The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003

Made: 17th June 2003

Coming into force: 20th June 2003

Whereas the Secretary of State laid the draft of this Order before Parliament;

And whereas the said draft as so laid has been approved by a resolution of each House of Parliament;

Now, therefore, the Secretary of State in exercise of the powers conferred on her by sections 68 and 124(2) and (4) of the Enterprise Act 2002 , hereby makes the following Order:

Citation, commencement and interpretation

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• (1) This Order may be cited as the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 and shall come into force on 20th June 2003.

• (2) In this Order—

• “the Act” means the Enterprise Act 2002;

• “a European intervention notice” means a notice given by the Secretary of State to the CMA pursuant to section 67 of the Act;

• “media public interest consideration” means any consideration which, at the time of the giving of the European intervention notice concerned, is specified in section 58(2A) to (2C) of the Act, or in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58 of the Act.

• “public interest consideration” means a consideration which, at the time of the giving of the European intervention notice concerned, is specified in section 58 of the Act, or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.

Determination of a relevant merger situation

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For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, for the purposes of section 68(2)(a) of the Act and this Order, sections 23 to 32 of the Act (read together with section 34 of the Act and any Order made pursuant to that section) shall apply, but subject to the modifications mentioned in Schedule 1.

European intervention notices under section 67 of the Act

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• (1) A European intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined in accordance with paragraphs (2) and (3).

• (2) A matter to which a European intervention notice relates is finally determined if—

• (a) the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under article 4 or (as the case may be) 4A has expired and no such report has been made;

• (b) the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 2 instead of making a reference under article 5;

• (c) the Secretary of State otherwise decides not to make a reference under article 5;

• (d) the CMA cancels such a reference under article 7(1) or article 11(1);

• (e) the time within which the CMA is to prepare a report under article 8 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;

• (f) the time within which the Secretary of State is to make and publish a decision under article 12(2) has expired and no such decision has been made and published;

• (g) the Secretary of State decides under paragraph (2) of article 12 otherwise than as mentioned in paragraph (6) of that article;

• (h) the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article but decides neither to accept an undertaking under paragraph 9 of Schedule 2 nor to make an order under paragraph 11 of that Schedule; or

• (i) the Secretary of State decides under paragraph (2) of article 12 as mentioned in paragraph (6) of that article and accepts an undertaking under paragraph 9 of Schedule 2 or makes an order under paragraph 11 of that Schedule.

• (3) The time when a matter to which a European intervention notice relates is finally determined is—

• (a) in a case falling within paragraph (2)(a), (e) or (f), the expiry of the time concerned;

• (b) in a case falling within paragraph (2)(b), the acceptance of the undertaking or group of undertakings concerned;

• (c) in a case falling within paragraph (2)(c), (d) or (g), the making of the decision concerned;

• (d) in a case falling within paragraph (2)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 2 nor to make an order under paragraph 11 of that Schedule; and

• (e) in a case falling within paragraph (2)(i), the acceptance of the undertakings concerned or (as the case may be) the making of the order concerned.

Initial investigation and report by OFT

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• (1) Paragraph (2) applies where the Secretary of State has given a European intervention notice in relation to a relevant merger situation under section 67 of the Act.

• (2) The CMA shall, within such period as the Secretary of State may require, give a report to the Secretary of State in relation to the case.

• (3) The report shall contain—

• (a) advice from the CMA on the considerations relevant to the making of a reference under section 22 or 33 of the Act which are also relevant to the Secretary of State’s decision as to whether to make a reference under article 5; and

• (b) a summary of any representations about the case which have been received by the CMA and which relate to any public interest consideration mentioned in the European intervention notice concerned (other than a media public interest consideration) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under article 5.

• (4) The report shall include a decision as to whether the CMA believes that it is, or may be, the case that a European relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation.

• (4A) The report may, in particular, contain a summary of any representations about the case which have been received by the CMA and which relate to any media public interest consideration mentioned in the European intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under article 5.

• (5) The report may, in particular, include advice and recommendations on any public interest consideration mentioned in the European intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under article 5.

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

Power of Secretary of State to refer the matter

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• (1) Paragraphs (2) and (3) apply where the Secretary of State—

• (a) has given a European intervention notice in relation to a relevant merger situation; and

• (b) has received a report of the CMA under article 4, and any report of OFCOM which is required by virtue of article 4A, in relation to the matter.

• (2) The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if she believes that it is or may be the case that—

• (a) a European relevant merger situation has been created;

• (b) one or more than one public interest consideration mentioned in the European intervention notice is relevant to a consideration of the European relevant merger situation concerned; and

• (c) taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

• (3) The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if she believes that it is or may be the case that—

• (a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation;

• (b) one or more than one public interest consideration mentioned in the European intervention notice is relevant to a consideration of the European relevant merger situation concerned; and

• (c) taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

• (4) No reference shall be made under this article if the making of the reference is prevented by ... paragraph 4 of Schedule 2.

• (5) The Secretary of State, in deciding whether to make a reference under this article, shall accept the decision of the CMA included in its report under article 4 by virtue of paragraph (4) of that article.

• (6) Where the decision to make a reference under article 5 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the European intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the European intervention notice but which has not been finalised before the end of that period.

• (7) The Secretary of State may, if she believes that there is a realistic prospect of the public interest consideration mentioned in paragraph (6) being finalised within the period of 24 weeks beginning with the giving of the European intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.

• (8) A reference under this article shall, in particular, specify—

• (a) the paragraph of this article under which it is made;

• (b) the date on which it is made; and

• (c) the public interest consideration or considerations mentioned in the European intervention notice concerned which the Secretary of State is not under a duty to disregard by virtue of paragraph (6) and which she believes are or may be relevant to a consideration of the relevant merger situation concerned.

Questions to be decided on references under article 5

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• (1) The CMA shall, on a reference under article 5(2), decide whether a European relevant merger situation has been created.

• (2) The CMA shall, on a reference under article 5(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation.

• (3) If the CMA decides that a European relevant merger situation has been created, or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation, it shall, on a reference under article 5, decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

• (4) The CMA shall, if it has decided on a reference under article 5 that the creation of a European relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions—

• (a) whether action should be taken by the Secretary of State under article 12 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the European relevant merger situation concerned;

• (b) whether the CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the European relevant merger situation concerned; and

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

• (5) In this article “admissible public interest consideration” means any public interest consideration which is specified in the reference under article 5 and which the CMA is not under a duty to disregard.

Cancellation or variation of references under article 5

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• (1) The CMA shall cancel a reference under article 5(3) if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.

• (2) In relation to the question whether a European relevant merger situation has been created or the question whether a European relevant merger situation will be created, a reference under article 5 may be framed so as to require the CMA to exclude from consideration—

• (a) subsection (1) of section 23 of the Act;

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

• (c) one of those subsections if the CMA finds that the other is satisfied.

• (3) In relation to the question whether for the purpose of section 23(2)(b), the share of supply test is or will be met, a reference under article 5 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

• (4) The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article; and, in such cases, references in this Order to references under those enactments shall, so far as may be necessary, be construed accordingly.

• (5) Where by virtue of paragraph (4), the CMA treats a reference made under paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article, paragraphs ... 2, 7 and 8 of Schedule 2, in particular, apply as if the reference had been made under paragraph (3) or (as the case may be) (2) of that article instead of under paragraph (2) or (3) of that article.

• (6) Paragraph (7) applies in relation to any order made under paragraph 2 of Schedule 2 which is in force immediately before the CMA, by virtue of paragraph (4), treats a reference made under paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article.

• (7) The ... order shall, so far as applicable, continue in force as if it were—

• (a) in the case of an ... order which relates to a reference under paragraph (2) of article 5, ... made in relation to a reference made under paragraph (3) of that article; and

• (b) in the case of an ... order which relates to a reference made under paragraph (3) of that article, ... made in relation to a reference made under paragraph (2) of that article;

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

• (8) The Secretary of State may at any time vary a reference under article 5.

• (9) The Secretary of State shall consult the CMA before varying any such reference.

• (10) Paragraph (9) shall not apply if the CMA has requested the variation concerned.

• (11) No variation by the Secretary of State under this article shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by virtue of article 8 within which the report of the CMA under that article is to be prepared and given to the Secretary of State.

Investigations and reports on references under article 5

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• (1) The CMA shall prepare a report on a reference under article 5 and give it to the Secretary of State within the period permitted by article 9.

• (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 article 6;

• (b) its reasons for its decisions; and

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

• (2A) Where the report relates to a reference under article 5 which has been made after a report of OFCOM under article 4A, the CMA shall give a copy of its report (whether or not published) to OFCOM.

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

Time-limits and investigations and reports by Commission

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• (1) The CMA shall prepare its report under article 8 and give it to the Secretary of State under that article within the period of 24 weeks beginning with the date of the reference concerned.

• (2) The CMA may extend, by no more than 8 weeks, the period within which a report under article 8 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.

• (3) The CMA may extend the period within which a report under article 8 is prepared and given to the Secretary of State if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109 of the Act.

• (4) In paragraph (3) “relevant person” means—

• (a) any person carrying on any of the enterprises concerned;

• (b) any person who (whether alone or as a member of a group) owns or has control of any such person; or

• (c) any officer, employee or agent of any person mentioned in sub-paragraph (a) or (b).

• (5) For the purposes of paragraph (4) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

• (6) An extension under paragraph (2) or (3) shall come into force when published in accordance with article 14.

• (7) An extension under paragraph (3) shall continue in force until—