. (2A) This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the carrying on of activities to which this subsection applies. (2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(3) In subsection (4) for the word “(2)” there shall be substituted “ (2A) ”.

(4) For subsection (5) there shall be substituted—

(5) Before the Office of Fair Trading or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other. (5A) Neither the Office of Fair Trading nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5) In subsection (7) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

(6) For subsection (8) there shall be substituted—

(8) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Authority.

(7) Subsection (9) shall cease to have effect.

(8) In subsection (10) for the words “mentioned in subsection (2) or (3) above” there shall be substituted “ exercisable by the Authority by virtue of subsection (2) or (3) above ”.

Electricity Act 1989 (c. 29)

18

(1) Section 43 of the Electricity Act 1989 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows.

(2) For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted—

(2) The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the Office of Fair Trading. (2A) This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the generation, transmission or supply of electricity. (2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(3) For subsection (4) there shall be substituted—

(4) Before the Office of Fair Trading or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other. (4A) Neither the Office of Fair Trading nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(4) In subsection (6)—

(a) for the word “(2)” there shall be substituted “ (2A) ”;

(b) the words from“or paragraph” to “Act 1994” shall cease to have effect; and

(c) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

(5) For subsection (6A) there shall be substituted—

(6A) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Authority.

(6) Subsection (7) shall cease to have effect.

Water Industry Act 1991 (c. 56)

19

(1) Section 31 of the Water Industry Act 1991 (application of monopoly provisions etc. to the Director General of Water Services) shall be amended as follows.

(2) For subsection (2) (monopoly functions to be exercisable concurrently by the Director General of Water Services) there shall be substituted—

(2) The functions to which subsection (2A) below applies shall be concurrent functions of the Director and the OFT. (2A) This subsection applies to the functions of the OFT under Part 4 of the 2002 Act (other than sections 166 and 171) so far as relating to commercial activities connected with the supply of water or the provision of sewerage services.

(3) For subsection (4) there shall be substituted—

(4) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the 2002 Act to the OFT (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(4) For subsections (5) and (6) there shall be substituted—

(5) Before the OFT or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other. (6) Neither the OFT nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5) In subsection (8)—

(a) the words from “or paragraph” to “Act 1994” shall cease to have effect; and

(b) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the 2002 Act ”.

(6) For subsection (8A) there shall be substituted—

(8A) Section 117 of the 2002 Act (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the OFT included references to the Director.

(7) Subsection (9) shall cease to have effect.

Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))

20

(1) Article 46 of the Electricity (Northern Ireland) Order 1992 (application of monopoly provisions etc. to the Director General of Electricity Supply for Northern Ireland) shall be amended as follows.

(2) For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted—

(2) The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the Office of Fair Trading. (2A) This paragraph applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the generation, transmission or supply of electricity. (2B) So far as necessary for the purposes of, or in connection with, paragraphs (2) and (2A), references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(3) For paragraph (4) there shall be substituted—

(4) Before the Office of Fair Trading or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2), it or he shall consult the other. (4A) Neither the Office of Fair Trading nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2) if functions which are so exercisable have been exercised in relation to that matter by the other.

(4) In paragraph (6)—

(a) for the words “paragraph (2)” there shall be substituted “ paragraph (2A) ”;

(b) the words from “or paragraph” to “Act 1994” shall cease to have effect; and

(c) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

(5) For paragraph (6A) there shall be substituted—

(6A) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of paragraph (2) as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Director.

(6) Paragraph (7) shall cease to have effect.

Railways Act 1993 (c. 43)

21

(1) Section 67 of the Railways Act 1993 (application of monopoly provisions etc. to the Rail Regulator) shall be amended as follows.

(2) For subsection (2) (monopoly functions to be exercisable concurrently by the Rail Regulator) there shall be substituted—

(2) The functions to which subsection (2A) below applies shall be concurrent functions of the Regulator and the OFT. (2A) This subsection applies to the functions of the OFT under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to the supply of services relating to railways. (2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the OFT (including references in provisions of that Act applied by that Part) shall be construed as including references to the Regulator (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(3) In subsection (3ZA) for the words “subsection (3)” there shall be substituted “ subsections (2A) and (3) ”.

(4) For subsection (4) there shall be substituted—

(4) Before the OFT or the Regulator first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other. (4A) Neither the OFT nor the Regulator shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5) In subsection (7)—

(a) for the words “on a monopoly reference” there shall be substituted “ under section 136 or 142 of the Enterprise Act 2002 ”;

(b) the words from “was made” to “that it” shall cease to have effect; and

(6) In subsection (8)—

(a) for the word “(2)” there shall be substituted “ (2A) ”;

(b) the words from “or paragraph” to “Act 1994” shall cease to have effect; and

(c) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

(7) For subsection (9) there shall be substituted—

(9) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Regulator by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the OFT included references to the Regulator.

(8) Subsection (10) shall cease to have effect.

Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))

22

(1) Article 23 of the Gas (Northern Ireland) Order 1996 (application of monopoly provisions etc. to the Director General of Gas for Northern Ireland) shall be amended as follows.

(2) For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted—

(2) The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the Office of Fair Trading. (2A) This paragraph applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the conveyance, storage or supply of gas. (2B) So far as necessary for the purposes of, or in connection with, paragraphs (2) and (2A), references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

(3) For paragraph (4) there shall be substituted—

(4) Before the Office of Fair Trading or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2), it or he shall consult the other. (4A) Neither the Office of Fair Trading nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2) if functions which are so exercisable have been exercised in relation to that matter by the other.

(4) In paragraph (6) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

(5) For paragraph (7) there shall be substituted—

(7) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of paragraph (2) as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Director.

(6) Paragraph (8) shall cease to have effect.

(7) In paragraph (9) for the words “mentioned in paragraph (2) or (3)” there shall be substituted “ exercisable by the Director by virtue of paragraph (2) or (3) ”.

Transport Act 2000 (c. 38)

23

(1) Section 85 of the Transport Act 2000 (interpretation of Chapter V) shall be amended as follows.

(2) In subsection (1) for paragraph (a) there shall be substituted—

(a) the 2002 Act is the Enterprise Act 2002;

(3) In subsection (3)—

(a) the words “the 1973 Act or” shall cease to have effect; and

(b) for the words “Act concerned” there shall be substituted “ 1998 Act ”.

24

(1) Section 86 of that Act (functions exercisable by the CAA and the Director) shall be amended as follows.

(2) For subsection (2) there shall be substituted—

(2) This subsection applies to the OFT’s functions under Part 4 of the 2002 Act (other than sections 166 and 171) so far as they relate to the supply of air traffic services.

(3) In subsection (4)(a) for the words from the beginning to “Act” there shall be substituted “ Part 4 of the 2002 Act (except for sections 166 and 171 but including provisions of that Act applied by that Part) ”.

(4) In subsection (7)(a) for the words from the beginning to “Act” there shall be substituted “ Part 4 of the 2002 Act ”.

25

In section 87 of that Act (CAA’s 1973 Act functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.

26

In section 89 of that Act (carrying out functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.

SCHEDULE 10

Requirements for accepting undertakings and making orders

1

Paragraph 2 applies in relation to—

(a) any undertaking under section 73 or 82 or paragraph 3 or 9 of Schedule 7 (other than an undertaking under the enactment concerned which varies an undertaking under that enactment but not in any material respect); and

(b) any order under section 70C, 75, 83 or 84 or paragraph 5, 10 or 11 of Schedule 7 (other than an order under the enactment concerned which is a revoking order of the kind dealt with by paragraphs 6 to 8 below).

2

(1) Before accepting an undertaking to which this paragraph applies or making an order to which this paragraph applies, the CMA or (as the case may be) the Secretary of State (in this Schedule “the relevant authority”) shall—

(a) give notice of the proposed undertaking or (as the case may be) order; and

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

(2) A notice under sub-paragraph (1) shall state—

(a) that the relevant authority proposes to accept the undertaking or (as the case may be) make the order;

(b) the purpose and effect of the undertaking or (as the case may be) order;

(d) any other facts which the relevant authority considers justify the acceptance of the undertaking or (as the case may be) the making of the order;

(e) a means of gaining access to an accurate version of the proposed undertaking or (as the case may be) order at all reasonable times; and

(f) the period (not less than 15 days starting with the date of publication of the notice in the case of an undertaking and not less than 30 days starting with that date in the case of an order) within which representations may be made in relation to the proposed undertaking or (as the case may be) order.

(3) A notice under sub-paragraph (1) shall be given by—

(a) in the case of a proposed order, serving on any person identified in the order as a person on whom a copy of the order should be served a copy of the notice and a copy of the proposed order; and

(b) in every case, publishing the notice.

(4) The relevant authority shall not accept the undertaking with modifications or (as the case may be) make the order with modifications unless the relevant authority—

(a) gives notice of the proposed modifications; and

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

(5) A notice under sub-paragraph (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 sub-paragraph (4)) within which representations may be made in relation to the proposed modifications.

(6) A notice under sub-paragraph (4) shall be given by—

(a) in the case of a proposed order, serving a copy of the notice on any person identified in the order as a person on whom a copy of the order should be served; and

(b) in every case, publishing the notice.

3

(1) If, after giving notice under paragraph 2(1) or (4), the relevant authority decides—

(a) not to accept the undertaking concerned or (as the case may be) make the order concerned; and

(b) not to proceed by virtue of paragraph 5;

the relevant authority shall give notice of that decision.

(2) A notice under sub-paragraph (1) shall be given by—

(a) in the case of a proposed order, serving a copy of the notice on any person identified in the order as a person on whom a copy of the order should be served; and

(b) in every case, publishing the notice.

4

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