Enterprise Act 2002
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There shall be a body corporate to be known as the Office of Fair Trading (in this Act referred to as “the OFT”).
The functions of the OFT are carried out on behalf of the Crown.
Schedule 1 (which makes further provision about the OFT) has effect.
In managing its affairs the OFT shall have regard, in addition to any relevant general guidance as to the governance of public bodies, to such generally accepted principles of good corporate governance as it is reasonable to regard as applicable to the OFT.
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The functions of the Director General of Fair Trading (in this Act referred to as “the Director”), and his property, rights and liabilities, are transferred to the OFT.
The office of the Director is abolished.
Any enactment, instrument or other document passed or made before the commencement of subsection (1) which refers to the Director shall have effect, so far as necessary for the purposes of or in consequence of anything being transferred, as if any reference to the Director were a reference to the OFT.
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The OFT shall, before each financial year, publish a document (the “annual plan”) containing a statement of its main objectives and priorities for the year.
The OFT shall for the purposes of public consultation publish a document containing proposals for its annual plan at least two months before publishing the annual plan for any year.
The OFT shall lay before Parliament a copy of each document published under subsection (2) and each annual plan.
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The OFT shall, as soon as practicable after the end of each financial year, make to the Secretary of State a report (the “annual report”) on its activities and performance during that year.
The annual report for each year shall include—
a general survey of developments in respect of matters relating to the OFT’s functions;
an assessment of the extent to which the OFT’s main objectives and priorities for the year (as set out in the annual plan) have been met;
a summary of the significant decisions, investigations or other activities made or carried out by the OFT during the year;
a summary of the allocation of the OFT’s financial resources to its various activities during the year; and
an assessment of the OFT’s performance and practices in relation to its enforcement functions.
The OFT shall lay a copy of each annual report before Parliament and arrange for the report to be published.
The OFT may—
prepare other reports in respect of matters relating to any of its functions; and
arrange for any such report to be published.
The CMA has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.
That function is to be carried out with a view to (among other things) ensuring that the CMA has sufficient information to take informed decisions and to carry out its other functions effectively.
In carrying out that function the CMA may carry out, commission or support (financially or otherwise) research.
The CMA has the function of—
making the public aware of the ways in which competition may benefit consumers in, and the economy of, the United Kingdom; and
giving information or advice in respect of matters relating to any of its functions to the public.
In carrying out those functions the CMA may—
publish educational materials or carry out other educational activities; or
support (financially or otherwise) the carrying out by others of such activities or the provision by others of information or advice.
The CMA has the function of— on matters relating to any of its functions to any Minister of the Crown or other public authority (including proposals, information or advice as to any aspect of the law or a proposed change in the law).
making proposals, or
giving other information or advice,
A Minister of the Crown may request the CMA to make proposals or give other information or advice on any matter relating to any of its functions; and the CMA shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.
The CMA may, in particular, carry out the function under subsection (1)(a) by making a proposal in the form of a recommendation to a Minister of the Crown about the potential effect of a proposal for Westminster legislation on competition within any market or markets in the United Kingdom for goods or services.
The CMA must publish such a recommendation in such manner as the CMA considers appropriate for bringing the subject matter of the recommendation to the attention of those likely to be affected by it.
In this section—
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The OFT has the function of promoting good practice in the carrying out of activities which may affect the economic interests of consumers in the United Kingdom.
In carrying out that function the OFT may (without prejudice to the generality of subsection (1)) make arrangements for approving consumer codes and may, in accordance with the arrangements, give its approval to or withdraw its approval from any consumer code.
Any such arrangements must specify the criteria to be applied by the OFT in determining whether to give approval to or withdraw approval from a consumer code.
Any such arrangements may in particular—
specify descriptions of consumer code which may be the subject of an application to the OFT for approval (and any such description may be framed by reference to any feature of a consumer code, including the persons who are, or are to be, subject to the code, the manner in which it is, or is to be, operated and the persons responsible for its operation); and
provide for the use in accordance with the arrangements of an official symbol intended to signify that a consumer code is approved by the OFT.
The OFT shall publish any arrangements under subsection (2) in such manner it considers appropriate.
In this section “consumer code” means a code of practice or other document (however described) intended, with a view to safeguarding or promoting the interests of consumers, to regulate by any means the conduct of persons engaged in the supply of goods or services to consumers (or the conduct of their employees or representatives).
The CMA may not under this Part support a public consumer advice scheme, where that support of a scheme consists of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them.
Section 12 of the Fair Trading Act 1973 (c. 41) (in this Act referred to as “the 1973 Act”) and section 13 of the Competition Act 1980 (c. 21) (powers of Secretary of State to give directions) shall cease to have effect.
The following provisions of the 1973 Act shall cease to have effect—
section 3 and Schedule 2 (which establish, and make provision with respect to, the Consumer Protection Advisory Committee);
sections 13 to 21 (which relate to references made to, and reports of, that Committee); and
section 22 (power of Secretary of State to make orders in pursuance of a report of that Committee).
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any order under section 22 of the 1973 Act which is in force immediately before the commencement of this section;
the continued operation of that section so far as applying to the revocation of any such order.
If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—
repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and
make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.
An order under subsection (3)—
may make transitional or saving provision in connection with any modification made by the order; and
shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
This section applies where a designated consumer body makes a complaint to the CMA that any feature, or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.
The CMA must, within 90 days after the day on which it receives the complaint, publish a response stating how it proposes to deal with the complaint, and in particular—
whether it has decided to take any action, or to take no action, in response to the complaint, and
if it has decided to take action, what action it proposes to take.
The response must state the CMA's reasons for its proposals.
The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.
“Designated consumer body” means a body designated by the Secretary of State by order.
The Secretary of State—
may designate a body only if it appears to him to represent the interests of consumers of any description, and
must publish (and may from time to time vary) other criteria to be applied by him in determining whether to make or revoke a designation.
The CMA —
must issue guidance as to the presentation by the complainant of a reasoned case for the complaint, and
may issue such other guidance as appears to it to be appropriate for the purposes of this section.
An order under this section—
shall be made by statutory instrument, and
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
In this section—
references to a feature of a market in the United Kingdom for goods or services have the same meaning as if contained in Part 4, and
“consumer” means an individual who is a consumer within the meaning of that Part.
There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).
The Tribunal shall consist of—
a person appointed by the Lord Chancellor to preside over the Tribunal (in this Part referred to as “the President”);
members appointed by the Lord Chancellor to form a panel of chairmen; and
such judges as are nominated from time to time by the Lord Chief Justice of England and Wales from the High Court of England and Wales;
members appointed by the Secretary of State to form a panel of ordinary members.
such judges as are nominated from time to time by the Lord President of the Court of Session from the judges of the Court of Session;
such judges as are nominated from time to time by the Lord Chief Justice of Northern Ireland from the High Court in Northern Ireland;
The Tribunal shall have a Registrar appointed by the Secretary of State.
The expenses of the Tribunal shall be paid by the Competition Service.
Schedule 2 (which makes further provision about the Tribunal) has effect.
There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).
The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.
In subsection (2) “support services” includes the provision of staff, accommodation and equipment and any other services which facilitate the carrying out by the Tribunal of its functions.
The activities of the Service are not carried out on behalf of the Crown (and its property is not to be regarded as held on behalf of the Crown).
The Secretary of State shall pay to the Service such sums as he considers appropriate to enable it to fund the activities of the Tribunal and to carry out its other activities.
Schedule 3 (which makes further provision about the Service) has effect.
For the purposes of any proceedings before it, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, the Tribunal shall consist of a chairman and two other members.
The chairman must be the President, a judge within any of paragraphs (aa) to (ac) of section 12(2) or a member of the panel of chairmen.
But in the case of proceedings relating to a claim under section 47A of the 1998 Act which is subject to the fast-track procedure (as described in Tribunal rules), the Tribunal may consist of a chairman only.
The other members may be chosen from the judges within paragraphs (aa) to (ac) of section 12(2), the panel of chairmen or the panel of ordinary members.
If the members of the Tribunal as constituted in accordance with this section are unable to agree on any decision, the decision is to be taken by majority vote.
This section has effect subject to paragraphs 10A(1)(a) and 18 of Schedule 4 (consequences of a member of the Tribunal being unable to continue after the proceedings have begun to be heard).
Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.
The Secretary of State may, after consulting the President and such other persons as he considers appropriate, make rules (in this Part referred to as “Tribunal rules”) with respect to proceedings before the Tribunal, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act.
Tribunal rules may make provision with respect to matters incidental to or consequential upon appeals provided for by or under any Act to the Court of Appeal or the Court of Session in relation to a decision of the Tribunal.
Tribunal rules may—
specify qualifications for appointment as Registrar;
confer functions on the President or the Registrar in relation to proceedings before the Tribunal; and
contain incidental, supplemental, consequential or transitional provision.
The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).
The Lord Chancellor may by regulations—
make provision enabling the court—
to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and
to give effect to the determination of that issue by the Tribunal; and
make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.
The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).
The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.
Rules of court may make provision in connection with the transfer from the Tribunal to the court of all or any part of a claim made in proceedings under section 47A of the 1998 Act.
In this section— but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part.
“EU merger commitments” means commitments attached to a decision adopted by the European Commission under Article 6(1)(b) and (2) or 8(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and
“specified” means specified in the order.
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
The Competition Service shall pay to the President, the chairmen and the ordinary members such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary of State may determine. The Competition Service shall, if required to do so by the Secretary of State—
The President must arrange such training for members of the Tribunal as he considers appropriate.
Paragraph 2 applies in relation to—
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
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).
The Company Directors Disqualification Act 1986 shall be amended as follows.
The Employment Rights Act 1996 shall be amended as follows. In section 166(7) (application by employee for payment by Secretary of State)— In section 183(3)(a) (insolvency of employer)— Omit section 189(4) (transfer to Secretary of State of rights and remedies: priority of preferential debts).
Any rules made under section 48 of the 1998 Act which are in force immediately before the commencement of section 15 above shall be treated after that commencement as having been made under section 15. The Secretary of State may treat any consultation carried out with the President of the Competition Commission Appeal Tribunals (before the appointment of the President of the Competition Appeal Tribunal) as being as effective for the purposes of section 15(1) as if it had been carried out with the President of the Competition Appeal Tribunal.
Section 94(1) to (6) shall apply in relation to any undertaking— as it applies in relation to enforcement undertakings under Part 3. Section 94(1) to (6) shall apply in relation to any order made by a Minister of the Crown under section 56, 73, 74, 75K or 89 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph as it applies in relation to enforcement orders under Part 3. Subject to sub-paragraph (3), the functions of the CMA under section 94(6) as applied by virtue of sub-paragraph (1) or (2) are to be carried out on its behalf by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013). Compliance with— shall also be enforceable by civil proceedings brought by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 for an injunction or for interdict or for any other appropriate relief or remedy. Sub-paragraph (3) and section 94(6) as applied by virtue of sub-paragraph (1) or (2) shall not prejudice any right that a person may have by virtue of section 94(4) as so applied to bring civil proceedings for contravention or apprehended contravention of an undertaking or order. Sections 93 and 93A of the 1973 Act shall accordingly cease to apply in relation to undertakings and orders to which sub-paragraphs (1) to (3) above apply.
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The Agricultural Marketing Act 1958 is amended as follows. In section 19A (action following report by Commission)— For the purposes of the Scotland Act 1998 (c. 46) the amendments made by sub-paragraph (2) shall be taken to be pre-commencement enactments within the meaning of that Act. In section 47(2) (restrictions on disclosing certain information obtained under Act), in paragraph (aa) of the proviso—
The 1973 Act is amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sections 34 to 42 (additional functions of Director for protection of consumers) shall cease to have effect. In section 93B (false or misleading information)—
The Patents Act 1977 is amended as follows. After section 50 there is inserted— In section 51(1) (powers exercisable in consequence of report of Competition Commission), paragraphs (a) and (b) shall cease to have effect. In section 53(2) (statements in certain reports of the Competition Commission to be prima facie evidence of the matters stated) after “1980” there is inserted “ or published under Part 3 or 4 of the Enterprise Act 2002 ”.
The Civil Aviation Act 1982 is amended as follows. In section 4 (general objectives), in subsections (3) and (4), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”.
The Airports Act 1986 is amended as follows. In section 44 (supplementary provisions relating to references to Commission), subsections (3) and (3A) shall cease to have effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 74 (restriction on disclosure of information)—
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The Electricity Act 1989 is amended as follows. In section 3D (exceptions from sections 3A to 3C), in subsection (4), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 12 (licence modification references to Commission)— After section 12 there is inserted— In section 13 (reports on licence modification references)— In section 14A (Commission’s power to veto modifications following report)— In section 43 (functions with respect to competition)— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 47 (general functions), in subsection (3)— In section 48 (publication of information and advice), in subsection (3),— In section 56C (references to Commission about activities which are not licensable), subsections (7) and (8) shall cease to have effect. After section 56C there is inserted— In section 56D (reports on references under section 56C)—
The Courts and Legal Services Act 1990 is amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 105 (tying-in arrangements: supplemental provisions), in subsection (10), for “Director” there is substituted “ OFT ”. In section 107 (tying-in: enforcement)— In section 119(1) (interpretation)— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Water Resources Act 1991 is amended as follows. In Schedule 24 (disclosure of information)—
The Osteopaths Act 1993 is amended as follows. In section 33(2) (competition and anti-competitive practices)— After section 33(2) there is inserted— In section 33(3), for “A competition” there is substituted “ An enforcement ”. For section 33(4) there is substituted— For section 33(5) there is substituted—
The Coal Industry Act 1994 is amended as follows. In section 59 (information to be kept confidential by the Authority)—
The Channel Tunnel Rail Link Act 1996 is amended as follows. In section 21 (duties as to exercise of regulatory functions), in subsection (7)(b)— In section 22 (restriction of functions in relation to competition etc.)—
The 1998 Act is amended as follows. In section 3(4)(b) (excluded agreements), for “the Fair Trading Act 1973” there is substituted “ the Enterprise Act 2002 ”. In section 4 (individual exemptions), for “Director” (in each place), “him” and “he” there is substituted “ OFT ”, “ it ” and “ it ” respectively. In section 5 (cancellation etc. of individual exemptions), for “Director” (in each place), “he” (in each place) and “his” (in both places) there is substituted “ OFT ”, “ it ” and “ its ” respectively. In section 6 (block exemptions)— In section 7 (block exemptions: opposition), for “Director” (in each place), and “his” (in both places) there is substituted “ OFT ” and “ its ” respectively. In section 8 (block exemptions: procedure)— In section 10 (parallel agreements)— In section 12 (requests for Director to examine agreements), for “Director” (in each place) there is substituted “ OFT ”. In section 13 (notification for guidance), for “Director” (in each place), “him”, “his” (in both places) and “he” there is substituted “ OFT ”, “ the OFT ”, “ its ” and “ it ” respectively. In section 14 (notification for a decision), for “Director” (in each place) and “him” there is substituted “ OFT ” and “ the OFT ” respectively. In section 15 (effect of guidance), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” (in each place) there is substituted “ OFT ”, “ it ”, “ its ” and “ it ” respectively. In section 16 (effect of a decision that the Chapter 1 prohibition has not been infringed), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” there is substituted “ OFT ”, “ it ”, “ its ” and “ it ” respectively. In section 20 (requests for Director to consider conduct), for “Director” (in each place) there is substituted “ OFT ”. In section 21 (notification for guidance), for “Director” (in both places), “him” and “his” there is substituted “ OFT ”, “ the OFT ” and “ its ” respectively. In section 22 (notification for a decision), for “Director” (in both places) and “him” there is substituted “ OFT ” and “ the OFT ” respectively. In section 23 (effect of guidance), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” (in both places) there is substituted “ OFT ”, “ it ”, “ its ” and “ it ” respectively. In section 24 (effect of a decision that the Chapter 2 prohibition has not been infringed), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” there is substituted “ OFT ”, “ it ”, “ its ” and “ it ” respectively. In section 25 (Director’s power to investigate), for “Director’s” and “Director” there is substituted “ OFT’s ” and “ OFT ” respectively. In section 26 (powers when conducting investigations)— In section 27 (power to enter premises without a warrant)— In section 28 (power to enter premises under a warrant)— In section 31 (decisions following an investigation), for “Director” (in both places) there is substituted “ OFT ”. In section 32 (directions in relation to agreements)— In section 33 (directions in relation to conduct)— In section 34 (enforcement of directions), for “Director” there is substituted “ OFT ”. In section 35 (interim measures), for “Director” (in each place), “his” (in both places), “him” and “he” (in each place) there is substituted “ OFT ”, “ its ”, “ it ” and “ it ” respectively. In section 36 (penalty for infringing Chapter 1 or Chapter 2 prohibition)— In section 37 (recovery of penalties), for “Director” and “him” there is substituted “ OFT ” and “ the OFT ” respectively. In section 38 (the appropriate level of a penalty), for “Director” (in each place), “he” (in each place) and “his” there is substituted “ OFT ”, “ it ” and “ its ” respectively. In section 39 (limited immunity for small agreements), for “Director” (in each place), “he” (in both places) and “his” (in both places) there is substituted “ OFT ”, “ it ” and “ its ” respectively. In section 40 (limited immunity in relation to the Chapter 2 prohibition)— In section 41 (agreements notified to the Commission), for “Director” there is substituted “ OFT ”. In section 44 (false or misleading information), for “Director” (in each place) and “his” there is substituted “ OFT ” and “ its ” respectively. In section 45 (the Competition Commission), after subsection (7) there is inserted— In section 46 (appealable decisions), for “Director” (in each place) there is substituted “ OFT ”. In section 50 (vertical agreements and land agreements), for “Director” there is substituted “ OFT ”. In section 51— and in the cross-heading before that section, for “Director’s” there is substituted “ OFT’s ”. In section 52 (advice and information)— In section 53 (fees), for “Director” (in each place) and “him” there is substituted “ OFT ” and “ it ” respectively. In section 54 (regulators)— In section 57 (defamation), for “Director” and “his” there is substituted “ OFT ” and “ its ” respectively. In section 58 (findings of fact by Director)— and in the cross-heading before that section, for “Director” there is substituted “ OFT ”. In section 59 (interpretation of Part 1) — In section 60 (principles to be applied in determining questions), for “Director” (in both places) there is substituted “ OFT ”. In section 61 (introduction)— In section 62 (power to enter premises: Commission investigation)— In section 63 (power to enter premises: Director’s special investigations)— In section 71 (regulations, orders and rules), in subsection (4), after paragraph (c) there is inserted—. In Schedule 1 (exclusions: mergers and concentrations)— In Schedule 3 (general exclusions)— In Schedule 5 (notification under Chapter 1: procedure)— In Schedule 6 (notification under Chapter 2: procedure)— In Schedule 8 (appeals)— In Schedule 9 (Director’s rules), for “Director” (in each place), “he” (in each place), “Director’s” (in each place) and “him” there is substituted “ OFT ”, “ it ”, “ OFT’s ” and “ it ” respectively.
The Terrorism Act 2000 is amended as follows. In Schedule 3A (regulated sector and supervisory authorities), in paragraph 4(1), for paragraph (d) there is substituted—.
The Transport Act 2000 is amended as follows. In section 12 (licence modification references to Commission), subsections (9), (10) and (11) shall cease to have effect. After section 12 there is inserted— In section 13 (reports on licence modification references)— For section 18 (provisions supplementary to exercise by Commission of functions under sections 15 and 16) there is substituted— In section 85 (interpretation of Chapter 5), in subsection (1), for paragraph (c) there is substituted— In section 86 (functions exercisable by CAA and the Director)— In section 89 (carrying out functions)— In section 90 (publication of information and advice)— In section 91 (review and information)— In Schedule 9 (air traffic: information)— In Schedule 10 (competition test for exercise of bus functions)—
“Westminster legislation” means—
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Subject to sub-paragraph (2), the members shall choose one of their number to be chairman of the Service. The Secretary of State shall designate one of the members to be the first chairman of the Service for such period as the Secretary of State may determine.
The Service has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions.
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The Financial Services and Markets Act 2000 shall be amended as follows.
The following shall be substituted for section 261 of the Insolvency Act 1986 (effect of voluntary arrangement: undischarged bankrupt)—
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in subsection (4) for “an administration order is in force” substitute “the company is in administration”, and
in subsection (6) for “An accounting reference period may not in any case, unless an administration order is in force” substitute “A company’s accounting reference period may not in any case, unless the company is in administration”.
Section 215 (provision of Financial Services Compensation Scheme in relation to insolvency) shall be amended as follows. In subsection (3) for “presents a petition under section 9 of the 1986 Act or Article 22 of the 1989 Order” substitute “ makes an administration application under Schedule B1 to the 1986 Act or presents a petition under Article 22 of the 1989 Order ”. After subsection (3) insert—
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For section 359 (administration order) substitute—
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For section 361 (administrator to report to Authority) substitute—
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In section 362 (Financial Services Authority’s right to participate in proceedings)—
in subsection (1) for “presents a petition to the court under section 9 of the 1986 Act (or Article 22 of the 1989 Order)” substitute “ makes an administration application under Schedule B1 to the 1986 Act (or presents a petition under Article 22 of the 1989 Order) ”,
after subsection (1) insert—,
in subsection (2)(a) for “petition” substitute “ administration application or the petition ”,
for subsection (4) substitute—, and
in subsection (5)(b) for “section 26 of the 1986 Act” substitute “ paragraph 57 of Schedule B1 to the 1986 Act ”.
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After section 362 insert—
In section 427A(3) (mergers and divisions of public companies) for “an administration order being in force in relation to the company” substitute “ where the company is in administration ”.
In this Schedule “chairman” and “ordinary member” mean respectively a member of the panel of chairmen, or a member of the panel of ordinary members, appointed under section 12.
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 notice under sub-paragraph (1) shall state— A notice under sub-paragraph (1) shall be given by— 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 notice under sub-paragraph (4) shall state— A notice under sub-paragraph (4) shall be given by—
In section 6 (duty of court to disqualify unfit director of insolvent company)—
for subsection (2)(b) substitute—,
for subsection (3)(c) substitute—, and
for subsection (3A)(b) substitute—
Sub-paragraph (2) applies to any undertaking— An undertaking to which this sub-paragraph applies may be— Subject to sub-paragraph (4) and any provision made under section 276(2), the power of the CMA under this paragraph to supersede, vary or release an undertaking is exercisable in the same circumstances, and on the same terms and conditions, as the power of the Minister concerned to supersede, vary or release the undertaking would be exercisable under the 1973 Act. The duty under section 75J(b) of the 1973 Act to give advice shall be a duty of the CMA to consider what action (if any) it should take. Where the CMA has the power by virtue of this paragraph to supersede, vary or release an undertaking accepted by a Minister of the Crown— the Minister concerned shall accordingly cease to have the power under that Act to supersede, vary or release the undertaking. The functions of the CMA under this paragraph are to be carried out on its behalf—
The Competition Appeal Tribunal.
If, after giving notice under paragraph 2(1) or (4), the relevant authority decides— the relevant authority shall give notice of that decision. A notice under sub-paragraph (1) shall be given by—
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Any order made by a Minister of the Crown under section 56, 73, 74 or 89 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph may be varied or revoked by an order made by the CMA under this paragraph. Any order made by a Minister of the Crown under section 75K of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph may be varied or revoked by an order made by the CMA under this paragraph. Subject to sub-paragraph (4) and any provision made under section 276(2), the power of the CMA to make an order under sub-paragraphs (1) and (2) is exercisable in the same circumstances, and on the same terms and conditions, as the power of the Minister concerned to make a corresponding varying or revoking order under the 1973 Act would be exercisable. The power of the CMA to make an order under sub-paragraphs (1) and (2) shall not be exercisable by statutory instrument and shall not be subject to the requirements of section 134(1) of the 1973 Act. Where the CMA has the power by virtue of this paragraph to vary or revoke an order made by a Minister of the Crown under section 56, 73, 74, 75K or 89 of the 1973 Act, the Minister concerned shall accordingly cease to have the power to do so under that Act. The functions of the CMA under this paragraph are to be carried out on its behalf—
The Competition Appeal Tribunal.
As soon as practicable after accepting an undertaking to which paragraph 2 applies or (as the case may be) making an order to which that paragraph applies, the relevant authority shall (except in the case of an order which is a statutory instrument)—
serve a copy of the undertaking on any person by whom it is given or (as the case may be) serve a copy of the order on any person identified in the order as a person on whom a copy of the order should be served; and
publish the undertaking or (as the case may be) the order.
Section 94(1) to (6) shall apply in relation to undertakings accepted under paragraph 16 and orders made under paragraph 17 as it applies in relation to enforcement undertakings and enforcement orders under Part 3. Subject to sub-paragraph (2), the functions of the CMA under section 94(6) as applied by virtue of sub-paragraph (1) are to be carried out on its behalf by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013). Compliance with an undertaking accepted by a group constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (“CMA group”) under paragraph 16 or an order made by a CMA group under paragraph 17 shall also be enforceable by civil proceedings brought by a CMA group for an injunction or for interdict or for any other appropriate relief or remedy. Sub-paragraph (2) and section 94(6) as applied by virtue of sub-paragraph (1) shall not prejudice any right that a person may have by virtue of section 94(4) as so applied to bring civil proceedings for contravention or apprehended contravention of an undertaking or order.
The requirements of paragraph 2(4) (and those of paragraph 2(1)) shall not apply if the relevant authority— The requirements of paragraph 2(4) (and those of paragraph 2(1)) shall not apply if the relevant authority—
The Service may, with the approval of the Secretary of State as to numbers and terms and conditions of service, appoint such staff as it may determine. The persons to whom section 1 of the Superannuation Act 1972 (c. 11) (persons to or in respect of whom benefits may be provided by schemes under that section) applies shall include the staff of the Service. The Service shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (2) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.
The Service shall keep proper accounts and proper records in relation to its accounts. In performing that duty the Service shall, in addition to accounts and records relating to its own activities (including the services provided to the Tribunal), keep separate accounts and separate records in relation to the activities of the Tribunal.
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.
An order may make such provision as the person making the order considers to be appropriate in the interests of national security ... . Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.
The Service shall— The Service must send copies of the accounts required by sub-paragraph (1) to the Secretary of State and to the Comptroller and Auditor General before the end of August following the financial year to which they relate. Those accounts must comply with any directions given by the Secretary of State with the approval of the Treasury as to— The Comptroller and Auditor General shall— In this paragraph “financial year” means the period of 12 months ending with 31st March.
For section 47 of the 1998 Act (third party appeals) there is substituted—
After section 47 of the 1998 Act there is inserted—
Section 47A applies to claims arising before the commencement of this section as it applies to claims arising after that time.
After section 47A of the 1998 Act (which is inserted by section 18), there is inserted—
After section 58 of the 1998 Act there is inserted—
Section 58A does not apply in relation to decisions made before the commencement of this section.
In section 59(1) of that Act (interpretation), in the definition of “the court”, after “58” there is inserted “ , 58A ”.
Schedule 5 (which contains amendments of the 1998 Act relating to, and to the proceedings of, the Tribunal) has effect.
The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
a relevant merger situation has been created; and
the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
The CMA may decide not to make a reference under subsection (1) if it believes that—
the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ...; or
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(2), to accept a fast-track reference request.
No reference shall be made under subsection (1) if—
the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7;
the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 33 ...; or
a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the CMA under section 56(1); or
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A reference under this section shall, in particular, specify—
the enactment under which it is made; and
the date on which it is made.
The references in this section to the creation of a relevant merger situation shall be construed in accordance with section 23, the reference in subsection (2) of this section to relevant customer benefits shall be construed in accordance with section 30 and the reference in subsection (3) of this section to a matter to which a notice under section 42(2) relates being finally determined under Chapter 2 shall be construed in accordance with section 43(4) and (5).
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In this Part “market in the United Kingdom” includes— and references to a market for goods or services include references to a market for goods and services.
so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and
any market which operates only in a part of the United Kingdom;
In this Part “the decision-making authority” means—
in the case of a reference or possible reference under this section or section 33 ..., the CMA; and
in the case of a notice or possible notice under section 42(2) or 59(2) or a reference or possible reference under section 45 or 62, the CMA or (as the case may be) the Secretary of State.
For the purposes of this Part, a relevant merger situation has been created if—
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and
the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £100 million.
For the purposes of this Part, a relevant merger situation has also been created if—
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; ...
as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent ; and
The condition mentioned in this subsection is that, in relation to the supply of goods of any description, at least one-quarter of all the goods of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom—
are supplied by one and the same person or are supplied to one and the same person; or
are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.
the value of the turnover in the United Kingdom of— exceeds £10 million.
the enterprise being taken over, or
any other enterprise concerned,
The condition mentioned in this subsection is that, in relation to the supply of services of any description, the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, is to the extent of at least one-quarter—
supply by one and the same person, or supply for one and the same person; or
supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.
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For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3) or (4) , or of 33 per cent mentioned in subsection (4D), is fulfilled with respect to goods or (as the case may be) services of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.
For the purposes of subsection (2)(c)(ii), any turnover of any other enterprise concerned that is also turnover of the enterprise being taken over is to be ignored.
References in subsections (3) , (4), (4D) and (4F)(c) to the supply of goods or (as the case may be) services shall, in relation to goods or services of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
as references to any of those forms of supply taken separately;
as references to all those forms of supply taken together; or
as references to any of those forms of supply taken in groups.
For the purposes of subsection (6) the decision-making authority may treat goods or services as being the subject of different forms of supply whenever—
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
The criteria for deciding when goods or services can be treated, for the purposes of this section, as goods or services of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.
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For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—
in the case of a reference which is treated as having been made under section 22 by virtue of section 37(2), such time as the CMA may determine; and
in any other case, immediately before the time when the reference has been, or is to be, made.
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For the purposes of this Part, a relevant merger situation has also been created if—
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and
each of the conditions mentioned in subsections (4D) to (4F) is satisfied.
The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, in relation to the supply of goods or services of any description, at least 33 per cent of all the goods or (as the case may be) services of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom, would be supplied— in connection with E or any other enterprise concerned with which E is under common ownership or common control.
by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or
to that person or those persons,
The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million.
The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, an enterprise within subsection (4G) would satisfy one or more of the following additional conditions—
the enterprise would be carried on by a body of persons corporate or unincorporate formed or recognised under the law of any part of the United Kingdom;
the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom;
the person, or persons, by whom the enterprise would be carried on supply goods or services to a person or persons in the United Kingdom in connection with the enterprise.
The following enterprises are within this subsection—
any enterprise concerned other than—
E, or
any other enterprise with which E is under common ownership or common control;
any enterprise concerned that, as a result of the enterprises concerned ceasing to be distinct enterprises, a person or group of persons may be treated as having brought under their control by virtue of section 26(4).
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For the purposes of section 23 two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within this section if—
the two or more enterprises ceased to be distinct enterprises before the day on which the reference relating to them is to be made and did so not more than four months before that day; or
notice of material facts about the arrangements or transactions under or in consequence of which the enterprises have ceased to be distinct enterprises has not been given in accordance with subsection (2).
Notice of material facts is given in accordance with this subsection if—
it is given to the CMA prior to the entering into of the arrangements or transactions concerned or the facts are made public prior to the entering into of those arrangements or transactions; or
it is given to the CMA, or the facts are made public, more than four months before the day on which the reference is to be made.
In this section—
“relevant decision” means—
Section 27 of the Gas Act 1986 (modification of licence conditions by order) shall be amended as follows. For subsection (1) there shall be substituted— In subsection (2)— Subsections (3) and (4) shall cease to have effect. In subsection (5)— For subsection (6) there shall be substituted—
Section 17 of the Water Industry Act 1991 (modification of conditions of appointment by order) shall be amended as follows. For subsections (1) and (2) there shall be substituted— For subsection (4) there shall be substituted—
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (3) shall cease to have effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 19 of the Transport Act 2000 (modification of licence conditions by order) shall be amended as follows. For subsections (1) to (4) there shall be substituted— In subsection (5) for the words “Secretary of State” there shall be substituted “ relevant authority ”. For subsection (6) there shall be substituted— 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 ”.
Section 279 of the Insolvency Act 1986 (c. 45) (bankruptcy: discharge) shall not apply to a pre-commencement bankrupt (whether in its pre-commencement or its post-commencement form).
A pre-commencement bankrupt who was adjudged bankrupt on a petition under section 264(1)(d) of the Insolvency Act 1986 (criminal bankruptcy)—
shall not be discharged from bankruptcy in accordance with paragraph 4 above, but
may be discharged from bankruptcy by an order of the court under section 280 of that Act.
In section 36(1) of that Act (interpretation of Part 2 of that Act)—
the definition of “the 1973 Act”, and the word “and” at the end of the definition, shall cease to have effect; and
“the 2002 Act” means the Enterprise Act 2002;
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for “Article 45(3)(b)” there shall be substituted “Article 45(1A)”;
for “the reference” there shall be substituted “references”; and
for “a reference” there shall be substituted “references”.
Section 54 of the Airports Act 1986 (modification of certain conditions in force under Part 4 of that Act) shall be amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subsection (3) shall cease to have effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
For section 193 of the Broadcasting Act 1990 (modification of networking arrangements in consequence of reports under competition legislation) there shall be substituted—
Section 16 of the Railways Act 1993 (modification of licence conditions by order) shall be amended as follows. For subsections (1) and (2) there shall be substituted— In subsection (3) for the words “Secretary of State” there shall be substituted “ relevant authority ”. For subsection (5) there shall be substituted—
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Section 36A of the Gas Act 1986 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows. For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted— In subsection (4) for the word “(2)” there shall be substituted “ (2A) ”. For subsection (5) there shall be substituted— 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 ”. For subsection (8) there shall be substituted— Subsection (9) shall cease to have effect. 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 ”.
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. For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted— For paragraph (4) there shall be substituted— In paragraph (6)— For paragraph (6A) there shall be substituted— Paragraph (7) shall cease to have effect.
Section 85 of the Transport Act 2000 (interpretation of Chapter V) shall be amended as follows. In subsection (1) for paragraph (a) there shall be substituted—. In subsection (3)—
a person who under the British Nationality Act 1981 (c. 61) is a British subject; or
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for “section 54(3)(b)” there shall be substituted “section 54(1A)”;
for “the reference” there shall be substituted “references”; and
for “a reference” there shall be substituted “references”.
Section 86 of that Act (functions exercisable by the CAA and the Director) shall be amended as follows. For subsection (2) there shall be substituted— 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) ”. In subsection (7)(a) for the words from the beginning to “Act” there shall be substituted “ Part 4 of the 2002 Act ”.
“company” includes any body corporate;
In section 87 of that Act (CAA’s 1973 Act functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.
In section 89 of that Act (carrying out functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.
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The CMA and the persons carrying on the enterprises which have or may have ceased to be distinct enterprises may agree to extend by no more than 20 working days the four month period mentioned in section 24(1)(a) or (2)(b).
The CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it considers that any of those persons has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
An extension under subsection (2) shall come into force when notice of the extension is given and end—
when the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
if earlier, the CMA cancels the extension.
The CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it is seeking undertakings from any of those persons under section 73.
An extension under subsection (4) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—
the giving of the undertakings concerned;
the expiry of the period of 10 working days beginning with the first day after the receipt by the CMA of a notice from the person who has been given a notice under subsection (4) and from whom the undertakings are being sought stating that he does not intend to give the undertakings; or
the cancellation by the CMA of the extension.
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Subject to subsections (10) and (11), where the four month period mentioned in section 24(1)(a) or (2)(b) is extended or further extended by virtue of this section in relation to a particular case, any reference to that period in section 24 or the preceding provisions of this section shall have effect in relation to that case as if it were a reference to a period equivalent to the aggregate of the period being extended and the period of the extension (whether or not those periods overlap in time).
Subsection (11) applies where—
the four month period mentioned in section 24(1)(a) or (2)(b) is further extended;
the further extension and at least one previous extension is made under one or more of subsections (2) and (4); and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (10)(c) shall be disregarded.
No more than one extension is possible under subsection (1).
For the purposes of this Part any two enterprises cease to be distinct enterprises if they are brought under common ownership or common control (whether or not the business to which either of them formerly belonged continues to be carried on under the same or different ownership or control).
Enterprises shall, in particular, be treated as being under common control if they are—
enterprises of interconnected bodies corporate;
enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or
an enterprise carried on by a body corporate and an enterprise carried on by a person or group of persons having control of that body corporate.
A person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body corporate, or the policy of any person in carrying on an enterprise but without having a controlling interest in that body corporate or in that enterprise, may, for the purposes of subsections (1) and (2), be treated as having control of it.
For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, a person or group of persons may be treated as bringing an enterprise under his or their control if—
being already able to control or materially to influence the policy of the person carrying on the enterprise, that person or group of persons acquires a controlling interest in the enterprise or, in the case of an enterprise carried on by a body corporate, acquires a controlling interest in that body corporate; or
being already able materially to influence the policy of the person carrying on the enterprise, that person or group of persons becomes able to control that policy.
Subsection (2) applies in relation to any arrangements or transaction—
not having immediate effect or having immediate effect only in part; but
under or in consequence of which any two enterprises cease to be distinct enterprises.
The time when the parties to any such arrangements or transaction become bound to such extent as will result, on effect being given to their obligations, in the enterprises ceasing to be distinct enterprises shall be taken to be the time at which the two enterprises cease to be distinct enterprises.
In accordance with subsections (1) and (2) (but without prejudice to the generality of those subsections) for the purpose of determining the time at which any two enterprises cease to be distinct enterprises no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
Subsections (1) to (3) are subject to subsections (5) to (8) and section 29.
The decision-making authority may, for the purposes of a reference, treat successive events to which this subsection applies as having occurred simultaneously on the date on which the latest of them occurred.
Subsection (5) applies to successive events—
which occur within a period of two years under or in consequence of the same arrangements or transaction, or successive arrangements or transactions between the same parties or interests; and
by virtue of each of which, under or in consequence of the arrangements or the transaction or transactions concerned, any enterprises cease as between themselves to be distinct enterprises.
The decision-making authority may, for the purposes of subsections (5) and (6), treat such arrangements or transactions as the decision-making authority considers appropriate as arrangements or transactions between the same interests.
In deciding whether it is appropriate to treat arrangements or transactions as arrangements or transactions between the same interests the decision-making authority shall, in particular, have regard to the persons substantially concerned in the arrangements or transactions concerned.
For the purposes of section 23 the value of the turnover in the United Kingdom of the enterprise being taken over shall be determined by taking the total value of the turnover in the United Kingdom of the enterprises which cease to be distinct enterprises and deducting—
the turnover in the United Kingdom of any enterprise which continues to be carried on under the same ownership and control; or
if no enterprise continues to be carried on under the same ownership and control, the turnover in the United Kingdom which, of all the turnovers concerned, is the turnover of the highest value.
For the purposes of this Part (other than section 121(4)(c)(ii)) the turnover in the United Kingdom of an enterprise shall be determined in accordance with such provisions as may be specified in an order made by the Secretary of State.
An order under subsection (2) may, in particular, make provision as to—
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
the date or dates by reference to which an enterprise’s turnover is to be determined;
the connection with the United Kingdom by virtue of which an enterprise’s turnover is turnover in the United Kingdom.
An order under subsection (2) may, in particular, make provision enabling the decision-making authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (3)).
The CMA shall—
keep under review the sums for the time being mentioned in section 23(1)(b) , (2)(c) and (4E); and
from time to time advise the Secretary of State as to whether the sums are still appropriate.
The Secretary of State may by order amend section 23(1)(b) , (2)(c) or (4E) so as to alter any of the sums for the time being mentioned there.
Where an enterprise is brought under the control of a person or group of persons in the course of two or more transactions (in this section a “series of transactions”) to which subsection (2) applies, those transactions may, if the decision-making authority considers it appropriate, be treated for the purposes of a reference as having occurred simultaneously on the date on which the latest of them occurred.
This subsection applies to—
any transaction which—
enables that person or group of persons directly or indirectly to control or materially to influence the policy of any person carrying on the enterprise;
enables that person or group of persons to do so to a greater degree; or
is a step (whether direct or indirect) towards enabling that person or group of persons to do so; and
any transaction by virtue of which that person or group of persons acquires a controlling interest in the enterprise or, where the enterprise is carried on by a body corporate, in that body corporate.
Where a series of transactions includes a transaction falling within subsection (2)(b), any transaction occurring after the occurrence of that transaction is to be disregarded for the purposes of subsection (1).
Where the period within which a series of transactions occurs exceeds two years, the transactions that may be treated as mentioned in subsection (1) are any of those transactions that occur within a period of two years.
Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of this section to determine— as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
whether an enterprise is brought under the control of a person or group of persons; and
whether a transaction is one to which subsection (2) applies;
In determining for the purposes of this section the time at which any transaction occurs, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
For the purposes of this Part a benefit is a relevant customer benefit if—
it is a benefit to relevant customers in the form of—
lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets in which the substantial lessening of competition concerned has, or may have, occurred or (as the case may be) may occur); or
greater innovation in relation to such goods or services; and
the decision-making authority believes—
in the case of a reference or possible reference under section 22 or 45(2), as mentioned in subsection (2); and
in the case of a reference or possible reference under section 33 or 45(4), as mentioned in subsection (3).
The belief, in the case of a reference or possible reference under section 22 or section 45(2), is that—
the benefit has accrued as a result of the creation of the relevant merger situation concerned or may be expected to accrue within a reasonable period as a result of the creation of that situation; and
the benefit was, or is, unlikely to accrue without the creation of that situation or a similar lessening of competition.
The belief, in the case of a reference or possible reference under section 33 or 45(4), is that—
the benefit may be expected to accrue within a reasonable period as a result of the creation of the relevant merger situation concerned; and
the benefit is unlikely to accrue without the creation of that situation or a similar lessening of competition.
In subsection (1) “relevant customers” means— and in this subsection “customers” includes future customers.
customers of any person carrying on an enterprise which, in the creation of the relevant merger situation concerned, has ceased to be, or (as the case may be) will cease to be, a distinct enterprise;
customers of such customers; and
any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);
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The OFT may by notice to any of the persons carrying on the enterprises which have or may have ceased to be distinct enterprises request him to provide the OFT with such information as the OFT may require for the purpose of deciding whether to make a reference under section 22.
The notice shall state—
the information required;
the period within which the information is to be provided; and
the possible consequences of not providing the information within the stated period and in the authorised or required manner.
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The Secretary of State may make regulations for the purposes of sections 25 and 31.
The regulations may, in particular—
provide for the manner in which any information requested by the OFT under section 31 is authorised or required to be provided, and the time at which such information is to be treated as provided (including the time at which it is to be treated as provided to the satisfaction of the OFT for the purposes of section 25(3));
provide for the persons carrying on the enterprises which have or may have ceased to be distinct enterprises to be informed, in circumstances in which section 25(3) applies—
of the fact that the OFT is satisfied as to the provision of the information requested by it or (as the case may be) of the OFT’s decision to cancel the extension; and
of the time at which the OFT is to be treated as so satisfied or (as the case may be) of the time at which the cancellation is to be treated as having effect;
provide for the persons carrying on the enterprises which have or may have ceased to be distinct enterprises to be informed, in circumstances in which section 25(5) applies—
of the OFT’s decision to cancel the extension; and
of the time at which the cancellation is to be treated as having effect;
provide for the time at which any notice under section 25(4), (5)(b), (6) or (8) is to be treated as received;
provide that a person is, or is not, to be treated, in such circumstances as may be specified in the regulations, as acting on behalf of a person carrying on an enterprise which has or may have ceased to be a distinct enterprise.
A notice under section 25(2)—
shall be given within 5 days of the end of the period within which the information is to be provided and which is stated in the notice under section 31; and
shall inform the person to whom it is addressed of—
the OFT’s opinion as mentioned in section 25(2); and
the OFT’s intention to extend the period for considering whether to make a reference.
In determining for the purposes of section 25(1) or (5)(b) or subsection (3)(a) above any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of—
Saturday, Sunday, Good Friday and Christmas Day; and
any day which is a bank holiday in England and Wales.
The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
The CMA may decide not to make a reference under subsection (1) if it believes that—
the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ...;
the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference ...; or
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(3), to accept a fast-track reference request.
No reference shall be made under subsection (1) if—
the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7;
the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22 ...; or
a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the CMA under section 56(1); or
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A reference under this section shall, in particular, specify—
the enactment under which it is made; and
the date on which it is made.
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The Secretary of State may by order make such provision as he considers appropriate about the operation of sections 27 and 29 in relation to—
references under this Part which relate to arrangements which are in progress or in contemplation; or
notices under section 42(2) or 59(2) which relate to such arrangements.
An order under subsection (1) may, in particular—
provide for sections 27(5) to (8) and 29 to apply with modifications in relation to such references or notices or in relation to particular descriptions of such references or notices;
enable particular descriptions of events, arrangements or transactions which have already occurred—
to be taken into account for the purposes of deciding whether to make such references or such references of a particular description or whether to give such notices or such notices of a particular description;
to be dealt with under such references or such references of a particular description or under such notices or such notices of a particular description.
In carrying out its function of deciding whether to make a reference under section 22(1) or 33(1), the CMA shall, within the initial period—
decide whether the duty to make a reference under the subsection applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and
inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.
In carrying out its function of making a reference under section 22(1A) or 33(1A), the CMA must, within the initial period, inform the persons carrying on the enterprises concerned by notice of the making of the reference.
Nothing in this section prevents the CMA from making a reference under section 22(1) or 33(1) in the event that—
it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but
no such undertakings are offered or accepted.
In this section—
For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to—
arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or
the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.
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The CMA may extend the initial period for the purposes of section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question.
In subsection (1), “relevant person” means—
any person carrying on any of the enterprises concerned;
any person who (whether alone or as a member of a group) owns or has control of any such person; or
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
For the purposes of subsection (2), 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.
Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days.
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An extension under subsection (1) or (4) comes into force when published under section 107.
An extension under subsection (1) continues in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
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An extension of the initial period for the purposes of section 34ZA(1) may be made under each of subsections (1) or (4) of section 34ZB.
No more than one extension is possible under section 34ZB(4).
Where a period is extended or further extended under section 34ZB(1) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (5) applies where—
the period mentioned in section 34ZA(1) is further extended;
the further extension and at least one previous extension is made under subsection (1) of section 34ZB; and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
The Secretary of State may by order do either or both of the following—
amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period;
amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period.
But no alteration may be made by virtue of subsection (6) which results in—
the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or
the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.
Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
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Subsection (2) applies where the following conditions are met—
arrangements or proposed arrangements might have resulted or might result in the creation of a relevant merger situation (the “arrangements concerned”),
no reference has been made under section 22 or 33 in respect of the arrangements concerned, and
the CMA has not informed the persons carrying on the enterprises concerned of a decision that the duty to make a reference under section 22(1) or 33(1) does not apply in respect of those arrangements.
The persons carrying on the enterprises concerned may make a fast-track reference request to the CMA at any time before the end of the initial period (whether or not that period has begun).
In this section and in sections 34ZE and 34ZF, “fast-track reference request” means a request that the CMA makes a reference under section 22(1A) or 33(1A) in relation to the arrangements concerned.
This section applies where a fast-track reference request is made and not withdrawn.
Where the fast-track reference request is made before the beginning of the initial period, the CMA may, at any time before the beginning of that period, reject the request.
Where the CMA has not rejected the fast-track reference request in accordance with subsection (2), the CMA must, within the decision period, decide whether to accept the request in accordance with section 34ZF or reject the request.
Where the CMA accepts or rejects a fast-track reference request, the CMA must notify the persons carrying on the enterprises concerned that the request has been accepted or rejected.
In this section—
The CMA may accept a fast-track reference request only if the condition in subsection (2) or (3) is met.
The condition in this subsection is that, in relation to the arrangements concerned—
the CMA believes that it is or may be the case that a relevant merger situation has been created, and
the CMA would not be prevented from making a reference under section 22(1) by reason of section 22(3).
The condition in this subsection is that, in relation to the arrangements concerned—
the CMA believes that it is or may be the case that, if carried into effect, the arrangements will result in the creation of a relevant merger situation, and
the CMA would not be prevented from making a reference under section 33(1) by reason of section 33(3).
In deciding whether to accept a fast-track reference request under subsection (2) or (3), the CMA must have regard, in particular, to—
whether the arrangements concerned raise any consideration specified in section 58;
whether a special intervention notice (see section 59(2)) is in force in relation to the arrangements.
Where the CMA decides to accept a fast-track reference request the duties to make references under sections 22(1) and 33(1) do not apply, and accordingly the CMA may not make any reference under those provisions in respect of the arrangements concerned (but see the duties under sections 22(1A) and 33(1A)).
Subject to subsections (6) and (7) and section 127(3), the CMA shall, on a reference under section 22, decide the following questions—
whether a relevant merger situation has been created; and
if so, whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
For the purposes of this Part there is an anti-competitive outcome if—
a relevant merger situation has been created and the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; or
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation and the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
The CMA shall, if it has decided on a reference under section 22 that there is an anti-competitive outcome (within the meaning given by subsection (2)(a)), decide the following additional questions—
whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
In deciding the questions mentioned in subsection (3) the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
In deciding the questions mentioned in subsection (3) the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
In relation to the question whether a relevant merger situation has been created, a reference under section 22 may be framed so as to require the CMA to exclude from consideration—
subsection (1) of section 23;
subsection (2) of that section; or
one of those subsections if the CMA finds that the other is satisfied.
In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen, a reference under section 22 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
Where a reference is made to the chair of the CMA under section 22 or 33 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
sections 35 to 41B, except for sections 35(6) and (7), 36(5) and (6) and 37(6);
where a reference is treated by virtue of section 37(2) as having been made under section 22, section 23(9)(a);
section 76, as it applies in relation to orders under section 83, and sections 77, 78 and 80 to 84;
section 87, so far as relating to an enforcement order made on behalf of the CMA by the group;
sections 92(4), 94 and 94AA, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
section 104, so far as relating to a decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section;
section 107, so far as relating to anything done on behalf of the CMA by the group;
section 109, where the permitted purpose in question relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
section 120(5)(b), so far as relating to a decision of the group;
Schedule 10, so far as relating to an enforcement undertaking or enforcement order which the group is considering accepting or making, or which the group has accepted or made, on behalf of the CMA.
The functions of the CMA under section 95(4) in relation to the matter concerned may be carried out on behalf of the CMA by the group.
Nothing in subsection (1) prevents the CMA Board from exercising a function of the CMA under or by virtue of the following provisions of this Part where the group constituted as mentioned in subsection (1) has ceased to exist—
section 76 and Schedule 10, so far as relating to the making of an order under section 76 in relation to an order under section 83;
section 83 and Schedule 10, so far as relating to the making of an order under section 83;
sections 76 (as it applies in relation to an order under section 83), 80 to 84 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
section 87;
sections 92(4) , 94 and 94AA.
Subject to subsections (5) and (6) and section 127(3), the CMA shall, on a reference under section 33, decide the following questions—
whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
if so, whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
The CMA shall, if it has decided on a reference under section 33 that there is an anti-competitive outcome (within the meaning given by section 35(2)(b)), decide the following additional questions—
whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition;
whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
In deciding the questions mentioned in subsection (2) the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
In deciding the questions mentioned in subsection (2) the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
In relation to the question whether a relevant merger situation will be created, a reference under section 33 may be framed so as to require the CMA to exclude from consideration—
subsection (1) of section 23;
subsection (2) of that section; or
one of those subsections if the CMA finds that the other is satisfied.
In relation to the question whether any such result as is mentioned in section 23(2)(b) will arise, a reference under section 33 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
The CMA shall cancel a reference under section 33 if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.
The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22; and, in such cases, references in this Part to references under those sections shall, so far as may be necessary, be construed accordingly.
Where, by virtue of subsection (2), the CMA treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22, sections 77 to 81 shall, in particular, apply as if the reference had been made under section 33 or (as the case may be) 22 instead of under section 22 or 33.
Subsection (5) applies in relation to any undertaking accepted under section 80, or any order made under section 81, which is in force immediately before the CMA, by virtue of subsection (2), treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22.
The undertaking or order shall, so far as applicable, continue in force as if— and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.
in the case of an undertaking or order which relates to a reference made under section 22, accepted or made in relation to a reference made under section 33; and
in the case of an undertaking or order which relates to a reference made under section 33, accepted or made in relation to a reference made under section 22;
The CMA may at any time vary a reference under section 22 or 33.
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No variation by the CMA under this section shall be capable of altering the period permitted by section 39 within which the report of the CMA under section 38 is to be prepared and published.
The CMA shall prepare and publish a report on a reference under section 22 or 33 within the period permitted by section 39.
The report shall, in particular, contain—
the decisions of the CMA on the questions which it is required to answer by virtue of section 35 or (as the case may be) 36;
its reasons for its decisions; and
such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
The CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
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The CMA shall prepare and publish its report under section 38 within the period of 24 weeks beginning with the date of the reference concerned.
Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 22 or 33, the Commission shall prepare and publish its report under section 38—
within the period of 24 weeks beginning with the date of the reference; or
if it is a shorter period, within such period as is necessary to ensure compliance with that article.
The CMA may extend, by no more than 8 weeks, the period within which a report under section 38 on a reference under section 22(1) or 33(1) is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.
Where the CMA and the persons carrying on the enterprises concerned agree— the CMA may extend the original period by the extension period.
that the period within which a report under section 38 is to be prepared and published (the “original period”) should be extended, and
the duration of the period by which the original period should be extended (the “extension period”),
The CMA may extend the period within which a report under section 38 is to be prepared and published if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
In this section “relevant person” means—
any person carrying on any of the enterprises concerned;
any person who (whether alone or as a member of a group) owns or has control of any such person; or
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
The CMA may extend, by no more than 11 weeks, the period within which a report under section 38 on a reference under section 22(1A) or 33(1A) is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.
For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
An extension under subsection (2A), (3) , (3A) or (4) shall come into force when published under section 107.
An extension under subsection (4) shall continue in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
References in this Part to the date of a reference shall be construed as references to the date specified in the reference as the date on which it is made.
This section is subject to section 40.
An extension under subsection (2A) continues in force until—
the end of the extension period, or
an earlier time if, before the end of that period—
the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time, and
the CMA publishes its decision to cancel the extension with effect from that time.
In the case of a report on a reference under section 33, the CMA may provide that a specified period of no more than 3 weeks is to be disregarded for the purposes of any time-limit for the preparation and publication of the report which applies by virtue of this section if—
a relevant person has so requested before the end of the period of 3 weeks beginning with the date of the reference concerned; and
the CMA reasonably believes that the arrangements in question might be abandoned.
If the CMA exercises the power under subsection (8A), the CMA shall publish a notice to that effect.
No extension is possible under subsection (3) or (4) of section 39 where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(b) of that section.
Where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(a) of section 39, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.
A period extended under any subsection of section 39 may also be extended under any other subsection of that section.
No more than one extension is possible under section 39(3) or (3A).
Where a period within which a report under section 38 is to be prepared and published is extended or further extended under section 39(2A), (3) , (3A) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (7) applies where—
the period within which the report under section 38 is to be prepared and published is further extended;
the further extension and at least one previous extension is made under section 39(4); and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
The Secretary of State may by order amend section 39 so as to alter any one or more of the following periods—
the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;
the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.
No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) or (2)(a) of section 39 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.
An order under subsection (8) shall not affect any period of time within which the CMA is under a duty to prepare and publish its report under section 38 in relation to a reference under section 22 or 33 if the CMA is already under that duty in relation to that reference when the order is made.
Before making an order under subsection (8) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
The Secretary of State may make regulations for the purposes of section 39(8).
The regulations may, in particular—
provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the CMA for the purposes of section 39(8));
provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the CMA for the purposes of section 39(8));
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the fact that—
the CMA is satisfied as to the provision of the information or documents required by it; or
the person concerned has appeared as a witness in accordance with the requirements of the CMA;
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the time at which the CMA is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.
Subsection (2) applies where a report of the CMA has been prepared and published under section 38 within the period permitted by section 39 and contains the decision that there is an anti-competitive outcome.
The CMA shall take such action under section 82 or 84 as it considers to be reasonable and practicable—
to remedy, mitigate or prevent the substantial lessening of competition concerned; and
to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition.
The decision of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) or (as the case may be) 36(2) unless there has been a material change of circumstances since the preparation of the report or the CMA otherwise has a special reason for deciding differently.
In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
The CMA shall discharge its duty under section 41(2) within the period of 12 weeks beginning with the date on which it publishes the report concerned under section 38.
The CMA may extend, by no more than 6 weeks, the period within which its duty under section 41(2) shall be discharged if it considers that there are special reasons for doing so.
The CMA may extend the period within which its duty under section 41(2) shall be discharged if it considers that a relevant person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109 which is given in relation to the reference.
In subsection (3), “relevant person” means—
any person carrying on any of the enterprises concerned;
any person who (whether alone or as a member of a group) owns or has control of any such person; or
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
For the purposes of subsection (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.
An extension under subsection (2) or (3) comes into force when published under section 107.
An extension under subsection (3) continues in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
A period extended under section 41A(2) may also be extended under section 41A(3), and a period extended under section 41A(3) may also be extended under section 41A(2).
No more than one extension is possible under section 41A(2).
Where a period is extended or further extended under section 41A(2) or (3), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (5) applies where—
the period within which the CMA must discharge its duty under section 41(2) is further extended;
the further extension and at least one previous extension is made under section 41A(3); and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
The Secretary of State may by order amend section 41A so as to alter either or both of the following periods—
the period of 12 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
the period of 6 weeks mentioned in subsection (2) of that section or any period for the time being mentioned in that subsection in substitution for that period.
But no alteration may be made by virtue of subsection (6) which results in—
the period for the time being mentioned in section 41A(1) exceeding 12 weeks; or
the period for the time being mentioned in section 41A(2) exceeding 6 weeks.
Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
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Subsection (2) applies where—
the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
no reference under section 22, 33, 68B or 68C has been made in relation to the relevant merger situation concerned;
no decision has been made not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33 or subsection (2)(a) of section 68C or a decision to accept undertakings under section 73 instead of making such a reference); and
no reference is prevented from being made under section 22, 33, 68B or 68C by virtue of—
section 22(3)(za) or (a) or (as the case may be) 33(3)(za) or (a) (including those provisions as applied by sections 68B and 68C); ...
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The Secretary of State may give a notice to the CMA (in this Part “an intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.
For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 58 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.
No more than one intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.
For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 to 30 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).
In their application by virtue of subsection (5) sections 23 to 30 shall have effect as if—
for paragraph (a) of section 23(9) there were substituted—;
the references to the CMA in section 25(1) to (3) ... included references to the Secretary of State;
the references to the CMA in section 25(4) and (5) were references to the Secretary of State;
the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;
after section 25(5) there were inserted—;
in section 25(10)(b) for “ and (4) ” there were substituted “, (4) and (5A)”;
the reference in section 25(12) to one extension were a reference to one extension by the CMA and one extension by the Secretary of State;
the powers to extend time-limits under section 25 as applied by subsection (5) above ... were not exercisable by the CMA or the Secretary of State before the giving of an intervention notice but the existing time-limits by virtue of section 24 (as so applied) in relation to possible references under section 22 or 33 were applicable for the purposes of the giving of that notice;
the existing time-limits by virtue of section 24 (as so applied) in relation to possible references under section 22 or 33 (except for extensions under section 25(4)) remained applicable on and after the giving of an intervention notice as if any extensions were made under section 25 as applied by subsection (5) above but subject to further alteration by the CMA or the Secretary of State under section 25 as so applied;
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in the case of the giving of intervention notices, the references in sections 23 to 30 to the making of a reference or a reference were, so far as necessary, references to the giving of an intervention notice or an intervention notice; ...
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Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
For the purposes of this Part a public interest consideration is finalised if—
it is specified in section 58 otherwise than by virtue of an order under subsection (3) of that section; or
it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (7) of section 124 and within the period mentioned in that subsection.
An intervention notice shall state—
the relevant merger situation concerned;
the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
An intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
For the purposes of this Part, a matter to which an intervention notice relates is finally determined under this Chapter if—
the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under section 44 or (as the case may be) 44A has expired and no such report has been made;
the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 45;
the Secretary of State otherwise decides not to make a reference under that section;
the CMA cancels such a reference under section 48(1) or 53(1);
the time within which the CMA is to prepare a report under section 50 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
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;
the Secretary of State decides under section 54(2) to make no finding at all in the matter;
the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;
the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
For the purposes of this Part the time when a matter to which an intervention notice relates is finally determined under this Chapter is—
in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
in a case falling within subsection (4)(c), (d), (g) or (h), the making of the decision concerned;
in a case falling within subsection (4)(i), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
in a case falling within subsection (4)(j), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
In this Part “OFCOM” means the Office of Communications.
Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.
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.
The report shall contain—
advice from the CMA on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and
a summary of any representations about the case which have been received by the CMA and which relate to any public interest consideration mentioned in the intervention notice concerned (other than a media public interest consideration) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.
The report shall, in particular, include decisions as to whether the CMA believes that it is, or may be, the case that—
a relevant merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
the market or markets concerned would not be of sufficient importance to justify the making of a reference ... under section 22 or 33;
in the case of arrangements which are in progress or in contemplation, the arrangements are not sufficiently far advanced, or not sufficiently likely to proceed, to justify the making of such a reference;
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition and any adverse effects of the substantial lessening of competition; or
it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7.
If the CMA believes that it is or may be the case that it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7, the report shall contain descriptions of the undertakings which the CMA believes are, or may be, appropriate.
The report may, in particular, include advice and recommendations on any public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.
The report may, in particular, contain a summary of any representations about the case which have been received by the CMA and which relate to any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.
The CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned—
is specified in section 58(2A) to (2C); or
in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58.
In this Part “broadcasting” means the provision of services the provision of which—
is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996; or
would be required to be so licensed if provided by a person subject to licensing under the Part in question.
In this Part, “newspaper” means a publication which—
consists of, or includes, news-related material which is subject to editorial control;
is published on any periodic basis; and
is connected with the United Kingdom.
For the purposes of subsection (10)—
“news-related material” means—
news or information about current affairs; or
opinion about matters relating to the news or current affairs;
news-related material contained in a publication is subject to editorial control if the publisher of the publication has editorial or equivalent responsibility for—
the content of the material (which may include commissioning it);
how the material is presented; and
the decision to first publish the material;
a publication is not to be treated as consisting of, or including, news-related material if the news-related material contained in the publication—
is included only incidentally to the main content of the publication; or
relates wholly to a particular pastime, hobby, trade, business, industry or profession;
“publication” means a publication which is— and references to “publish” or a “publisher” are to be construed accordingly;
online; or
in hard copy,
a reference to a publication being published on any periodic basis includes, in relation to an online publication, a reference to it being updated on any periodic or other recurring basis;
a publication is connected with the United Kingdom if—
the majority of its readership is in the United Kingdom;
the majority of editorial decisions about the publication are taken in the United Kingdom; or
the registered or principal office of the publisher of the publication is in the United Kingdom.
The Secretary of State may by order amend subsections (9) and (10).
Subsections (2) to (5) apply where the Secretary of State—
has given an intervention notice in relation to a relevant merger situation; and
has received a report of the CMA under section 44, and any report of OFCOM which is required by virtue of section 44A, in relation to the matter.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a relevant merger situation has been created;
the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a relevant merger situation has been created;
the creation of that situation has not resulted, and may be expected not to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
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.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
the creation of that situation may be expected not to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
taking account only of the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.
For the purposes of this Chapter any anti-competitive outcome shall be treated as being adverse to the public interest unless it is justified by one or more than one public interest consideration which is relevant.
This section is subject to section 46.
Subsection (2) applies where—
the Secretary of State has given an intervention notice in relation to a relevant merger situation; and
the intervention notice mentions any media public interest consideration.
OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.
The report shall contain—
advice and recommendations on any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and
a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.
OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.
No reference shall be made under section 45 if—
the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7; or
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The Secretary of State, in deciding whether to make a reference under section 45, shall accept the decisions of the CMA included in its report by virtue of subsection (4) of section 44 and any descriptions of undertakings as mentioned in subsection (5) of that section.
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Where the decision to make a reference under section 45 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised before the end of that period.
Subject to subsection (5), where the decision to make a reference under section 45(2) or (4) is made at any time before the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised if its effect would be to prevent, or to help to prevent, an anti-competitive outcome from being adverse to the public interest.
The Secretary of State may, if he believes that there is a realistic prospect of the public interest consideration mentioned in subsection (4) being finalised within the period of 24 weeks beginning with the giving of the intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.
A reference under section 45 shall, in particular, specify—
the subsection of that section under which it is made;
the date on which it is made; and
the public interest consideration or considerations mentioned in the intervention notice concerned which the Secretary of State is not under a duty to disregard by virtue of subsection (3) above and which he believes are or may be relevant to a consideration of the relevant merger situation concerned.
The CMA shall, on a reference under section 45(2) or (3), decide whether a relevant merger situation has been created.
If the CMA decides that such a situation has been created, it shall, on a reference under section 45(2), decide the following additional questions—
whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and
whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
If the CMA decides that a relevant merger situation has been created, it shall, on a reference under section 45(3), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
The CMA shall, on a reference under section 45(4) or (5), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation.
If the CMA decides that such arrangements are in progress or in contemplation, it shall, on a reference under section 45(4), decide the following additional questions—
whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and
whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
If the CMA decides that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, it shall, on a reference under section 45(5), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
The CMA shall, if it has decided on a reference under section 45 that the creation of a relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions—
whether action should be taken by the Secretary of State under section 55 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation;
whether the CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
Where the CMA has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition within any market or markets in the United Kingdom for goods or services, it shall also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 56(6))—
whether action should be taken by it under section 41 for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
In deciding the questions mentioned in subsections (7) and (8) the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
the adverse effects to the public interest; or
(as the case may be) the substantial lessening of competition and any adverse effects resulting from it.
In deciding the questions mentioned in subsections (7) and (8) in a case where it has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
In this section “admissible public interest consideration” means any public interest consideration which is specified in the reference under section 45 and which the CMA is not under a duty to disregard.
Where a reference is made to the chair of the CMA under section 45 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
sections 47 to 53;
where a reference is treated by virtue of section 49(1) as having been made under section 45(2) or (3), section 23(9)(ab) (as it has effect by virtue of section 42(6));
sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;
section 107, so far as relating to anything done on behalf of the CMA by the group;
section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
section 118(4);
section 120(5)(b), so far as relating to a decision of the group.
The CMA shall cancel a reference under section 45(4) or (5) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.
In relation to the question whether a relevant merger situation has been created or the question whether a relevant merger situation will be created, a reference under section 45 may be framed so as to require the CMA to exclude from consideration—
subsection (1) of section 23;
subsection (2) of that section; or
one of those subsections if the CMA finds that the other is satisfied.
In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen or the question whether any such result will arise, a reference under section 45 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
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— and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.
a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
Where, by virtue of subsection (1), the CMA treats a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section, paragraphs ... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (4) or (as the case may be) (5) of that section instead of under subsection (2) or (3) of that section.
Where, by virtue of subsection (1), the CMA treats a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section, paragraphs ... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (2) or (as the case may be) (3) of that section instead of under subsection (4) or (5) of that section.
Subsection (5) applies in relation to ... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (1), treats a reference as mentioned in subsection (1).
The ... order shall, so far as applicable, continue in force as if— and the ... order concerned may be varied ... or revoked accordingly.
in the case of an ... order which relates to a reference under subsection (2) or (3) of section 45 ... made in relation to a reference made under subsection (4) or (as the case may be) (5) of that section; and
in the case of an ... order which relates to a reference made under subsection (4) or (5) of that section ... made in relation to a reference made under subsection (2) or (as the case may be) (3) of that section;
The Secretary of State may at any time vary a reference under section 45.
The Secretary of State shall consult the CMA before varying any such reference.
Subsection (7) shall not apply if the CMA has requested the variation concerned.
No variation by the Secretary of State under this section shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by section 51 within which the report of the CMA under section 50 is to be prepared and given to the Secretary of State.
The CMA shall prepare a report on a reference under section 45 and give it to the Secretary of State within the period permitted by section 51.
The report shall, in particular, contain—
the decisions of the CMA on the questions which it is required to answer by virtue of section 47;
its reasons for its decisions; and
such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
The CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.
Where the report relates to a reference under section 45 which has been made after a report of OFCOM under section 44A, the CMA shall give a copy of its report (whether or not published) to OFCOM.
The CMA shall prepare its report under section 50 and give it to the Secretary of State under that section within the period of 24 weeks beginning with the date of the reference concerned.
Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the CMA shall prepare its report under section 50 and give it to the Secretary of State—
within the period of 24 weeks beginning with the date of the reference; or
if it is a shorter period, within such period as is necessary to ensure compliance with that article.
The CMA may extend, by no more than 8 weeks, the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.
Where — the CMA may extend the original period by the extension period.
the CMA and the persons carrying on the enterprises concerned agree—
that the period within which a report under section 50 is to be prepared and published (the “original period”) should be extended, and
the duration of the period by which the original period should be extended (the “extension period”), and
the Secretary of State consents to the original period being extended by the extension period,
The CMA may extend the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
In subsection (4) “relevant person” means—
any person carrying on any of the enterprises concerned;
any person who (whether alone or as a member of a group) owns or has control of any such person; or
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
An extension under subsection (2A), (3) or (4) shall come into force when published under section 107.
An extension under subsection (4) shall continue in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
This section is subject to sections 52 and 53.
An extension under subsection (2A) continues in force until—
the end of the extension period, or
an earlier time if, before the end of that period—
the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time,
the Secretary of State consents to the cancellation of the extension with effect from that time, and
the CMA publishes its decision to cancel the extension with effect from that time.
No extension is possible under subsection (3) or (4) of section 51 where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(b) of that section.
Where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(a) of section 51, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.
A period extended under any subsection of section 51 may also be extended under any other subsection of that section.
No more than one extension is possible under section 51(3).
Where a period within which a report under section 50 is to be prepared and given to the Secretary of State is extended or further extended under section 51(2A), (3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (7) applies where—
the period within which the report under section 50 is to be prepared and given to the Secretary of State is further extended;
the further extension and at least one previous extension is made under section 51(4); and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
The Secretary of State may by order amend section 51 so as to alter any one or more of the following periods—
the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;
the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.
No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) or (2)(a) of section 51 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.
An order under subsection (8) shall not affect any period of time within which the CMA is under a duty to prepare and give to the Secretary of State its report under section 50 in relation to a reference under section 45 if the CMA is already under that duty in relation to that reference when the order is made.
Before making an order under subsection (8) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
The Secretary of State may make regulations for the purposes of section 51(8).
The regulations may, in particular—
provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the CMA for the purposes of section 51(8));
provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the CMA for the purposes of section 51(8));
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the fact that—
the CMA is satisfied as to the provision of the information or documents required by it; or
the person concerned has appeared as a witness in accordance with the requirements of the CMA;
provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the time at which the CMA is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.
The CMA shall cancel a reference under section 45 if—
the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;
no other public interest consideration is mentioned in the notice;
at least 24 weeks has elapsed since the giving of the notice; and
the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks.
Where a reference ... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the CMA shall not give its report to the Secretary of State under section 50 in relation to that reference unless—
the period of 24 weeks beginning with the giving of the intervention notice concerned has expired; or
the public interest consideration concerned has been finalised; or
the report must be given to the Secretary of State to ensure compliance with article 9(6) of the European Merger Regulations.
The CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which has not been finalised before the giving of the report.
The CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.
Subsections (1) to (4) are without prejudice to the power of the CMA to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.
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Subsection (2) applies where the Secretary of State has received a report of the CMA under section 50 in relation to a relevant merger situation.
The Secretary of State shall decide whether to make an adverse public interest finding in relation to the relevant merger situation and whether to make no finding at all in the matter.
For the purposes of this Part the Secretary of State makes an adverse public interest finding in relation to a relevant merger situation if, in relation to that situation, he decides—
in connection with a reference ... under subsection (2) of section 45, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (3) of that section;
in connection with a reference ... under subsection (3) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection;
in connection with a reference ... under subsection (4) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (5) of that section; and
in connection with a reference ... under subsection (5) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection.
The Secretary of State may make no finding at all in the matter only if he decides that there is no public interest consideration which is relevant to a consideration of the relevant merger situation concerned.
The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 working days beginning with the receipt of the report of the CMA under section 50.
In making a decision under subsections (2) to (4), the Secretary of State shall disregard any public interest consideration not specified in the reference under section 45 and any public interest consideration disregarded by the CMA for the purposes of its report.
In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept—
in connection with a reference ... under section 45(2) or (4), the decision of the report of the CMA under section 50 as to whether there is an anti-competitive outcome; and
in connection with a reference ... under section 45(3) or (5)—
the decision of the report of the CMA under section 50 as to whether a relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
the decision of the report of the CMA under section 44 as to the absence of a substantial lessening of competition.
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Saturday, Sunday, Good Friday and Christmas Day; and
any day which is a bank holiday in England and Wales.
Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 54 within the period required by subsection (5) of that section to make an adverse public interest finding in relation to a relevant merger situation and has published his decision within the period so required.
The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation concerned.
In making a decision under subsection (2) the Secretary of State shall, in particular, have regard to the report of the CMA under section 50.
In making a decision under subsection (2) in any case of a substantial lessening of competition, the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
Where the Secretary of State decides not to make a reference under section 45 on the ground that no public interest consideration to which he is able to have regard is relevant to a consideration of the relevant merger situation concerned, he shall by notice require the CMA to deal with the matter otherwise than under this Chapter.
Where a notice is given to the CMA in the circumstances mentioned in subsection (1), the CMA shall decide whether to make a reference under section 22 , 33, 68B or 68C; and any time-limits in relation to the Secretary of State’s decision whether to make a reference under section 45 (including any remaining powers of extension) shall apply in relation to the decision of the CMA whether to make a reference under section 22 , 33, 68B or 68C.
Where the CMA cancels under section 53(1) a reference under section 45 and its report under section 44 contains the decision that it is or may be the case that there is an anti-competitive outcome in relation to the relevant merger situation concerned, the CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ....
In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the CMA shall proceed as if—
the reference under section 22 or 33 had been made at the same time as the reference under section 45;
the timetable for preparing and giving its report under section 50 (including any remaining powers of extension and as extended by an additional period of 20 working days) were the timetable for preparing and publishing its report under section 38; and
in relation to the question whether a relevant merger situation has been created or the question whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, the CMA were confined to the questions on the subject to be investigated by it under section 47.
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Saturday, Sunday, Good Friday and Christmas Day; and
any day which is a bank holiday in England and Wales.
Where the Secretary of State decides under section 54(2) to make no finding at all in the matter in connection with a reference under section 45(2) or (4), the CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ... instead of a reference under section 45 and as if its report to the Secretary of State under section 50 had been prepared and published by it under section 38 within the period permitted by section 39.
In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the CMA as included in its report by virtue of section 35(3) or 36(2) shall be construed as a reference to decisions which were included in the report of the CMA by virtue of section 47(8).
Where the CMA becomes under a duty to proceed as mentioned in subsection (3) or (6)—
references in this Part to references under sections 22 and 33 shall, so far as may be necessary, be construed accordingly; and, in particular, sections 77 to 81 shall apply as if a reference has been made ... under section 22 or (as the case may be) 33; and
for the purposes of section 34C, the group constituted in consequence of the reference under section 45 is to be treated as if it were constituted in consequence of a reference under section 22 or (as the case may be) 33.
The CMA shall, in considering whether to make a reference under section 22, 33, 68B or 68C, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 58 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
The CMA and OFCOM shall bring to the attention of the Secretary of State any representations about exercising his powers under section 58(3) which have been made to the CMA or (as the case may be) OFCOM.
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The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.
The need for— in news media is specified in this section.
accurate presentation of news; and
free expression of opinion;
An order under this section may, in particular—
provide for a consideration to be specified in this section for a particular purpose or purposes or for all purposes;
apply in relation to cases under consideration by the CMA, OFCOM or the Secretary of State before the making of the order as well as cases under consideration on or after the making of the order.
The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in news media in each market for news media in the United Kingdom or a part of the United Kingdom is specified in this section.
The following are specified in this section—
the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;
the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and
the need for persons carrying on enterprises consisting in or involving broadcasting, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.
The interest of maintaining the stability of the UK financial system is specified in this section ....
The need to maintain in the United Kingdom the capability to combat, and to mitigate the effects of, public health emergencies is specified in this section.
In this Part, “news media” means—
newspapers; or
news programmes.
In this Part, “news programme” means a programme—
consisting of, or including, news-related material; and
included in broadcasting.
For the purposes of subsection (2G)—
“news-related material” includes—
news or information about current affairs; and
opinion about matters relating to the news and current affairs;
a programme is not to be treated as consisting of, or including, news-related material if the news-related material contained in the programme—
is included only incidentally to the main content of the programme; or
relates wholly to a particular pastime, hobby, trade, business, industry or profession.
For the purposes of this Part an enterprise is a media enterprise if it consists in or involves broadcasting or is a newspaper enterprise.
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In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers.
Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards.
For the purposes of section 58, where two or more media enterprises— they shall be treated (subject to subsection (4)) as all under the control of only one person.
would fall to be treated as under common ownership or common control for the purposes of section 26, or
are otherwise in the same ownership or under the same control,
A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate—
as a reference to any one of the audiences served by that enterprise, taking them separately;
as a reference to all the audiences served by that enterprise, taking them together;
as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or
as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.
The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service—
shall be such as the decision-making authority considers appropriate in the circumstances of the case; and
may allow for persons to be treated as members of an audience if they are only potentially members of it.
In this section “audience” includes readership.
The power under subsection (3) of section 58 to modify that section includes power to modify this section.
Subsection (2) applies where the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
The Secretary of State may give a notice to the CMA (in this Part “a special intervention notice”) if he believes that it is or may be the case that one or more than one consideration specified in section 58 is relevant to a consideration of the special merger situation concerned.
For the purposes of this Part, a special merger situation has been created if—
two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24;
no relevant merger situation has been created; and
immediately before the enterprises concerned ceased to be distinct, one or more of the conditions mentioned in subsections (3C) to (3F) were satisfied.
The conditions mentioned in this subsection are that, immediately before the enterprises concerned ceased to be distinct—
at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and
a person carrying on one or more of the enterprises concerned was a relevant government contractor.
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For the purposes of deciding whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24, whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 to 30 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).
The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on.
In their application by virtue of subsection (5) sections 23 to 30 shall have effect as if—
for paragraph (a) of section 23(9) there were substituted—;
the references to the CMA in section 24(2)(a) and (b) included references to the Secretary of State;
the references to the CMA in section 25(1) to (3) ... included references to the Secretary of State;
the references to the CMA in section 25(4) and (5) were references to the Secretary of State;
the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;
the reference in section 25(12) to one extension were a reference to one extension by the CMA and one extension by the Secretary of State;
the powers to extend time-limits under section 25 as applied by subsection (5) above ... were not exercisable by the CMA or the Secretary of State before the giving of a special intervention notice;
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in the case of the giving of special intervention notices, the references in sections 23 to 30 to the making of a reference or a reference were, so far as necessary, references to the giving of a special intervention notice or a special intervention notice; ...
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The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.
No more than one special intervention notice shall be given under subsection (2) in relation to the same special merger situation.
The condition mentioned in this subsection is that a relevant merger situation would have been created if, in subsection (1) of section 23—
the “and” at the end of paragraph (a) were omitted;
for paragraph (b) there were substituted—;
after that paragraph there were inserted—
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a government contractor—
who has been notified by or on behalf of the Secretary of State of information, documents or other articles relating to defence and of a confidential nature which the government contractor or an employee of his may hold or receive in connection with being such a contractor; and
whose notification has not been revoked by or on behalf of the Secretary of State; or
a former government contractor who was so notified when he was a government contractor and whose notification has not been revoked by or on behalf of the Secretary of State.
The condition mentioned in this subsection is that a relevant merger situation would have been created if, for section 23(2)(c), there were substituted—
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“initial period” has the meaning given by section 34ZA(3).
A decision of the Tribunal may be enforced in Northern Ireland with the leave of the High Court in Northern Ireland— For the purpose of enforcing in Northern Ireland a decision to award damages, costs or expenses— For the purpose of enforcing in Northern Ireland a direction given as a result of a decision of the Tribunal, the direction may be enforced as if it were an order of the High Court in Northern Ireland.
Tribunal rules may make provision as to the period within which and the manner in which proceedings are to be brought. That provision may, in particular—
Tribunal rules may make provision as to the consequences of a member of the Tribunal being unable to continue after part of any proceedings have been heard. The rules may allow the Tribunal to consist of the remaining members for the rest of the proceedings. The rules may enable the President, if it is the chairman of the Tribunal who is unable to continue— 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.
Tribunal rules may make provision— 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.
At the end of section 390 of that Act (disqualification for insolvency practitioner) there shall be added—
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The Registered Designs Act 1949 is amended as follows. In section 11A(1) (powers exercisable in consequence of report of Competition Commission), paragraphs (a) and (b) shall cease to have effect. After section 11A there is inserted—
The Superannuation Act 1972 is amended as follows. The Competition Service.
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The Competition Act 1980 is amended as follows. In section 11 (references of public bodies and certain other persons to the Commission)— After section 11 there is inserted— In section 12 (orders following report under section 11)— In section 16 (general provision as to reports)— In section 17 (laying before Parliament and publication of reports)— Sections 18(information and advice about operation of Act), 21 (monopoly references by Secretary of State alone) and 24 (modification of provisions about performance of Commission’s functions) shall cease to have effect. In section 31 (orders and regulations)— In section 33 (interpretation), for subsection (2) there is substituted— For the purposes of the Scotland Act 1998 (c. 46) the amendments made by this paragraph shall be taken to be pre-commencement enactments within the meaning of that Act.
The Telecommunications Act 1984 is amended as follows. In section 3 (general duties of Secretary of State and Director), in subsection (3C), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 13 (licence modification references to Commission), subsections (9) and (9A) shall cease to have effect. After section 13 there is inserted— In section 14 (reports on licence modification references)— In section 47 (general functions), in subsection (4)— In section 48 (publication of information and advice), after subsection (3) there is inserted— In section 50 (functions under 1973 and 1980 Acts)— In section 101 (general restrictions on disclosure of information)— In section 103 (time limits for summary proceedings)—
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The Water Act 1989 is amended as follows. In section 174 (general restrictions on disclosure of information)—
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The Water Industry Act 1991 is amended as follows. In section 2 (general duties with respect to water industry), in subsection (6B), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading (in this Act referred to as “the OFT”) ”. In section 12(5) (determinations under conditions of appointment) for “the 1973 Act” there is substituted “ the Enterprise Act 2002 ”. In section 14 (conditions of appointment: modification references to Commission), subsections (7) and (7A) shall cease to have effect. After section 14 there is inserted— In section 15 (reports on modification references)— In section 27 (general duty of Director to keep matters under review), in subsection (4)— In section 31 (functions of Director with respect to competition)— In section 201 (publication of certain information and advice), at the end there is inserted— In section 206 (restriction on disclosure of information), in subsection (9A)— “the OFT” means the Office of Fair Trading; In Part 1 of Schedule 15 (disclosure of information)—
The Electricity (Northern Ireland) Order 1992 is amended as follows. In Article 15 (licence modification references to Commission) paragraphs (8) and (8A) shall cease to have effect. After Article 15 there is inserted— In Article 16 (reports on licence modification references)— In Article 46 (functions with respect to competition)— In Article 50 (general functions), in paragraph (3)— In Article 51 (publication of information and advice), in paragraph (3)—
The Chiropractors Act 1994 is amended as follows. In section 33(2) (competition and anti-competitive practices)— After section 33(2) there is inserted— In section 33(3), for “A competition” there is substituted “ An enforcement ”. For section 33(4) there is substituted— For section 33(5) there is substituted—
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The Data Protection Act 1998 is amended as follows. In section 31 (regulatory activity), in subsection (5)(a), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”.
The Financial Services and Markets Act 2000 is amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 194 (general grounds on which power of intervention is exercisable), in subsection (3), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 203 (power to prohibit the carrying on of Consumer Credit Act business)— and in the cross-heading before that section, for “Director General of Fair Trading” there is substituted “ Office of Fair Trading ”. In section 204 (power to restrict the carrying on of Consumer Credit Act business), for “Director” (in each place) and “him” there is substituted “ OFT ” and “ it ” respectively. In section 295 (notification), for “Director” there is substituted “ OFT ”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 399 (misleading the Director General of Fair Trading)— In section 401 (proceedings for offences), in subsection (4), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 427(3)(a) (transitional provisions), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In Schedule 3 (EEA passport rights)— In Schedule 14 (role of Competition Commission)— In Schedule 16 (prohibitions and restrictions imposed by Director General of Fair Trading)—
The Utilities Act 2000 is amended as follows. In section 5(9) (annual and other reports of the Authority), for “Section 125(1) of the Fair Trading Act 1973 (annual and other reports)” there is substituted “ Paragraph 12A(1) of Schedule 7 to the Competition Act 1998 (annual reports of the Competition Commission) ”. In section 105 (general restrictions on disclosure of information)—
Tribunal rules may provide for the Tribunal to reject any proceedings (other than proceedings under section 47A or 47B of the 1998 Act) if it considers that—
the person instituting them does not have a sufficient interest in the decision with respect to which the proceedings are brought; or
the document by which he institutes them discloses no valid grounds for bringing them.
Tribunal rules may provide for the Tribunal— In this paragraph, “a section 47B claim” means a claim made in proceedings under section 47B of the 1998 Act at the commencement of those proceedings.
to reject the whole of any proceedings under section 47B of the 1998 Act if it considers that the person bringing the proceedings is not entitled to do so or that the proceedings do not satisfy the requirements of section 47B(1);
to reject any claim which is included in proceedings under section 47B if it considers that—
the claim is not a consumer claim (within the meaning of section 47B(2)) which may be included in such proceedings; or
the individual concerned has not consented to its being made or continued on his behalf in such proceedings; or
to reject any claim made under section 47A of the 1998 Act or included in proceedings under section 47B of that Act if it considers that there are no reasonable grounds for making it.
Tribunal rules may provide for the Tribunal to reject any proceedings if it is satisfied that the person instituting the proceedings has habitually and persistently and without any reasonable ground—
instituted vexatious proceedings (whether against the same person or against different persons); or
made vexatious applications in any proceedings.
Tribunal rules must ensure that no proceedings are rejected without giving the parties the opportunity to be heard.
The Secretary of State may by order —
substitute a new sum for the sum for the time being mentioned in subsection (3E)(c);
amend the conditions mentioned in subsections (3C), (3D), (3E)(b) and (3F).
A special intervention notice shall state—
the special merger situation concerned; and
the consideration specified in section 58 or considerations so specified which are, or may be, relevant to the special merger situation concerned.
Where the Secretary of State believes that it is or may be the case that two or more considerations specified in section 58 are relevant to a consideration of the special merger situation concerned, he may decide not to mention in the special intervention notice such of those considerations as he considers appropriate.
A special intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
For the purposes of this Part, a matter to which a special intervention notice relates is finally determined under this Chapter if—
the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under section 61 or (as the case may be) 61A has expired and no such report has been made;
the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 62;
the Secretary of State otherwise decides not to make a reference under that section;
the CMA cancels such a reference under section 64(1);
the time within which theCMA is to prepare a report under section 65 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
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;
the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;
the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
For the purposes of this Part the time when a matter to which a special intervention notice relates is finally determined under this Chapter is—
in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
in a case falling within subsection (4)(c), (d) or (g), the making of the decision concerned;
in a case falling within subsection (4)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
in a case falling within subsection (4)(i), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to— the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.
newspapers of any description, or
broadcasting of any description,
References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
as references to any of those forms of supply taken separately;
as references to all those forms of supply taken together; or
as references to any of those forms of supply taken in groups.
For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate—
as references to any of those forms of provision taken separately;
as references to all those forms of provision taken together; or
as references to any of those forms of provision taken in groups.
For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—
the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.
In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.
Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.
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.
The report shall contain—
advice from the CMA on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and
a summary of any representations about the case which have been received by the CMA and which relate to any consideration mentioned in the special intervention notice concerned (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
The report shall include a decision as to whether the CMA believes (disregarding section 59(3B)(b)) that it is, or may be, the case that a special merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
The report may, in particular, include advice and recommendations on any consideration mentioned in the special intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
The report may, in particular, contain a summary of any representations about the case which have been received by the CMA and which relate to any consideration which—
is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
The CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
Subsection (2) applies where the Secretary of State—
has given a special intervention notice in relation to a special merger situation; and
has received a report of the CMA under section 61, and any report of OFCOM which is required by virtue of section 61A, in relation to the matter.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
a special merger situation has been created;
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
The Secretary of State may make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he believes that it is or may be the case that—
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
taking account only of the relevant consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
No reference shall be made under this section if the making of the reference is prevented by . . . paragraph 4 of Schedule 7.
The Secretary of State, in deciding whether to make a reference under this section, shall accept the decision of the CMA included in its report under section 61 by virtue of subsection (4) of that section.
A reference under this section shall, in particular, specify—
the subsection of this section under which it is made;
the date on which it is made; and
the consideration or considerations mentioned in the special intervention notice which the Secretary of State believes are, or may be, relevant to a consideration of the special merger situation concerned.
The CMA shall, on a reference under section 62(2), decide whether a special merger situation has been created.
The CMA shall, on a reference under section 62(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
If the CMA decides that a special merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation, it shall, on a reference under section 62, decide whether, taking account only of the consideration or considerations mentioned in the reference, the creation of that situation operates or may be expected to operate against the public interest.
The CMA shall, if it has decided on a reference under section 62 that the creation of a special merger situation operates or may be expected to operate against the public interest, decide the following additional questions—
whether action should be taken by the Secretary of State under section 66 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned;
whether the CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
Subsection (2) applies where—
the Secretary of State has given a special intervention notice in relation to a special merger situation; and
the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C).
OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.
The report shall contain—
advice and recommendations on any consideration which—
is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and
a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.
OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.
The CMA shall cancel a reference under section 62(3) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.
The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section; and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.
Where, by virtue of subsection (2), the CMA treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section, paragraphs ... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (3) or (as the case may be) (2) of that section instead of under subsection (2) or (3) of that section.
Subsection (5) applies in relation to ... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (2), treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section.
The ... order shall, so far as applicable, continue in force as if— and the ... order concerned may be varied... or revoked accordingly.
in the case of an ... order which relates to a reference under subsection (2) of section 62... made in relation to a reference made under subsection (3) of that section; and
in the case of an ... order which relates to a reference made under subsection (3) of that section... made in relation to a reference made under subsection (2) of that section;
The Secretary of State may at any time vary a reference under section 62.
The Secretary of State shall consult the CMA before varying any such reference.
Subsection (7) shall not apply if the CMA has requested the variation concerned.
No variation by the Secretary of State under this section shall be capable of altering the consideration or considerations specified in the reference or the period permitted by virtue of section 65 within which the report of the CMA under that section is to be prepared and given to the Secretary of State.
The CMA shall prepare a report on a reference under section 62 and give it to the Secretary of State within the period permitted by virtue of this section.
The report shall, in particular, contain—
the decisions of the CMA on the questions which it is required to answer by virtue of section 63;
its reasons for its decisions; and
such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
Sections 51 and 52 (but not section 53) shall apply for the purposes of a report under this section as they apply for the purposes of a report under section 50.
Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the CMA shall give a copy of its report (whether or not published) to OFCOM.
The CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.
Where a reference is made to the chair of the CMA under section 62 for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
sections 63 to 65;
where a reference is treated by virtue of section 64(2) as having been made under section 62(2), section 23(9)(ab) (as it has effect by virtue of section 59(6));
sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;
section 107, so far as relating to anything done on behalf of the CMA by the group;
section 109, where the permitted purpose relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
section 118(4);
section 120(5)(b), so far as relating to a decision of the group.
Subsection (2) applies where the Secretary of State has received a report of the CMA under section 65 in relation to a special merger situation.
The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the CMA is required to decide by virtue of section 63(1) to (3).
The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the CMA under section 65; and subsection (8) of section 54 shall apply for the purposes of this subsection as it applies for the purposes of subsection (5) of that section.
In making his decisions under subsection (2), the Secretary of State shall accept the decisions of the report of the CMA under section 65 as to whether a special merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
Subsection (6) applies where the Secretary of State has decided under subsection (2) that— and has so decided, and published his decision, within the period required by subsection (3).
a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;
at least one consideration which is mentioned in the special intervention notice concerned is relevant to a consideration of the special merger situation concerned; and
taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest;
The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned.
In making a decision under subsection (6), the Secretary of State shall, in particular, have regard to the report of the CMA under section 65.
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Subsection (2) applies where—
the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—
a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
a concentration with a Community dimension (within the meaning of the European Merger Regulations), or a part of such a concentration, has thereby arisen or will thereby arise;
a reference which would otherwise be possible under section 22 or 33 is prevented from being made under that section in relation to the relevant merger situation concerned by virtue of Community law or anything done under or in accordance with it; and
the Secretary of State is considering whether to take appropriate measures to protect legitimate interests as permitted by article 21(3) of the European Merger Regulations.
The Secretary of State may give a notice to the OFT (in this section “a European intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.
A European intervention notice shall state—
the relevant merger situation concerned;
the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
No more than one European intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.
Where the Secretary of State has given a European intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 to 32 (read together with section 34) shall apply for the purposes of this section as they do for the purposes of Chapter 1 but subject to subsection (8).
In their application by virtue of subsection (7) sections 23 to 32 shall have effect as if—
references in those sections to the decision-making authority were references to the Secretary of State;
for paragraphs (a) and (b) of section 23(9) there were substituted “, in relation to the giving of a European intervention notice, the time when the notice is given”;
the references to the OFT in section 24(2)(a) and (b) included references to the Secretary of State;
sections 25, 31 and 32 were omitted; and
the references in sections 23 to 29 to the making of a reference or a reference were, so far as necessary, references to the giving of a European intervention notice or a European intervention notice.
Section 42(3) shall, in its application to this section and section 68, have effect as if for the words “intervention notice” there were substituted “European intervention notice”.
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The Secretary of State may by order provide for the taking of action, where a European intervention notice has been given, to remedy, mitigate or prevent effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of a European relevant merger situation.
In subsection (1) “European relevant merger situation” means a relevant merger situation—
which has been created or will be created if arrangements which are in progress or in contemplation are carried into effect;
by virtue of which a concentration with a Community dimension (within the meaning of the European Merger Regulations), or a part of such a concentration, has arisen or will arise; and
in relation to which a reference which would otherwise have been possible under section 22 or 33 was prevented from being made under that section by virtue of Community law or anything done under or in accordance with it.
Provision made under subsection (1) shall include provision ensuring that considerations which are not public interest considerations mentioned in the European intervention notice concerned may not be taken into account in determining whether anything operates, or may be expected to operate, against the public interest.
Provision made under subsection (1) shall include provision—
applying with modifications sections 23 to 32 for the purposes of deciding for the purposes of this section 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;
requiring the OFT to make a report to the Secretary of State before a reference is made;
enabling the Secretary of State to make a reference to the Commission;
requiring the Commission to investigate and report to the Secretary of State on such a reference;
enabling the taking of interim and final enforcement action.
An order under this section may include provision (including provision for the creation of offences and penalties, the payment of fees and the delegation of functions) corresponding to any provision made in, or in connection with, this Part in relation to intervention notices or special intervention notices and the cases to which they relate.
In this section “European intervention notice” has the same meaning as in section 67.
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No reference shall, subject to subsection (2), be made under section 22, 33, 45 or 62 in relation to a transfer of a newspaper or of newspaper assets to which section 58(1) of the Fair Trading Act 1973 (c. 41) applies.
Subsection (1) does not apply in a case falling within section 59(2) of the Act of 1973.
In this section “transfer of a newspaper or of newspaper assets” has the meaning given by section 57(2) of the Act of 1973.
For sections 32 to 35 of the Water Industry Act 1991 (c. 56) (special provision for water merger references) there shall be substituted—
Before Schedule 4A to the Act of 1991 there shall be inserted, as Schedule 4ZA, the Schedule set out in Schedule 6 to this Act.
For the purposes of this Part, a relevant merger situation involves an energy network merger if two or more of the enterprises that cease to be distinct are energy network enterprises of the same type.
For the purposes of this Part, the types of “energy network enterprise” are—
an enterprise holding a licence under section 7 of the Gas Act 1986 (gas transporter);
an enterprise holding a licence under section 6(1)(b) of the Electricity Act 1989 (transmission of electricity), except as mentioned in subsection (3);
an enterprise holding a licence under section 6(1)(c) of the Electricity Act 1989 (distribution of electricity), except as mentioned in subsection (3).
An enterprise holding a licence under section 6(1)(b) or (c) of the Electricity Act 1989 is not an energy network enterprise if—
the licence was granted following a tender exercise, and
either—
the enterprise does not hold any other licence of a type mentioned in subsection (2), or
the enterprise holds one or more other licences under section 6(1)(b) or (c) of the Electricity Act 1989 and each of those other licences was granted following a tender exercise.
The Secretary of State may by regulations amend this section by—
adding to subsection (2) an enterprise holding a licence under the Gas Act 1986 or the Electricity Act 1989 of a type that is not specified in that subsection;
creating an exception in relation to a type of enterprise specified in subsection (2);
amending or removing an exception that applies in relation to a type of enterprise specified in subsection (2).
Before making regulations under subsection (4), the Secretary of State must consult—
the Gas and Electricity Markets Authority, and
the CMA.
In this section, “tender exercise” has the same meaning as in section 6CD of the Electricity Act 1989.
The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that— but this is subject to subsections (2) and (3).
a relevant merger situation involving an energy network merger has been created, and
the creation of that situation has caused, or may be expected to cause, substantial prejudice to the ability of the Gas and Electricity Markets Authority, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the energy network merger;
The CMA may decide not to make a reference under this section if it believes that any relevant customer benefits in relation to the creation of the relevant merger situation outweigh the prejudice mentioned in subsection (1)(b).
The CMA may not make a reference under this section—
in any circumstances mentioned in section 22(3)(za) to (b) or (d), or
if the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 68C.
A reference under this section must, in particular, specify—
the enactment under which it is made, and
the date on which it is made.
The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that— but this is subject to subsections (2) and (3).
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation involving an energy network merger, and
the creation of that situation may be expected to cause substantial prejudice to the ability of the Gas and Electricity Markets Authority, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the energy network merger,
The CMA may decide not to make a reference under this section if it believes that—
the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference, or
any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the prejudice mentioned in subsection (1)(b).
The CMA may not make a reference under this section—
in any circumstances mentioned in section 33(3)(za) to (b) or (d), or
if the arrangements concerned are being, or have been, dealt with in connection with a reference under section 68B.
A reference under this section must, in particular, specify—
the enactment under which it is made, and
the date on which it is made.
Before forming a view for the purposes of section 68B(1)(b) or (2) or 68C(1)(b) or (2)(b), the CMA must—
ask the Gas and Electricity Markets Authority to give an opinion, and
consider that opinion.
Where the CMA makes a request under this section, the Gas and Electricity Markets Authority must give its opinion on—
whether and to what extent the creation of the relevant merger situation has prejudiced, or may be expected to prejudice, the Authority’s ability, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the relevant merger situation, and
whether any prejudice is outweighed by any relevant customer benefits in relation to the creation of the relevant merger situation.
The Gas and Electricity Markets Authority must prepare and publish a statement of the methods it considers should be applied in forming an opinion on the matters mentioned in subsection (2).
The statement must, in particular, set out—
the criteria to be used for assessing the effect of any particular energy network enterprises ceasing to be distinct enterprises on the Gas and Electricity Market Authority’s ability to make comparisons between such enterprises, and
the relative weight to be given to the criteria.
Before preparing or altering the statement, the Gas and Electricity Markets Authority must consult—
the Secretary of State,
the Scottish Ministers,
the Welsh Ministers,
the CMA, and
each energy network enterprise.
The Gas and Electricity Markets Authority must from time to time—
review the statement, and
where appropriate, change the statement and publish the new version.
In forming its opinion under this section, the Gas and Electricity Markets Authority must apply the methods set out in its latest statement.
In respect of a relevant merger situation involving an energy network merger, the CMA may—
make a reference under both section 22 and section 68B, or
make a reference under both section 33 and section 68C.
If the CMA does so—
the references may be decided by the same group constituted under Schedule 4 to the Enterprise and Regulatory Reform Act 2013;
the functions of the CMA referred to in section 34C(1) and (2) may be carried out on behalf of the CMA by the same group in relation to both references; and
the group’s duties under section 38 to prepare and publish a report on each reference may be satisfied by preparing and publishing a single report on both references.
In relation to— Chapter 1 of this Part applies with the modifications set out in Schedule 5A.
a reference, or possible reference, under section 68B, and
a reference, or possible reference, under section 68C,
In Chapters 2 to 5 of this Part, references to a provision of Chapter 1 include that provision as applied by subsection (1) and Schedule 5A.
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Subsection (2) applies where the OFT is considering whether to make a reference under section 22.
The OFT may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
No undertaking shall be accepted under subsection (2) unless the OFT has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the OFT.
An undertaking which— shall cease to be in force if an order under section 72 or 81 comes into force in relation to that reference or an order under paragraph 2 of that Schedule comes into force in relation to the matter.
is in force under this section in relation to a possible reference or reference under section 22; and
has not been adopted under section 80 or paragraph 1 of Schedule 7;
An undertaking under this section shall, if it has not previously ceased to be in force and if it has not been adopted under section 80 or paragraph 1 of Schedule 7, cease to be in force—
where the OFT has decided to make the reference concerned under section 22, at the end of the period of 7 days beginning with the making of the reference;
where the OFT has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;
where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and
where the OFT has otherwise decided not to make the reference concerned under section 22, on the making of that decision.
The OFT shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
In this section and section 72 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the Commission’s decisions on the reference.
Subsection (2) applies where—
the CMA is considering whether to make a reference under section 22, 33, 68B or 68C; and
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.
The CMA may by order, for the purpose of preventing pre-emptive action—
prohibit or restrict the doing of things which the CMA considers would constitute pre-emptive action;
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
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;
do anything which may be done by virtue of paragraph 19 of Schedule 8.
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a relevant merger situation has been created; and
pre-emptive action is in progress or in contemplation.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
Subsection (3B) applies where—
subsection (1)(a) and (b) applies; and
the CMA also has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
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is in force under this section in relation to a possible reference or a reference under section 22; and
has not been adopted under section 81 or paragraph 2 of Schedule 7;
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—
do anything mentioned in subsection (2)(b) to (d);
impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
So far as made in relation to a reference under section 22, 33, 68B or 68C, an order under this section which has not previously ceased to be in force and which has not been adopted under paragraph 2 of Schedule 7 ceases to be in force in relation to the reference concerned—
where the CMA has decided to make the reference concerned ... —
if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and
otherwise on the final determination of the reference concerned;
where the CMA has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;
where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and
where the CMA has otherwise decided not to make the reference concerned under section 22, 33, 68B or 68C, on the making of that decision.
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.
Subsection (2) applies if the CMA considers that it is under a duty to make a reference under section 22(1) or 33(1) (disregarding the operation of section 22(3)(b) or (as the case may be) 33(3)(b) but taking account of the power of the CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).
The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
In proceeding under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
In proceeding under subsection (2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
Subsection (3B) applies if the CMA considers that it is under a duty to make a reference under section 68B or 68C; and for the purposes of this subsection it must—
disregard the operation of section 22(3)(b) or 33(3)(b) (as applied by section 68B or 68C), but
take account of its power under section 68B(2) or 68C(2) to decide not to make such a reference.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the CMA.
The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing— accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), or
any adverse effect which has or may have resulted from it or may be expected to result from it,
An undertaking under this section which is in force in relation to a relevant merger situation shall cease to be in force if an order comes into force under section 75 or 76 in relation to that undertaking.
In proceeding under subsection (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the prejudice and any adverse effects resulting from it.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
Before proceeding under subsection (3B), the CMA must—
ask the Gas and Electricity Markets Authority to give its opinion on the effect of the undertakings offered, and
consider the Authority’s opinion.
The relevant authority shall not make a reference under section 22, 33 or 45 in relation to the creation of a relevant merger situation if—
the CMA has accepted an undertaking or group of undertakings under section 73(2); and
the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.
Subsections (1) and (1A) do not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the CMA or made public before any undertaking concerned was accepted.
The relevant authority may not make a reference under section 45, 68B or 68C in relation to the creation of a relevant merger situation if—
the CMA has accepted an undertaking or group of undertakings under section 73(3B), and
the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.
For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.
In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.
In this section “relevant authority” means—
in relation to a possible reference under section 22 , 33, 68B or 68C, the CMA; and
in relation to a possible reference under section 45, the Secretary of State.
A party concerned who wishes to offer an undertaking to the CMA for the purposes of section 73(2) or (3B) must do so before the end of the period of 5 working days beginning with—
the day after the CMA gives the person the notice required by section 34ZA(1)(b); ...
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If an undertaking is offered for the purposes of section 73(2) or (3B), the CMA shall, before the end of the period of 10 working days beginning with the day mentioned in subsection (1)—
decide whether there are reasonable grounds for believing that the undertaking or a modified version of it might be accepted by the CMA under section 73(2) or (3B), and
if it considers that it might be, give notice to the person who offered the undertaking that it is considering it.
If such a notice is given, the CMA shall decide whether to accept the undertaking before the end of the period of 50 working days beginning with the day mentioned in subsection (1).
The CMA may extend the period mentioned in subsection (3), by no more than 40 working days, if it considers that there are special reasons for doing so.
The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4).
The CMA may revise any such guidance and, where it does so, shall publish the revised statement.
The CMA may extend the period mentioned in subsection (3) if it considers that a relevant person has failed (with or without reasonable excuse) to comply with any requirement of a notice given under section 109 in relation to the case in question.
In subsection (7), “relevant person” means—
any person carrying on any of the enterprises concerned;
any person who (whether alone or as a member of a group) owns or has control of any such person; or
any officer, employee or agent of any person mentioned in paragraph (a) or (b).
For the purposes of subsection (8), a person or group of persons able, directly or indirectly, to control or materially 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.
An extension under subsection (4) or (7) comes into force when published under section 107.
An extension under subsection (7) continues in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
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Subsection (2) applies where the CMA considers that—
an undertaking accepted by it under section 73(2) or (3B) has not been, is not being or will not be fulfilled; or
in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the CMA by the person giving the undertaking before the CMA decided to accept the undertaking.
The CMA may, for any of the purposes mentioned in section 73(2) or (3B) (as the case may be), make an order under this section.
In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
in relation to the purpose mentioned in section 73(2), the substantial lessening of competition mentioned in that subsection and any adverse effects resulting from it;.
in relation to the purpose mentioned in section 73(3B), the prejudice mentioned in that subsection and any adverse effects resulting from it.
An order under this section may contain—
anything permitted by Schedule 8; and
such supplementary, consequential or incidental provision as the CMA considers appropriate.
In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
An order under this section—
shall come into force at such time as is determined by or under the order;
may contain provision which is different from the provision contained in the undertaking concerned; and
may be varied or revoked by another order.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
A period extended under section 73A(4) may also be extended under section 73A(7), and a period extended under section 73A(7) may also be extended under section 73A(4).
No more than one extension is possible under section 73A(4).
Where a period is extended or further extended under section 73A(4) or (7), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (5) applies where—
the period within which the CMA must discharge its duty under section 73A(3) is further extended,
the further extension and at least one previous extension is made under section 73A(7), and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
The Secretary of State may by order amend section 73A so as to alter one or more of the periods for the time being mentioned in the section.
But no alteration may be made by virtue of subsection (6) which results in—
the period mentioned in section 73A(1) exceeding 5 working days;
the period mentioned in section 73A(2) exceeding 10 working days;
the period mentioned in section 73A(3) exceeding 50 working days;
the period mentioned in section 73A(4) exceeding 40 working days.
Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
Subsection (2) applies where—
the CMA has the power to make an order under section 75 in relation to a particular undertaking and intends to make such an order; or
the CMA has the power to make an order under section 83 in relation to a particular undertaking and intends to make such an order.
The CMA may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this section.
No order shall be made under subsection (2) unless the CMA has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under section 75 or (as the case may be) 83 is in progress or in contemplation.
An order under subsection (2) may—
prohibit or restrict the doing of things which the CMA considers would prejudice the making of the order under section 75 or (as the case may be) 83;
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
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;
do anything which may be done by virtue of paragraph 19 of Schedule 8.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
An order under this section shall, if it has not previously ceased to be in force, cease to be in force on—
the coming into force of an order under section 75 or (as the case may be) 83 in relation to the undertaking concerned; or
the making of the decision not to proceed with such an order.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
Subsections (2) and (3) apply where—
a reference has been made under section 22 or 68B but not finally determined; and
no undertakings under section ... 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
No relevant person shall, without the consent of the CMA —
complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;
make any further arrangements in consequence of that result (other than arrangements which reverse that result); or
transfer the ownership or control of any enterprises to which the reference relates.
No relevant person shall, without the consent of the CMA, assist in any of the activities mentioned in paragraphs (a) to (c) of subsection (2).
The prohibitions in subsections (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.
The consent of the CMA under subsection (2) or (3)—
may be general or special;
may be revoked by the CMA; and
shall be published in such manner as the CMA considers appropriate for the purpose of bringing it to the attention of any person entitled to the benefit of it.
Paragraph (c) of subsection (5) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
Subsections (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
a United Kingdom national;
a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
a person carrying on business in the United Kingdom.
In this section “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.
Subsection (2) applies where—
a reference has been made under section 33 or 68C; and
no undertakings under section 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
No relevant person shall, without the consent of the CMA, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.
The consent of the CMA under subsection (2)—
may be general or special;
may be revoked by the CMA; and
shall be published in such manner as the CMA considers appropriate for bringing it to the attention of any person entitled to the benefit of it.
Paragraph (c) of subsection (3) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
Subsection (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
a United Kingdom national;
a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
a person carrying on business in the United Kingdom.
In this section and section 79—
“consumer” means any person who is— and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
an Act of the Scottish Parliament;
“share” means share in the capital of a company, and includes stock.
The Service shall consist of— An appointed member shall be appointed by the Secretary of State after consulting the President.
The Service shall pay— as may be determined by the Secretary of State. The Service shall, if required to do so by the Secretary of State—
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. 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. In proceeding under sub-paragraph (2), the Secretary of State shall, in particular— 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. 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. 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. A delay under sub-paragraph (6) shall not extend beyond— An undertaking under this paragraph— 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. 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. In sub-paragraphs (8) and (10), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
Section 50 of the Telecommunications Act 1984 (application of monopoly provisions etc. to the Director General of Telecommunications) shall be amended as follows. For subsection (2) (monopoly functions to be exercisable concurrently by the Director General of Telecommunications) there shall be substituted— For subsection (4) there shall be substituted— In subsection (6)— For subsection (6A) there shall be substituted— Subsection (7) shall cease to have effect.
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. For subsection (2) (monopoly functions to be exercisable concurrently by the Director General of Water Services) there shall be substituted— For subsection (4) there shall be substituted— For subsections (5) and (6) there shall be substituted— In subsection (8)— For subsection (8A) there shall be substituted— Subsection (9) shall cease to have effect.
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. For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted— For paragraph (4) there shall be substituted— 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 ”. For paragraph (7) there shall be substituted— Paragraph (8) shall cease to have effect. 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) ”.
In the case of any such person who has held the office of the Director as may be determined by the Secretary of State with the approval of the Minister for the Civil Service— as may be so determined.
such pension, allowance or gratuity shall be paid to or in respect of him on his retirement or death, or
such contributions or payments shall be paid towards provision for such a pension, allowance or gratuity,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
If, where any person ceases to hold office as an appointed member, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, the Service shall pay to him such amount by way of compensation as the Secretary of State may determine.
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— In sub-paragraph (1) “the relevant authority” means— 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. 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. In sub-paragraph (3) “made public” means so publicised as to be generally known or readily ascertainable.
an Act of Parliament, or
Article 18 of the Gas (Northern Ireland) Order 1996 (modification of licence conditions by order) shall be amended as follows. For paragraph (1) there shall be substituted— In paragraph (2)— Paragraph (3) shall cease to have effect. In paragraph (4)— For paragraph (5) there shall be substituted—
Section 43 of the Electricity Act 1989 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows. For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted— For subsection (4) there shall be substituted— In subsection (6)— For subsection (6A) there shall be substituted— Subsection (7) shall cease to have effect.
Section 67 of the Railways Act 1993 (application of monopoly provisions etc. to the Rail Regulator) shall be amended as follows. For subsection (2) (monopoly functions to be exercisable concurrently by the Rail Regulator) there shall be substituted— In subsection (3ZA) for the words “subsection (3)” there shall be substituted “ subsections (2A) and (3) ”. For subsection (4) there shall be substituted— In subsection (7)— In subsection (8)— For subsection (9) there shall be substituted— Subsection (10) shall cease to have effect.
Paragraph 7 applies where the relevant authority is proposing to—
release any undertaking under section 73 or 82 or paragraph 3 or 9 of Schedule 7 (other than in connection with accepting an undertaking under the enactment concerned which varies or supersedes an undertaking under that enactment); or
revoke any order under section 70C, 75, 83 or 84 or paragraph 5, 10 or 11 of Schedule 7 (other than in connection with making an order under the enactment concerned which varies or supersedes an order under that enactment).
In section 87A(1) of the Magistrates’ Court Act 1980 (fine imposed on company) for “section 9 or 124 of the Insolvency Act 1986” substitute “ section 124 of, or paragraph 12 of Schedule B1 to, the Insolvency Act 1986 ”.
Before releasing an undertaking to which this paragraph applies or (as the case may be) revoking an order to which this paragraph applies, the relevant authority shall— A notice under sub-paragraph (1) shall state— If after giving notice under sub-paragraph (1) the relevant authority decides not to proceed with the release or (as the case may be) the revocation, the relevant authority shall give notice of that decision. A notice under sub-paragraph (1) or (3) shall be given by—
As soon as practicable after releasing the undertaking or making the revoking order, the relevant authority shall (except in the case of an order which is a statutory instrument)—
serve a copy of the release of the undertaking on the person who gave the undertaking or (as the case may be) serve a copy of the revoking order on any person identified in the order being revoked as a person on whom a copy of that order should be served; and
publish the release or (as the case may be) the revoking order.
Sub-paragraph (2) applies where the Secretary of State considers that— The Secretary of State may, for any of the purposes mentioned in paragraph 3(2), make an order under this paragraph. 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. An order under this paragraph may contain— An order under this paragraph 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. In this paragraph, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
Sub-paragraph (2) applies where— 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. 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. An order under sub-paragraph (2) may— An order under this paragraph shall come into force at such time as is determined by or under the order. An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force on— 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. In this paragraph, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
For the purposes of this Part a reference under section 22 , 33, 68B or 68C is finally determined if—
the reference is cancelled under section 37(1);
the time within which the CMA is to prepare and publish a report under section 38 in relation to the reference has expired and no such report has been prepared and published;
the report of the CMA under that section contains the decision that—
in relation to a reference under section 22 or 33, there is not an anti-competitive outcome, or
in relation to a reference under section 68B or 68C, there is not a prejudicial outcome;
the report of the CMA under that section contains the decision that— the CMA has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
the report of the CMA under that section contains the decision that— the CMA has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.
in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
For the purposes of this Part the time when a reference under section 22 , 33, 68B or 68C is finally determined is—
in a case falling within subsection (1)(a), the making of the decision concerned;
in a case falling within subsection (1)(b), the expiry of the time concerned;
in a case falling within subsection (1)(c), the publication of the report;
in a case falling within subsection (1)(d), the making of the decision under section 41(2); and
in a case falling within subsection (1)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
For the purposes of section 78 and subject to subsection (4) below, the circumstances in which a person acquires an interest in shares include those where—
he enters into a contract to acquire the shares (whether or not for cash);
he is not the registered holder but acquires the right to exercise, or to control the exercise of, any right conferred by the holding of the shares; or
he—
acquires a right to call for delivery of the shares to himself or to his order or to acquire an interest in the shares; or
assumes an obligation to acquire such an interest.
The circumstances in which a person acquires an interest in shares for the purposes of section 78 do not include those where he acquires an interest in pursuance of an obligation assumed before the publication by the CMA of the reference concerned.
The circumstances in which a person acquires a right mentioned in subsection (3)—
include those where he acquires a right, or assumes an obligation, whose exercise or fulfilment would give him that right; but
do not include those where he is appointed as proxy to vote at a specified meeting of a company or of any class of its members or at any adjournment of the meeting or he is appointed by a corporation to act as its representative at any meeting of the company or of any class of its members.
References to rights and obligations in subsections (3) to (5) include conditional rights and conditional obligations.
References in subsection (1) to a prejudicial outcome are to a prejudicial outcome within the meaning of section 35 or 36 as those sections have effect by virtue of paragraphs 6 and 7 of Schedule 5A.
References in sections 77 and 78 to a person carrying on or having control of any enterprise includes a group of persons carrying on or having control of an enterprise and any member of such a group.
Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of sections 77 and 78 to determine whether any person or group of persons has control of any enterprise and whether persons are associated as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
Section 1159 of, and Schedule 6 to, the Companies Act 2006 shall apply for the purposes of sections 77 and 78 to determine whether a company is a subsidiary of an individual or of a group of persons as they apply to determine whether it is a subsidiary of a company; and references to a subsidiary in paragraph 8 of Schedule 6 as so applied shall be construed accordingly.
Subsections (2) and (2A) apply where a reference under section 22 , 33, 68B or 68C has been made but is not finally determined.
The CMA may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
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Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
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shall continue in force, in accordance with its terms, when adopted;
may be varied or superseded by an undertaking under this section; and
may be released by the Commission.
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an undertaking under this section.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the CMA.
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An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 81 comes into force in relation to that reference.
An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
In this section and section 81 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.
Subsections (2) and (2A) apply where a reference has been made under section 22 , 33, 68B or 68C but is not finally determined.
The CMA may by order, for the purpose of preventing pre-emptive action—
prohibit or restrict the doing of things which the CMA considers would constitute pre-emptive action;
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
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;
do anything which may be done by virtue of paragraph 19 of Schedule 8.
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Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may by order, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects—
do anything mentioned in subsection (2)(b) to (d);
impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
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shall continue in force, in accordance with its terms, when adopted; and
may be varied or revoked by an order under this section.
A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
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An order which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an undertaking under section 80 comes into force in relation to that reference.
An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
The CMA may, in accordance with section 41, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the CMA.
An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 76(1)(b) or 83 comes into force in relation to the subject-matter of the undertaking.
No undertaking shall be accepted under this section in relation to a reference under section 22 , 33, 68B or 68C if an order has been made under—
section 76(1)(b) or 83 in relation to the subject-matter of the undertaking; or
section 84 in relation to that reference.
The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
Subsection (2) applies where the CMA considers that—
an undertaking accepted by it under section 82 has not been, is not being or will not be fulfilled; or
in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the CMA by the person giving the undertaking before the CMA decided to accept the undertaking.
The CMA may, for any of the purposes mentioned in section 41(2), make an order under this section.
Subsections (3) to (5) of section 41 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.
An order under this section may contain—
anything permitted by Schedule 8; and
such supplementary, consequential or incidental provision as the CMA considers appropriate.
An order under this section—
shall come into force at such time as is determined by or under the order;
may contain provision which is different from the provision contained in the undertaking concerned; and
may be varied or revoked by another order.
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The CMA may, in accordance with section 41, make an order under this section.
An order under this section may contain—
anything permitted by Schedule 8; and
such supplementary, consequential or incidental provision as the CMA considers appropriate.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
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No order shall be made under this section in relation to a reference under section 22 , 33, 68B or 68C if an undertaking has been accepted under section 82 in relation to that reference.
Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.
The CMA may advise the Secretary of State or the Chancellor of the Duchy of Lancaster in relation to the taking by either of them of enforcement action under Schedule 7.
An enforcement order may extend to a person’s conduct outside the United Kingdom if (and only if) he is—
a United Kingdom national;
a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
a person carrying on business in the United Kingdom.
Nothing in an enforcement order shall have effect so as to—
cancel or modify conditions in licences granted— by the proprietor of the patent or design; or
under a patent granted under the Patents Act 1977 (c. 37) or a European patent (UK) (within the meaning of the Act of 1977); or
in respect of a design registered under the Registered Designs Act 1949 (c. 88);
require an entry to be made in the register of patents or the register of designs to the effect that licences under such a patent or such a design are to be available as of right.
An enforcement order may prohibit the performance of an agreement already in existence when the order is made.
Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.
Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.
In this Part “enforcement order” means an order made under section 70C, 72, 75, 76, 81, 83 or 84 or under paragraph 2, 5, 6, 10 or 11 of Schedule 7.
An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—
a person specified in the directions; or
the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
Directions fall within this subsection if they are directions—
to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, the enforcement order concerned; or
to do, or refrain from doing, anything so specified or described which the person might be required by that order to do or refrain from doing.
An enforcement order may authorise the person making the order to vary or revoke any directions so given.
The court may by order require any person who has failed to comply with directions given by virtue of this section to comply with them, or otherwise remedy his failure, within such time as may be specified in the order.
Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
An order under subsection (4) or (5) shall be made on the application of the person authorised by virtue of this section to give the directions concerned.
An order under subsection (4) or (5) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
In this section “the court” means—
in relation to England and Wales or Northern Ireland, the High Court; and
in relation to Scotland, the Court of Session.
This section applies in relation to any order under section 70C, 75, 83 or 84 or under paragraph 5, 10 or 11 of Schedule 7.
The order or any explanatory material accompanying the order shall state—
the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;
the date on which the order comes into force;
the possible consequences of not complying with the order; and
the section of this Part under which a review can be sought in relation to the order.
The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
An appropriate authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
In this Part “enforcement undertaking” means an undertaking under section ... 73, 80 or 82 or under paragraph ... 3 or 9 of Schedule 7.
In this section, “appropriate authority” has the same meaning as in section 94AA.
Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.
The CMA shall compile and maintain a register for the purposes of this Part.
The register shall be kept in such form as the CMA considers appropriate.
The CMA shall ensure that the following matters are entered in the register—
the provisions of any enforcement undertaking accepted under this Part;
the provisions of any enforcement order made under this Part;
the details of any variation, release or revocation of such an undertaking or order; and
the details of any consent given by the CMA under section 77(2) or (3) or 78(2) or by the Secretary of State under paragraph 7(2) or (3) or 8(2) of Schedule 7.
The duty in subsection (3) does not extend to anything of which the CMA is unaware.
The Secretary of State shall inform the CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by the Secretary of State, enforcement orders made by them or consents given by the Secretary of State.
The CMA shall ensure that the contents of the register are available to the public—
during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and
subject to such reasonable fees (if any) as the CMA may determine.
If requested by any person to do so and subject to such reasonable fees (if any) as the CMA may determine, the CMA shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.
In subsection (5), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
The CMA shall keep under review—
the carrying out of any enforcement undertaking or any enforcement order; and
compliance with the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
The CMA shall, in particular, from time to time consider—
whether an enforcement undertaking or enforcement order has been or is being complied with;
whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
one or more of the parties to it can be released from it; or
it needs to be varied or to be superseded by a new enforcement undertaking; and
whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—
any possible variation or release by ... the Secretary of State of an enforcement undertaking accepted by ... him;
any possible new enforcement undertaking to be accepted by ... the Secretary of State so as to supersede another enforcement undertaking given to ... the Secretary of State;
any possible variation or revocation by ... the Secretary of State of an enforcement order made by ... the Secretary of State;
any possible enforcement undertaking to be accepted by ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ... the Secretary of State instead of an enforcement undertaking;
the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or
the enforcement by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
The CMA shall take such action as it considers appropriate in relation to—
any possible variation or release by it of an enforcement undertaking accepted by it;
any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
any possible variation or revocation by it of an enforcement order made by it;
any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;
the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or
the enforcement by it by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
The CMA shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
The CMA shall, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (5).
The CMA shall—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
give a copy of any report prepared by it under subsection (6) to the Secretary of State; and
publish the report.
In this section, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
Subsections (2) and (3) apply where—
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the Secretary of State is considering whether to accept undertakings under paragraph ...3 or 9 of Schedule 7.
The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under ... paragraph ... 3 or 9 of Schedule 7.
The Secretary of State may require the CMA to report to the relevant authority on the outcome of the CMA's consultations within such period as the relevant authority may require.
A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under ... paragraph ... 3 or 9 of Schedule 7.
The powers conferred on the relevant authority by subsections (1) to (4) are without prejudice to the power of the relevant authority to consult the persons concerned itself.
If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertaking) in a particular case, the CMA shall give such advice as it considers appropriate.
This section applies to any enforcement undertaking or enforcement order.
Any person to whom such an undertaking or order relates shall have a duty to comply with it.
The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.
Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.
Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.
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Compliance with an undertaking under paragraph ... 3 or 9 of Schedule 7, an order made by the Secretary of State under section 70C(2), paragraph 2 of Schedule 7 or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.
In subsection (8), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 94B at the time of the failure to comply with the undertaking or (as the case may be) order.
The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.
Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.
Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the CMA or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the CMA or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.
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The appropriate authority may, in accordance with section 94AB, impose a penalty on a person— where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.
from whom the authority has accepted an enforcement undertaking, or
to whom an enforcement order is addressed,
In this section and in section 94AB, “the appropriate authority” means—
in relation to an enforcement undertaking or enforcement order made by the Secretary of State under Schedule 7, the Secretary of State;
in relation to any other enforcement undertaking or enforcement order, the CMA.
In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 94B at the time of the failure to comply.
A penalty under section 94AA(1) is to be such amount as the appropriate authority considers appropriate.
The amount must be—
a fixed amount,
an amount calculated by reference to a daily rate, or
a combination of a fixed amount and an amount calculated by reference to a daily rate.
A penalty imposed under section 94AA(1) on a person who does not own or control an enterprise must not—
in the case of a fixed amount, exceed £30,000;
in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
A penalty imposed under section 94AA(1) on any other person must not—
in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
In imposing a penalty by reference to a daily rate—
no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) (as applied by subsection (6)), and
unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person complies with the enforcement undertaking or enforcement order.
Sections 112 to 115 apply in relation to a penalty imposed under section 94AA(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—
any reference in those provisions to the appropriate authority is to be read as a reference to the appropriate authority within the meaning of this section (see section 94AA(2));
section 114(5A) is to be read as if the words “or OFCOM” were omitted;
section 114(12) is to be read as if, for paragraph (b), there were substituted—
The Secretary of State may by regulations amend subsection (3)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
Before making regulations under subsection (7) the Secretary of State must consult—
the CMA, and
such other persons as the Secretary of State considers appropriate.
The Secretary of State may by regulations make provision for determining, for the purposes of this section—
when an enterprise is to be treated as being controlled by a person;
the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
Regulations under subsection (9)(b) may, in particular, make provision as to—
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).
The CMA shall prepare and publish a statement of policy in relation to the exercise of functions under—
section 94 ...; and
section 94AA.
The CMA shall, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 94AA.
The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
A statement or revised statement of policy may not be published under this section unless the Secretary of State approves the statement.
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The CMA must—
monitor compliance with transferred EU merger commitments; and
take such action (if any) under subsection (3) or section 95B as it considers appropriate.
Any person to whom transferred EU merger commitments relate has a duty to comply with those commitments.
Compliance with transferred EU merger commitments is enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.
The rights of the CMA under subsection (3) are not affected by any provisions of transferred EU merger commitments which provide for disputes relating to compliance with the commitments to be resolved by arbitration.
The CMA must ensure that the provisions of transferred EU merger commitments are entered and kept up to date in the register referred to in section 91.
In this Part “transferred EU merger commitments” means EU merger commitments—
which are the subject of an Article 95(2) transfer decision (and, where those commitments are modified by, or as contemplated by, that decision or by a later Article 95(2) transfer decision, means those commitments as so modified); and
which have not been waived or substituted by the European Commission.
In this section—
So far as the context permits or requires, transferred EU merger commitments are to be treated for the purposes of this Part as if—
any reference to the area of the European Union or of the European Economic Area included the United Kingdom;
any reference to the internal market included the United Kingdom;
any reference to a member State included the United Kingdom;
any reference to a party to the EEA agreement included the United Kingdom.
Subsection (8) is subject to any different provision made by the Article 95(2) transfer decision in question.
The CMA may give directions falling within subsection (2) to—
a person specified in the directions; or
the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
Directions fall within this subsection if they are directions—
to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, transferred EU merger commitments; or
to do, or refrain from doing, anything so specified or described which the person is required by transferred EU merger commitments to do or refrain from doing.
The CMA may vary or revoke any directions so given.
Directions under this section may extend to a person’s conduct outside the United Kingdom if (and only if) the person is—
a person bound by the transferred EU merger commitments concerned;
a United Kingdom national;
a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
a person carrying on business in the United Kingdom.
The court may by order require any person who has failed to comply with directions given under this section to comply with them, or otherwise remedy the failure, within such time as may be specified in the order.
Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
An order under subsection (5) or (6) may only be made on the application of the CMA.
An order under subsection (5) or (6) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
In this section “the court” means—
in relation to England and Wales or Northern Ireland, the High Court; and
in relation to Scotland, the Court of Session.
The Secretary of State must give the CMA a notice (a “foreign state intervention notice”) if the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—
a foreign state newspaper merger situation has been created, or
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
A foreign state intervention notice must describe the foreign state newspaper merger situation to which it relates.
For the purposes of this Chapter a foreign state newspaper merger situation has been created where—
as a result of two or more enterprises ceasing to be distinct, a relevant merger situation would have been created by virtue of section 23(1) if the modifications in Schedule 6A had effect,
one of the enterprises concerned is a newspaper enterprise, and
as a result of the enterprises ceasing to be distinct, a foreign power is able to control or influence the policy of the person carrying on the newspaper enterprise, or is able to control or influence that policy to a greater extent.
Schedule 6B makes provision about the circumstances in which a foreign power is able to control or influence the policy of a person for the purposes of this section (and references to a foreign power being able to control or influence the policy of a person to a greater extent are to be interpreted accordingly).
A foreign state intervention notice—
comes into force when it is given, and
ceases to be in force when the matter to which it relates is finally determined under this Chapter (see section 70F).
Where the Secretary of State gives the CMA a foreign state intervention notice, the CMA must, within such period as the Secretary of State may require, give the Secretary of State a report in relation to the case.
The report must include—
a summary of representations relevant to the case that have been received by the CMA, and
a decision as to whether the CMA believes that—
a foreign state newspaper merger situation has been created, or
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
The CMA must carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
For the purposes of its investigation the CMA must invite representations from the enterprises concerned in the case.
Subsection (2) applies where the Secretary of State has received a report under section 70B stating that the CMA believes that—
a foreign state newspaper merger situation has been created, or
arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
The Secretary of State must make an order containing such provision as the Secretary of State considers reasonable and practicable for the purposes of reversing or preventing the creation of the foreign state newspaper merger situation identified in the report.
An order under subsection (2) may contain—
anything permitted by Schedule 8 (provision that may be contained in certain enforcement orders), and
such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.
An order under subsection (2)—
comes into force at such time as is determined by or under the order, and
may be varied or revoked by another order.
Paragraph 2 of Schedule 7 (enforcement regime for public interest and special public interest cases: order for the purposes of preventing pre-emptive action)—
applies in relation to a foreign state intervention notice as it applies in relation to an intervention notice, and
for this purpose, is to be read as if—
sub-paragraph (10) were omitted;
In this paragraph “pre-emptive action” means action which might prejudice a foreign state intervention notice or a report under section 70B, or might impede the taking of any action under this Part in relation to such a notice or report
Nothing in this Chapter limits the exercise of powers in relation to a foreign state newspaper merger situation under other provisions of this Part.
The powers in this Chapter may be exercised in relation to a foreign state newspaper merger situation regardless of whether any other power under this Part has been exercised in relation to the case.
The CMA must, in considering whether to make a reference under section 22 or 33, bring to the attention of the Secretary of State any case which it believes may be relevant to the duty in section 70A(1).
In this Chapter, “foreign power” means—
the sovereign or other head of a foreign state in their public or private capacity,
a foreign government or part of a foreign government,
the head or senior members of a foreign government in their private capacity,
an agency or authority of a foreign government, or of part of a foreign government,
the head or senior members of an agency or authority of a foreign government, or of part of a foreign government, in their private capacity,
an authority responsible for administering the affairs of an area within a foreign country or territory, or persons exercising the functions of such an authority,
a political party which is a governing political party of a foreign government, or
the officers of a political party, which is a governing political party of a foreign government, in their private capacity.
A political party is a governing political party of a foreign government if persons holding political or official posts in the foreign government or part of the foreign government—
hold those posts as a result of, or in the course of, their membership of the party, or
in exercising the functions of those posts, are subject to the direction or control of, or significantly influenced by, the party.
In this section—
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For the purposes of this Chapter, a matter is finally determined when the Secretary of State—
makes an order under section 70C(2), or
publishes under section 107 a report of the CMA under section 70B which the Secretary of State has received and which states that the CMA has decided that the CMA believes that—
no foreign state newspaper merger situation has been created, or
no arrangements are in progress or in contemplation which, if carried into effect would result in the creation of a foreign state newspaper merger situation.
The Secretary of State may by regulations change the meaning of— for the purposes of this Chapter.
“foreign power”, or
“newspaper”,
Regulations under subsection (1)(a) may, among other things—
provide for a description of person to be treated as if they were not a foreign power, and
frame any such description by reference to—
the independence of persons from other descriptions of foreign power, or
the interest which persons have in a newspaper enterprise.
The Secretary of State may by regulations apply any provision made by or under Chapter 1, with or without modifications, for the purposes of this Chapter (including by way of amendments to the modifications in Schedule 6A).
Regulations under this section may, among other things, make provision having effect on or after 13 March 2024.
A person authorised to do so by regulations under section 101 may give notice to the CMA of arrangements or proposed arrangements which might have resulted or might result in the creation of a relevant merger situation.
Any such notice (in this Part a “merger notice”)—
shall be in the prescribed form;
shall state that the existence of the proposal has been made public.
shall contain the prescribed information; and
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arrangements of which notice is given under subsection (1) above or arrangements which do not differ from them in any material respect; or
the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect;
Where the CMA is satisfied that a merger notice meets the requirements of subsection (2), it shall give notice to that effect to the person who gave the merger notice.
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In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the CMA by notice having effect for the time being and published online.
In this Part “notified arrangements” means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.
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The period for considering a merger notice is, subject as follows, the period of 20 days beginning with the first day after—
the notice has been received by the OFT; and
any fee payable by virtue of section 121 to the OFT in respect of the notice has been paid.
Where no intervention notice is in force in relation to the matter concerned, the OFT may by notice to the person who gave the merger notice extend by a further 10 days the period for considering the merger notice.
Where an intervention notice is in force in relation to the matter concerned and there has been no extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend by a further 20 days the period for considering the merger notice.
Where an intervention notice is in force in relation to the matter concerned and there has been an extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend the period for considering the merger notice by a further number of days which, including any extension already made under subsection (2), does not exceed 20 days.
The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT considers that the person has failed to provide, within the period stated in a notice under section 99(2) and in the authorised or required manner, information requested of him in that notice.
An extension under subsection (5) shall be for the period until the person concerned provides the information to the satisfaction of the OFT or, if earlier, the cancellation by the OFT of the extension.
The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT is seeking undertakings under section 73 or (as the case may be) the Secretary of State is seeking undertakings under paragraph 3 of Schedule 7.
An extension under subsection (7) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—
the giving of the undertakings concerned;
the expiry of the period of 10 days beginning with the first day after the receipt by the OFT of a notice from the person from whom the undertakings are being sought stating that he does not intend to give the undertakings; or
the cancellation by the OFT of the extension.
The Secretary of State may by notice to the person who gave the merger notice extend the period for considering a merger notice if, by virtue of paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.
An extension under subsection (9) shall be for the period of the delay.
The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(3) of the European Merger Regulations (but is not yet proceeding with the matter in pursuance of such a request).
An extension under subsection (11) shall be for the period beginning with the receipt of the notice under that subsection and ending with the receipt of a notice under subsection (13).
The OFT shall, in connection with any notice given by it under subsection (11), by notice inform the person who gave the merger notice of the completion by the European Commission of its consideration of the request of the United Kingdom.
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A notice under section 97(2), (3), (4), (5), (7), (9) or (11) shall be given, before the end of the period for considering the merger notice, to the person who gave the merger notice.
A notice under section 97(5)—
shall also be given within 5 days of the end of the period within which the information is to be provided and which is stated in the notice under section 99(2); and
shall also inform the person who gave the merger notice of—
the OFT’s opinion as mentioned in section 97(5); and
the OFT’s intention to extend the period for considering a merger notice.
In determining for the purposes of section 97(1), (2), (3), (4) or (8)(b) or subsection (2)(a) above any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of—
Saturday, Sunday, Good Friday and Christmas Day; and
any day which is a bank holiday in England and Wales.
Any reference in this Part (apart from in section 97(1) and section 99(1)) to the period for considering a merger notice shall, if that period is extended by virtue of any one or more of subsections (2), (3), (4) (5), (7), (9) and (11) of section 97 in relation to a particular case, be construed in relation to that case as a reference to that period as so extended; but only one extension is possible under section 97(2), (3) or (4).
Where the period for considering a merger notice is extended or further extended by virtue of section 97, the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (7) applies where—
the period for considering a merger notice is further extended;
the further extension and at least one previous extension is made under one or more of subsections (5), (7), (9) and (11) of section 97; and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
The CMA shall, so far as practicable and when the initial period (within the meaning of section 34ZA) begins in relation to the merger notice, take such action as the CMA considers appropriate to bring— to the attention of those whom the CMA considers would be affected if the arrangements were carried into effect.
the existence of the proposal;
the fact that the merger notice has been given; and
the date on which the period for considering the notice may expire;
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the information required;
the period within which the information is to be provided; and
the possible consequences of not providing the information within the stated period and in the authorised or required manner.
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The CMA may, at any time before the end of the initial period (within the meaning of section 34ZA) in relation to a merger notice, reject the notice if—
the OFT suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;
the CMA suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;
the OFT suspects that it is not proposed to carry the notified arrangements into effect;
the CMA suspects that it is not proposed to carry the notified arrangements into effect; or
any prescribed information is not given in the merger notice or any information requested by notice under subsection (2) is not provided as required; or
any prescribed information is not given in the merger notice or the person who gave the merger notice has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case concerned; ...
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In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—
any person who, for the purposes of section 127, is associated with him; or
any subsidiary of the person who gave the merger notice or of any person so associated with him.
Sections 22(3)(za) and 33(3)(za) do not prevent any reference being made under section 22 , 33, 68B or 68C if—
before the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice, the CMA rejects the notice under section 99(5);
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any information (whether prescribed information or not) that— is not disclosed to the CMA ...;
is, or ought to be, known to the person who gave the merger notice or any connected person; and
is material to the notified arrangements;
at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;
the six months beginning with the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;
the merger notice is withdrawn; or
any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.
Subsection (3) applies where—
two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under section 22 , 33, 68B or 68C as having occurred simultaneously on a particular date; and
sections 22(3)(za) and 33(3)(za) do not prevent such a reference in relation to the last of those transactions.
Sections 22(3)(za) and 33(3)(za) do not not prevent such a reference in relation to any of those transactions which actually occurred less than six months before—
that date; or
the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).
In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.
The Secretary of State may make regulations for the purposes of sections 96 to 100.
The regulations may, in particular—
provide for ... section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;
provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;
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of the fact that the OFT is satisfied as to the provision of the information requested by the OFT or (as the case may be) of the OFT’s decision to cancel the extension; and
of the time at which the OFT is to be treated as so satisfied or (as the case may be) of the time at which the cancellation is to be treated as having effect;
provide for the person who gave the merger notice to be informed, in circumstances in which section 97(8) applies—
of any decision by the OFT to cancel the extension; and
of the time at which such a cancellation is to be treated as having effect;
provide for the time at which any fee is to be treated as paid;
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The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.
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In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.
The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
any restrictions imposed by any timetable for making the decision; and
any need to keep what is proposed, or the reasons for it, confidential.
The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
In this section—
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and
“subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 and includes an instrument made under—
Tribunal rules may make provision for the carrying out by the Tribunal of a preliminary consideration of proceedings (a “pre-hearing review”). That provision may include— For the purposes of sub-paragraph (2)(b)—
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. That provision may include provision—
Tribunal rules may provide for the Tribunal to make an order, on an interim basis— Tribunal rules may also make provision giving the Tribunal powers similar to those given to the CMA by section 35 of the 1998 Act.
Sub-paragraphs (2) and (3) apply where— No relevant person shall, without the consent of the Secretary of State— 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). 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. The consent of the Secretary of State under sub-paragraph (2) or (3)— 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. Sub-paragraphs (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is— For the purpose of this paragraph a reference under section 45(2) or (3) is finally determined if— For the purpose of this paragraph a reference under section 62(2) is finally determined if— 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— In this paragraph “relevant person” means—
An order may— An order made by virtue of sub-paragraph (1) shall not— 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.
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The person who is President of the Competition Commission Appeal Tribunals (under paragraph 4 of Schedule 7 to the 1998 Act) immediately before the commencement of section 12 is on that date to become the President of the Competition Appeal Tribunal as if duly appointed under that section, on the same terms.
Subject to paragraphs 15 to 18, the old law shall continue to apply in relation to any monopoly reference made before the appointed day under section 50 or 51 of the 1973 Act. No person has to comply on or after the appointed day with a requirement imposed before that day under section 44 of the 1973 Act. In this paragraph—
Subject to sub-paragraph (2), the repeals made by section 207 do not affect— No designation order (whenever made) shall have any effect in relation to any period of time after the end of the transitional period. Subject to sub-paragraph (2) a designation order may be made after the end of the transitional period on an application mentioned in sub-paragraph (1)(a). For the purposes of this paragraph—
The Public Records Act 1958 is amended as follows. In Part 2 of the Table at the end of paragraph 3 of Schedule 1 (definition of public records)—
The Consumer Credit Act 1974 is amended as follows. In section 1 (general functions of Director)— and in the heading before that section, for “DIRECTOR GENERAL OF FAIR TRADING” there is substituted “ OFFICE OF FAIR TRADING ”. In section 2 (powers of Secretary of State)— In section 4 (dissemination of information and advice)— In section 6 (form etc. of applications)— In section 7 (penalty for false information), for “Director” (in each place) there is substituted “ OFT ”. In section 22 (standard and group licences)— In section 25 (licensee to be a fit person)— In section 27 (determination of applications)— In section 28 (exclusion from a group licence)— In section 29 (renewal)— In section 30 (variation by request)— In section 31 (compulsory variation)— In section 32 (suspension and revocation)— In section 33 (application to end suspension)— In section 34 (representations to Director)— In section 35 (the register)— In section 36 (duty to notify changes)— In section 39 (offences against Part 3), for “Director” there is substituted “ OFT ”. In section 40 (enforcement of agreements made by unlicensed trader)— In section 41 (appeals to Secretary of State under Part 3), in subsection (1), for “Director” there is substituted “ OFT ”. In section 49 (prohibition of canvassing debtor-creditor agreements off trade premises), for “Director” (in each place) there is substituted “ OFT ”. In section 60 (form and content of agreements), in subsections (3) and (4), for “Director” (in each place) and “he” (in each place) there is substituted “ OFT ” and “ it ” respectively. In section 64 (duty to give notice of cancellation rights), for “Director” (in each place) there is substituted “ OFT ”. In section 74 (exclusion of certain agreements from Part 5)— In section 101 (right to terminate hire agreement), in subsection (8), for “Director” (in each place) and “he” there is substituted “ OFT ” and “ it ” respectively. In section 113 (Act not to be evaded by use of security), in subsection (2), for “Director” there is substituted “ OFT ”. In section 148 (agreement for services of unlicensed trader)— In section 149 (regulated agreements made on introductions by unlicensed credit-broker)— In section 159 (correction of wrong information), for “Director” there is substituted “ OFT ”. In section 160 (alternative procedure for business consumers)— In section 161 (enforcement authorities)— In section 162 (powers of entry and inspection), in subsection (5), for “Director” there is substituted “ OFT ”. In section 166 (notification of convictions and judgments to Director), for “Director” (in each place), “Director’s” and “his” there is substituted “ OFT ”, “ OFT’s ” and “ its ” respectively. In section 170 (no further sanctions for breach of Act), for “his”, “Director” and “him” there is substituted “ its ”, “ OFT ” and “ it ” respectively. In section 173 (contracting-out forbidden), in subsection (3), for “Director” there is substituted “ OFT ”. In section 183 (determinations etc. by Director), for “Director” (in both places) and “him” there is substituted “ OFT ” and “ it ” respectively. In section 189 (general interpretation provisions)— In section 191 (special provisions as to Northern Ireland)— In Schedule 1 (prosecution and punishment of offences), in the entry relating to section 7, for “Director” there is substituted “ OFT ”.
The Estate Agents Act 1979 is amended as follows. In section 3 (orders prohibiting unfit persons from doing estate agency work)— and in the cross-heading before that section, for “Director General of Fair Trading” there is substituted “ Office of Fair Trading ”. In section 4 (warning orders)— In section 5 (supplementary provisions as to orders under sections 3 and 4), for “Director” (in each place) there is substituted “ OFT ”. In section 6 (revocation and variation of orders under sections 3 and 4)— In section 7 (appeals), in subsection (1), for “Director” (in both places) there is substituted “ OFT ”. In section 8 (register of orders etc.)— In section 9 (information for the Director)— In— for “Director” there is substituted “ OFT ”. In section 17 (exemptions from section 16)— In— for “Director” there is substituted “ OFT ”. In section 25 (general duties of Director)— In section 26 (enforcement authorities)— In— for “Director” (in each place) there is substituted “ OFT ”. In section 33 (general interpretation provisions)— In Schedule 2 (procedure etc.)—
The Agricultural Marketing (Northern Ireland) Order 1982 is amended as follows. For article 23 (action following report by Commission) there is substituted— In article 42 (action following report by Commission)—
The Gas Act 1986 is amended as follows. In section 4B (exceptions from sections 4AA to 4A), in subsection (3), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 24 (licence modification references to Commission)— After section 24 there is inserted— In section 25 (reports on licence modification references)— In section 26A (Commission’s power to veto modifications following report)— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 34 (general functions), in subsection (4)— In section 35 (publication of information and advice), after subsection (3) there is inserted— In section 36A (functions with respect to competition)— In section 41E (references to Commission about activities which are not licensable), subsections (7) and (8) shall cease to have effect. After section 41E there is inserted— In section 41F (reports on references under section 41E)— In section 62 (exclusion of certain agreements from Restrictive Trade Practices Act 1976), for “the Director General of Fair Trading” (in both places) there is substituted “ the Office of Fair Trading ”.
The Copyright, Designs and Patents Act 1988 is amended as follows. In section 144 (powers exercisable in consequence of report of Commission) for subsections (1) and (2) there is substituted— In section 144(3)— In section 238 (powers exercisable for protection of the public interest), for subsections (1) and (2) there is substituted— In Schedule 2A, in paragraph 17 (powers exercisable in consequence of competition report)—
The Companies Act 1989 is amended as follows. In section 47 (restrictive practices), in subsection (3)(c), for “Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. The Office of Fair Trading. In Schedule 14 (supervisory and qualifying bodies: restrictive practices)—
The Broadcasting Act 1990 is amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 194A (relevant agreements)— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Tribunals and Inquiries Act 1992 is amended as follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 14 (restricted application of Act in relation to certain tribunals), in subsection (1)(b), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In Part 1 of Schedule 1 (tribunals under direct supervision of council), in column 2—
The Railways Act 1993 is amended as follows. In section 4 (general duties of the Secretary of State and the Regulator)— In section 13 (licence modification references to Commission)— After section 13 there is inserted— In section 14 (reports on licence modification references)— In section 15C (provisions supplementary to Commission’s power to veto modifications following report), for subsections (1) and (2) there is substituted— In section 22 (amendment of access agreements), in subsection (6A), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”. In section 66 (amendments of the Fair Trading Act 1973)— In section 67 (respective functions of the Regulator and the Director General of Fair Trading, and functions of the Competition Commission)— In section 69 (general functions), in subsection (3), for “the Director” (in both places) there is substituted “ the OFT ”. In section 71 (publication of information and advice), in subsection (3)— In section 74(7) (annual and other reports of the Regulator), for “Section 125(1) of the 1973 Act (annual and other reports)” there is substituted “ Paragraph 12A(1) of Schedule 7 to the Competition Act 1998 (annual reports of the Competition Commission) ”. In section 83(1)— In section 145 (general restrictions on disclosure of information)— In Schedule 4A (review of access charges by Regulator)—
The Airports (Northern Ireland) Order 1994 is amended as follows. In Article 35 (supplementary provisions relating to references to the Commission), paragraphs (3) and (3A) shall cease to have effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Gas (Northern Ireland) Order 1996 is amended as follows. In Article 15 (licence modification references to Commission)— After Article 15 there is inserted— In Article 16 (reports on licence modification references)— In Article 23 (functions with respect to competition)— In Article 27 (general functions), in paragraph (3)— In Article 28 (publication of information and advice), for paragraph (3) there is substituted— In Article 41(2) (exclusion of certain agreements from Restrictive Trade Practices Act 1976), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”.
The Greater London Authority Act 1999 is amended as follows. In section 235 (restrictions on disclosure of information)—
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Sub-paragraph (2) applies where— 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. The consent of the Secretary of State under sub-paragraph (2)— 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. Sub-paragraph (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is— In this paragraph— 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— For the purposes of the definition of “relevant period” in sub-paragraph (6), a reference under section 62(3) is finally determined if— 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— 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. In its application by virtue of sub-paragraph (10) section 79 shall have effect as if—
An order may prohibit the withholding from any person of— References in sub-paragraph (1) to withholding include references to—
The person who is Registrar of Appeal Tribunals (under paragraph 5 of Schedule 8 to the 1998 Act) immediately before the commencement of section 12 is on that date to become the Registrar of the Competition Appeal Tribunal as if duly appointed under that section, on the same terms.
An order may prohibit requiring as a condition of the supply of goods or services to any person—
the buying of any goods;
the making of any payment in respect of services other than the goods or services supplied;
the doing of any other such matter or the refraining from doing anything mentioned in paragraph (a) or (b) or any other such matter.
Any person who is a member of the Competition Commission appeal panel (but not a member of the panel of chairmen) immediately before the commencement of section 12 is on that date to become a member of the Competition Appeal Tribunal, on such terms and for such a period as the Secretary of State may determine.
An order may prohibit—
discrimination between persons in the prices charged for goods or services;
anything which the relevant authority considers to be such discrimination;
procuring others to do anything which is such discrimination or which the relevant authority considers to be such discrimination.
Any member of the Competition Commission appeal panel who is, immediately before the commencement of section 12, a member of the panel of chairmen under paragraph 26 of Schedule 7 to the 1998 Act is on that date to become a chairman of the Competition Appeal Tribunal, on such terms and for such a period as the Lord Chancellor may determine.
An order may prohibit—
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;
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;
procuring others to do anything mentioned in paragraph (a) or (b).
Nothing in paragraph 7, 8, 9 or 10 applies to any person who, before the commencement of section 12, gives notice to the Secretary of State stating that he does not wish that paragraph to apply to him.
An order may prohibit—
charging, for goods or services supplied, prices differing from those in any published list or notification;
doing anything which the relevant authority considers to be charging such prices.
An order may regulate the prices to be charged for any goods or services. 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. 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.
An order may prohibit the exercise of any right to vote exercisable by virtue of the holding of any shares, stock or securities.
A pre-commencement bankrupt is , subject to sub-paragraphs (2) and (3), discharged from bankruptcy at whichever is the earlier of— An order made under section 279(3) of that Act before commencement— Section 279(3) to (5) of that Act as substituted by section 256 of this Act shall have effect after commencement in relation to the period mentioned in sub-paragraph (1)(a) or (b) above.
This paragraph applies where— If the income payments order specifies a date after which it is not to have effect, it shall continue in force until that date (and then lapse). But the court may on the application of the pre-commencement bankrupt—
After section 350(3) of the Insolvency Act 1986 (c. 45) (bankruptcy offences: general: no liability after discharge) there shall be inserted—
The following shall be inserted after section 389A of that Act (authorisation of nominees and supervisors)—
At the end of section 360 of that Act (obtaining credit and doing business) there shall be inserted—
“foreign government” means the government of a foreign country or territory;
A person is not eligible for appointment as President unless— and he appears to the Lord Chancellor to have appropriate experience and knowledge of competition law and practice. A person is not eligible for appointment as a chairman unless— and he appears to the Lord Chancellor to have appropriate experience and knowledge (either of competition law and practice or any other relevant law and practice). Before appointing an advocate or solicitor in Scotland under this paragraph, the Lord Chancellor must consult the Lord President of the Court of Session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
If, where any person ceases to hold office as President, a chairman or ordinary member, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, the Competition Service shall pay to him such amount by way of compensation as the Secretary of State may determine.
The members appointed as President or as chairmen shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The President and the chairmen may resign their offices by notice in writing to the Lord Chancellor. The Lord Chancellor may remove a person from office as President or chairman on the ground of incapacity or misbehaviour. The Lord Chancellor may remove a person from office as President under sub-paragraph (4) only with the concurrence of all of the following— The Lord Chancellor may remove a person from office as chairman under sub-paragraph (4) only with the concurrence of the appropriate senior judge. The appropriate senior judge is the Lord Chief Justice of England and Wales, unless—
If the President is absent or otherwise unable to act the Lord Chancellor may appoint as acting President any person qualified for appointment as a chairman.
Subsection (2) applies where the CMA—
is preparing—
a report under section 50 on a reference which specifies a media public interest consideration; or
a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and
is not under a duty to disregard the consideration concerned.
The CMA shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger situation or special merger situation concerned and so far as such consultation is practicable.
Any consultation of the kind mentioned in subsection (2) may be undertaken by the CMA by consulting such representative sample of the public or section of the public concerned as the CMA considers appropriate.
Where the CMA decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 , 33, 68B or 68C, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
Subsections (1) and (1A) do not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.
Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
The CMA shall give the ... OFCOM—
such information in its possession as ...OFCOM may reasonably require to enable the ...OFCOM to carry out its functions under this Part; and
any other assistance which the ... OFCOM may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the CMA to give.
The CMA shall give the OFCOM any information in its possession which has not been requested by the ... OFCOM but which, in the opinion of the CMA, would be appropriate to give to the ... OFCOM for the purpose of assisting it in carrying out its functions under this Part.
The CMA and OFCOM shall give the Secretary of State—
such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and
any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the CMA or (as the case may be) OFCOM to give.
OFCOM shall give the CMA —
such information in their possession as the CMA may reasonably require to enable the CMA to carry out its functions under this Part; and
any other assistance which the CMA may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.
The CMA and OFCOM shall give the Secretary of State any information in their possession which has not been requested by the Secretary of State but which, in the opinion of the CMA or (as the case may be) OFCOM, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.
The CMA shall have regard to any information given to it under subsection (3A) or (4A); and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).
OFCOM shall give the CMA any information in their possession which has not been requested by the CMA but which, in the opinion of OFCOM, would be appropriate to give to the CMA for the purpose of assisting it in carrying out its functions under this Part.
Any direction given under subsection (5)—
shall be in writing; and
may be varied or revoked by a subsequent direction.
OFCOM shall have regard to any information given to them under subsection (3) or (4); ...
... The CMA shall prepare and publish general advice and information about—
the making and consideration by it of references under section 22 , 33, 68B or 68C, and
the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.
The CMA may at any time publish revised, or new, advice or information.
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Advice and information published under this section shall be prepared with a view to—
explaining relevant provisions of this Part to persons who are likely to be affected by them; and
indicating how the CMA or (as the case may be) the Commission expects such provisions to operate.
Advice (or information) published by virtue of subsection (1) ... may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a function conferred by this Part.
Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.
In preparing any advice or information under this section, the CMA shall consult such persons as it considers appropriate.
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The CMA shall publish—
any reference made by it under section 22 or 33 or any decision made by it not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33);
any decision made by it that the duty to make a reference under section 22(1), 33(1), 68B or 68C applies and any such reference made by it;
any decision made by it that the duty to make such a reference does not apply (other than a decision made by virtue of section 33(2)(b) or 68C(2)(a));
such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;
any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;
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any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3);
any enforcement order made by it under section 72 ... or paragraph 2 of Schedule 7;
any extension by it under section 34ZB of the initial period;
any variation, release or revocation of an order mentioned in paragraph (e)
any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b);
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any variation made by it under section 37 of a reference under section 22 , 33, 68B or 68C;
any notice given by it under section 73A(2)(b);
any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73;
any decision made by it to cancel an extension as mentioned in section 73A(11)(b);
any notice given by it under section 96(2A).
The CMA shall also publish—
any cancellation by it under section 37(1) of a reference under section 33 or 68C;
any decision made by it under section 37(2) to treat a reference under section 22 or 68B as if it had been made under section 33 or 68C or to treat a reference under section 33 or 68C as if it had been made under section 22 or 68B;
any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;
any decision made by it to cancel an extension as mentioned in section 39(7A)(b) or (8)(b);
any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;
any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged;
any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;
any decision made by it to cancel an extension as mentioned in section 41A(7)(b);
any decision made by it under section 49(1) to treat—
a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;
any decision made by it under section 51(7A)(b) or (8)(b) to cancel such an extension;
any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;
any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;
any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;
any decision made by it as mentioned in section 76(6)(b);
any enforcement order made by it under section 76 or 81;
any enforcement undertaking accepted by it under section 80;
any variation, release or revocation of such an order or undertaking; and
any decision made by it to dispense with the requirements of Schedule 10.
The Secretary of State shall publish—
any intervention notice or special intervention notice given by him;
any report of the CMA under section 44 or 61 which has been received by him;
any reference made by him under section 45 or 62 or any decision made by him not to make such a reference;
any report of OFCOM under section 44A or 61A which has been received by him;
any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;
any report of the CMA under section 50 or 65 which has been received by him;
any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;
any notice given by him under section 56(1);
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any foreign state intervention notice given by the Secretary of State;
any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and
any report of the CMA under section 70B which the Secretary of State has received;
any decision made by him to dispense with the requirements of Schedule 10.
any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and
any decision made by him to dispense with the requirements of Schedule 10.
Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
Subsections (4) and (5) shall not apply in relation to—
any decision published under subsection (1)(aaa), or
any information published under subsection (1)(c).
The Secretary of State shall publish his reasons for—
any decision made by him under section 54(2) or 66(2); or
any decision made by him under section 54(2) or 66(2); or
any decision to make an order under section 58(3) or vary or revoke such an order.
any decision to make an order under section 58(3) or vary or revoke such an order.
Such reasons may be published after— if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.
in the case of subsection (7)(a), the publication of the decision concerned; and
in the case of subsection (7)(a), the publication of the decision concerned; and
in the case of subsection (7)(b), the making of the order or of the variation or revocation;
in the case of subsection (7)(b), the making of the order or of the variation or revocation;
The Secretary of State shall publish—
the report of the OFT under section 44 in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and
the report of the CMA under section 44 and any report of OFCOM under section 44A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and
the report of the Commission under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.
the report of the CMA under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.
The Secretary of State shall publish—
the report of the OFT under section 61 in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and
the report of the CMA under section 61, and any report of OFCOM under section 61A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and
the report of the Commission under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.
the report of the CMA under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.
Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the Commission’s report under section 50 or (as the case may be) 65, before each House of Parliament.
Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the CMA's report under section 50 or (as the case may be) 65, before each House of Parliament
The Secretary of State must publish any report of the CMA under section 70B which the Secretary of State has received within the period of 7 days beginning with the day on which the Secretary of State receives the report.
The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C).
The Secretary of State may at any time publish revised, or new, advice or information.
Advice or information published under this section shall be prepared with a view to—
explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and
indicating how the Secretary of State expects this Part to operate in relation to such considerations.
Any advice or information published by the Secretary of State under this section shall be published in such manner as the Secretary of State considers appropriate.
In preparing any advice or information under this section, the Secretary of State shall consult the CMA, OFCOM and such other persons as he considers appropriate.
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the CMA, OFCOM or the Secretary of State in the exercise of any of their functions under this Part.
OFCOM may, in connection with any case on which they are required to give a report by virtue of section 44A or 61A, give such advice as they consider appropriate to the Secretary of State in relation to—
any report made in such a case by the CMA under section 50 or 65; and
the taking by the Secretary of State of enforcement action under Schedule 7.
OFCOM may, if requested to do so by the Secretary of State, give such other advice as they consider appropriate to the Secretary of State in connection with any case on which they are required to give a report by virtue of section 44A or 61A.
OFCOM shall publish any advice given by them under this section but advice given by them in relation to a report of the CMA under section 50 or 65 or related enforcement action shall not be published before the report itself is published.
The CMA may, for a permitted purpose, give notice to any person requiring him—
to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and
to give evidence to the CMA or a person nominated by the CMA for the purpose.
For the purposes of this section, the permitted purposes are the following—
assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 22 , 33, 68B or 68C;
assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 45 or 62 or a foreign state intervention notice under section 70A.
The CMA may, for a permitted purpose, give notice to any person requiring him—
to produce any documents which—
are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and
are in that person’s custody or under his control; and
to produce them at a time and place so specified and to a person so specified.
The CMA may, for a permitted purpose, give notice to any person who carries on any business requiring him—
to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and
to supply it at a time and place, and in a form and manner, so specified and to a person so specified.
A notice under this section shall—
specify the permitted purpose for which the notice is given, including the function or functions in question; and
include information about the possible consequences of not complying with the notice.
The CMA, or any person nominated by it for the purpose, may for a permitted purpose take evidence on oath, and for that purpose may administer oaths.
The person to whom any document is produced in accordance with a notice under this section may, for a permitted purpose, copy the document so produced.
No person shall be required under this section—
to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or
to supply any information which he could not be compelled to supply in evidence in such proceedings.
No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.
In this section “the court” means—
in relation to England and Wales or Northern Ireland, the High Court; and
in relation to Scotland, the Court of Session.
In subsection (A1), “enforcement functions” means—
in relation to the CMA—
functions conferred by virtue of section 87 on the CMA by enforcement orders;
functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
functions of the CMA under or by virtue of section 75, 76, 83 or 92 in relation to enforcement undertakings or enforcement orders;
in relation to the Secretary of State—
functions conferred by virtue of section 87 on the Secretary of State by enforcement orders;
functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
functions of the Secretary of State under or by virtue of paragraph 5, 6 or 10 of Schedule 7 in relation to enforcement undertakings or enforcement orders.
The CMA may impose a penalty on a person in accordance with section 111 where the CMA considers that—
the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109;
the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 109(6);
the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 109.
The CMA may proceed (whether at the same time or at different times) under subsection (1)(a) and section 39(4) or (as the case may be) 51(4) (including that enactment as applied by section 65(3)) in relation to the same failure.
The appropriate authority may impose a penalty on a person in accordance with section 111 where the authority considers that—
the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part;
the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part.
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In this section, and in sections 111 to 117, “the appropriate authority” means—
the CMA;
the Secretary of State;
OFCOM.
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But the appropriate authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 if the person has, by reason of that act or omission, been found guilty of that offence.
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on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
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In deciding whether and, if so, how to proceed under subsection (1) or (1A) or section 39(4) or 51(4) (including that enactment as applied by section 65(3))—
the CMA must have regard to the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;
OFCOM must have regard to the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.
The reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
Any power exercisable by the CMA under section 109 for “permitted purposes” (as mentioned in subsection (A1) of that section) is also exercisable by the CMA under that section for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B.
A penalty imposed under section 110(1) or (1A) shall be of such amount as the appropriate authority considers appropriate.
The amount may, in the case of a penalty imposed under section 110(1)(a), be a fixed amount, an amount calculated by reference to a daily rate or a combination of a fixed amount and an amount calculated by reference to a daily rate.
The amount shall, in the case of a penalty imposed under section any of section 110(1)(b), (c) or (1A), be a fixed amount.
A penalty imposed under section 110(1) or (1A) on a person who does not own or control an enterprise must not—
in the case of a fixed amount, exceed £30,000;
in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; and
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day ....
In imposing a penalty by reference to a daily rate—
no account shall be taken of any days before the service of the provisional penalty notice under section 112(A1) on the person concerned; and
unless the appropriate authority determines an earlier date (whether before or after the penalty is imposed), the amount payable shall cease to accumulate at the beginning of the earliest of the following days—
the day on which the requirement of the notice concerned under section 109 is satisfied ...;...
... the day which is the relevant day in the case in question for the purposes of section 110A.
in a case where the penalty is imposed in connection with the provision by the CMA of assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the day on which the overseas regulator no longer requires that assistance.
A penalty imposed under section 110(1) or (1A) on any other person must not—
in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
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in the case of a fixed amount, an amount exceeding £30,000;
in the case of an amount calculated by reference to a daily rate, an amount per day exceeding £15,000; and
in the case of a fixed amount and an amount calculated by reference to a daily rate, a fixed amount exceeding £30,000 and an amount per day exceeding £15,000.
Before making regulations under subsection (7A) the Secretary of State shall consult the CMA , OFCOM and such other persons as he considers appropriate.
The Secretary of State may by regulations amend subsection (4)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
The Secretary of State may by regulations make provision for determining, for the purposes of this section—
when an enterprise is to be treated as being controlled by a person;
the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
Regulations under subsection (9)(b) may, in particular, make provision as to—
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).
This section applies to the exercise of the CMA’s power to give a person a notice under section 109(2) or (3).
The power is exercisable so as to—
give the notice to a person who is outside the United Kingdom (subject to subsection (3));
require the production of documents, or the supply of information, held outside the United Kingdom.
The CMA’s power to give a notice under section 109(2) or (3) to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only if—
the person is, or was, part of, or involved with or carrying on, an enterprise which has or may have ceased, or may cease, to be a distinct enterprise in circumstances where a reference has been, or may be, made under section 22, 33, 45, 62, 62B or 68C, or a foreign state intervention notice has been given under section 70A(1), in relation to the enterprise, or
the person has a UK connection.
For the purposes of subsection (3)(b), a person has a UK connection if the person—
is a United Kingdom national;
is an individual who is habitually resident in the United Kingdom;
is a body incorporated under the law of any part of the United Kingdom;
carries on business in the United Kingdom.
Nothing in this section is to be taken to limit any other power of the CMA to give a notice under section 109(2) or (3) to a person outside the United Kingdom.
As soon as practicable after imposing a penalty under section 110(1) or (1A), the appropriate authority must give the person concerned a final penalty notice.
Before the appropriate authority imposes a penalty under section 110(1) or (1A), the authority must give the person concerned a provisional penalty notice.
The final penalty notice shall state—
that the appropriate authority has imposed a penalty on the person concerned;
whether the penalty is of a fixed amount, of an amount calculated by reference to a daily rate or of both a fixed amount and an amount calculated by reference to a daily rate;
the amount or amounts concerned and, in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;
the act or omission in question which the appropriate authority considers gave it the power to impose the penalty;
any other facts which the appropriate authority considers justify the imposition of a penalty and the amount or amounts of the penalty;
the manner in which, and place at which, the penalty is required to be paid to the appropriate authority;
the date or dates, no earlier than the end of the relevant period beginning with the date of service of the notice on the person concerned, by which the penalty or (as the case may be) different portions of it are required to be paid;
that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid; and
that the person concerned has the right to apply under subsection (3) below or to appeal under section 114 and the main details of those rights.
A provisional penalty notice must—
contain a draft of the final penalty notice the appropriate authority is minded to give to the person under subsection (1),
invite the making of representations by the person to the authority about the proposed final penalty notice, and
specify the means by which, and the time by which, such representations must be made.
The person against whom the penalty was imposed may, within 14 days of the date of service on him of a notice under subsection (1), apply to the appropriate authority for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.
The appropriate authority must have regard to any representations received in accordance with a provisional penalty notice before imposing a penalty under section 110(1) or (1A) (and accordingly may not impose such a penalty before the time for the person concerned to make representations to the authority in accordance with that notice has expired).
A final penalty notice shall be given by—
serving a copy of the notice on the person on whom the penalty was imposed; and
publishing the notice.
In this section “relevant period” means the period of 28 days mentioned in subsection (3) of section 114 or, if another period is specified by the Secretary of State under that subsection, that period.
A provisional penalty notice is given by serving a copy of the notice on the person on whom the appropriate authority is minded to impose the penalty.
If the whole or any portion of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110).
Where an application has been made under section 112(3), the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.
If a portion of a penalty has not been paid by the date required for it, the appropriate authority may, where it considers it appropriate to do so, require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.
Any sums received by the appropriate authority in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.
No penalty shall be imposed by virtue of section 110(1)(a) or (b) if more than ten weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
In the following provisions of this section, “the section 109 power” means the power under section 109 to which the act or omission giving rise to the penalty in question relates.
Where the section 109 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked.
Except where subsection (3) applies, the relevant day is the day determined in accordance with the following provisions of this section.
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a possible reference under section 22 , 33, 68B or 68C, the relevant day is the day when the CMA finally decides whether to make the reference.
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a reference under section 22 , 33, 68B or 68C, the relevant day is the day when the reference is finally determined (see section 79).
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a possible reference under section 45 or 62, the relevant day is the day when the Secretary of State finally decides whether to make the reference.
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a reference under section 45 or 62, the relevant day is the day when the reference is finally determined.
Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a foreign state intervention notice under section 70A, the relevant day is the day when the matter to which the notice relates is finally determined under Chapter 3A (see section 70F).
Where the section 109 power is exercised for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B (see section 109A), the relevant day is the day when the transferred EU merger commitments concerned are waived or substituted by the European Commission.
Where the section 109 power is exercised for the purposes of providing assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the relevant day is the earlier of—
in the case of a penalty imposed by virtue of section 110(1)(a), the day on which the CMA gives notice to the relevant person that—
the information or documents specified or described in the notice under section 109 have been produced or supplied to the satisfaction of the CMA, or
the relevant person has appeared as a witness in accordance with the requirements of the CMA;
in the case of a penalty imposed by virtue of section 110(1)(b), the day on which the CMA gives notice to the relevant person that the CMA considers the obstruction or delay to have ceased; and
in either case, the day one year on from the day specified in the notice under section 109 for the relevant person to comply with it.
In subsection (10), “the relevant person” means the person given the notice under section 109.
This section applies if a person on whom a penalty is imposed under section 110(1) or (1A) is aggrieved by—
the imposition or nature of the penalty;
the amount or amounts of the penalty; or
the date by which the penalty is required to be paid or (as the case may be) the different dates by which portions of the penalty are required to be paid.
The person aggrieved may apply to the Competition Appeal Tribunal.
If a copy of the notice under section 112(1) was served on the person on whom the penalty was imposed, the application to the Competition Appeal Tribunal shall, subject to subsection (4), be made within—
the period of 28 days starting with the day on which the copy was served on the person concerned; or
such other period as the Secretary of State may by order specify.
If the application relates to a decision of the appropriate authority on an application by the person on whom the penalty was imposed under section 112(3), the application to the Competition Appeal Tribunal shall be made within—
the period of 28 days starting with the day on which the person concerned is notified of the decision; or
such other period as the Secretary of State may by order specify.
On an application under this section, the Competition Appeal Tribunal may— if it considers it appropriate to do so.
quash the penalty;
substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or
in a case falling within subsection (1)(c), substitute for the date or dates imposed by the appropriate authority an alternative date or dates;
The Competition Appeal Tribunal shall not substitute a penalty of a different nature under subsection (5)(b) unless it considers that the person on whom the penalty is imposed will, or is likely to, pay less under the substituted penalty than he would have paid under the original penalty.
In the case of a penalty imposed on a person by the CMA or OFCOM, in considering what is appropriate for the purposes of subsection (5) the Competition Appeal Tribunal must have regard to the relevant guidance.
Where an application has been made under this section—
the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and
the appropriate authority may agree to reduce the amount or amounts of the penalty in settlement of the application.
Where the Competition Appeal Tribunal substitutes a penalty of a different nature or of a lesser amount or amounts it may require the payment of interest on the substituted penalty at such rate or rates, and from such date or dates, as it considers appropriate.
Where the Competition Appeal Tribunal specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers appropriate.
An appeal lies to the appropriate court—
on a point of law arising from a decision of the Tribunal in proceedings under this section; or
from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.
An appeal under subsection (10)—
may be brought by a party to the proceedings before the Tribunal; and
requires the permission of the Tribunal or the appropriate court.
In this section
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.
“the relevant guidance” means—
in the case of a penalty imposed on a person by the CMA, the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;
in the case of a penalty imposed on a person by OFCOM, the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.
For the purpose of section 110A(5), the CMA finally decides whether to make a reference under section 22 , 33, 68B or 68C if—
the CMA decides that the duty to make such a reference applies;
the CMA accepts an undertaking under section 73;
the CMA decides not to make such a reference (otherwise than because it has accepted an undertaking under section 73);
the initial period for the purposes of section 34ZA expires without the CMA having complied with the duty under subsection (1) of that section;
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the period permitted by section 73A for the CMA to make a decision required by subsection (2)(a) or (3) of that section expires without the CMA having made the decision.
For the purpose of section 110A(5), the time when the CMA finally decides whether to make a reference under section 22 , 33, 68B or 68C is—
in a case falling within subsection (1)(a), the making of the decision that the duty to make such a reference applies;
in a case falling within subsection (1)(b), the acceptance of the undertaking;
in a case falling within subsection (1)(c), the making of the decision not to make the reference;
in a case falling within subsection (1)(d), the expiry of the initial period;
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in a case falling within subsection (1)(f), the expiry of the period in question.
For the purpose of section 110A(7), the Secretary of State finally decides whether to make a reference under section 45 or 62 if—
the Secretary of State makes such a reference;
the Secretary of State accepts an undertaking under paragraph 3 of Schedule 7;
the Secretary of State decides not to make such a reference (otherwise than because of the acceptance of an undertaking under paragraph 3 of Schedule 7);
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For the purpose of section 110A(7), the time when the Secretary of State finally decides whether to make a reference under section 45 or 62 is—
in a case falling within subsection (3)(a), the making of the reference;
in a case falling within subsection (3)(b), the acceptance of the undertaking;
in a case falling within subsection (3)(c), the making of the decision not to make the reference;
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Paragraph 7(8) to (10) of Schedule 7 applies for deciding if and when a reference under section 45(2) or (3) or 62(2) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of paragraph 7 of Schedule 7.
Paragraph 8(7) to (9) of Schedule 7 applies for deciding if and when a reference under section 45(4) or (5) or 62(3) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of the definition of “relevant period” in paragraph 8(6) of that Schedule.
Where a penalty imposed under section 110(1) or (1A), or any portion of such a penalty, has not been paid by the date on which it is required to be paid and— the appropriate authority may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid; and in England and Wales and Northern Ireland such penalty and interest may be recovered as a civil debt due to the appropriate authority.
no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or
any such application which has been made has been determined, withdrawn or otherwise dealt with,
The CMA must prepare and publish a statement of policy in relation to—
the imposition of penalties under section 110, and
the enforcement of notices under section 109.
The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 110(1) or (1A).
The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.
A person commits an offence if—
he supplies any information to the appropriate authority in connection with any of their functions under this Part;
the information is false or misleading in a material respect; and
he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.
A person commits an offence if he— knowing that the information is to be used for the purpose of supplying information to the appropriate authority in connection with any of their functions under this Part.
supplies any information to another person which he knows to be false or misleading in a material respect; or
recklessly supplies any information to another person which is false or misleading in a material respect;
A person who commits an offence under subsection (1) or (2) shall be liable—
on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
A person does not commit an offence under subsection (1) or (2) by reason of any act or omission if the appropriate authority has proceeded against the person under section 110(1) or (1A) in relation to that act or omission.
A person (“P”) commits an offence if the person intentionally alters, suppresses or destroys any document which P has been required to produce by a notice under section 109.
But P does not commit an offence under subsection (1) by reason of any act or omission if the CMA has proceeded against P under section 110(1) or (1A) in relation to that act or omission.
A person who commits an offence under subsection (1) is liable—
on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
In this section—
the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;
the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
Subsection (2) applies where the Secretary of State is under a duty to publish—
a report of the CMA under section 44 or 61;
a report of the CMA under section 50 or 65 , or
a report of OFCOM under section 44A or 61A;...
a report of the CMA under section 70B.
The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.
In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.
The body which has prepared the report shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).
References in sections 38(4) and 107(11) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.
Subsection (2) applies where, on a reference to the CMA under this Part, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.
The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
Any person aggrieved by a decision mentioned in subsection (1A) may apply to the Competition Appeal Tribunal for a review of that decision.
For this purpose “decision”—
does not include a decision to impose a penalty under section 94AA(1) or 110(1) or (1A); but
includes a failure to take a decision permitted or required by
this Part in connection with a reference or possible reference or transferred EU merger commitments
Chapter 3A of this Part;
Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.
The decisions are—
a decision of the CMA, OFCOM or the Secretary of State under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation;
a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;
a decision of the CMA under this Part in connection with transferred EU merger commitments.
a decision of the CMA or the Secretary of State for the purposes of Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.
Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.
In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.
The Competition Appeal Tribunal may—
dismiss the application or quash the whole or part of the decision to which it relates; and
where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.
An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.
An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
In this section—
“the OFT” means the Office of Fair Trading.
Section 1
“subsidiary” has the meaning given by section 1159 of the Companies Act 2006 (c. 6);
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In this Schedule “the Tribunal”, in relation to any proceedings before it, means the Tribunal as constituted (in accordance with section 14) for the purposes of those proceedings. In this Schedule, where a paragraph is capable of applying to proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, any reference in that paragraph to “proceedings” includes a reference to those proceedings.
Tribunal rules may make provision— Rules under sub-paragraph (1)(h) may provide, in relation to a claim made under section 47A of the 1998 Act which is continued on behalf of a person in proceedings under section 47B of that Act, for costs or expenses to be awarded to or against that person in respect of proceedings on that claim which took place before it was included in the proceedings under section 47B of that Act. Rules under sub-paragraph (1)(h) may provide for costs or expenses to be awarded to or against a person on whose behalf a claim is made or continued in proceedings under section 47B of the 1998 Act in respect of an application in the proceedings made by that person (where that application is not made by the representative in the proceedings on that person's behalf). Otherwise Tribunal rules may not provide for costs or expenses to be awarded to or against a person on whose behalf a claim is made or continued in proceedings under section 47B of the 1998 Act. Tribunal rules may make provision enabling the Tribunal to refer any matter arising in any proceedings (other than proceedings under section 47A or 47B of the 1998 Act) back to the authority that made the decision to which the proceedings relate, if it appears that the matter has not been adequately investigated. A person who without reasonable excuse fails to comply with— is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Tribunal rules may provide— Any sums received in respect of such fees shall be paid into the Consolidated Fund.
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. Tribunal rules may make provision enabling the Tribunal to decide that any proceedings before it are to be treated, for purposes connected with— as proceedings in England and Wales, Scotland or Northern Ireland (regardless of the decision made for the purposes of sub-paragraph (1)). 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.
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Section 95 of the Telecommunications Act 1984 (modification of licence conditions by order) shall be amended as follows. For subsections (1) and (2) there shall be substituted— For subsection (3) there shall be substituted—
Section 15 of the Electricity Act 1989 (modification of licence conditions by order) shall be amended as follows. For subsections (1) and (2) there shall be substituted— For subsection (2B) there shall be substituted— In subsection (2C)— For subsection (3) there shall be substituted—
Tribunal rules may make different provision for different kinds of proceedings.
Tribunal rules may make provision—
for a person who is not a party to be joined in any proceedings;
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;
for proceedings to be consolidated on such terms as the Tribunal thinks appropriate in such circumstances as may be specified.
Sub-paragraph (2) applies where an intervention notice or special intervention notice is in force. The Secretary of State or the CMA may by order, for the purpose of preventing pre-emptive action— Sub-paragraph (2B) applies where— 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 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. Sub-paragraph (4) applies where an intervention notice is in force. 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. An order adopted under sub-paragraph (4)— Any other order under this paragraph— 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. 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. 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. 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— 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. 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.
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—
the High Court or the county court in England and Wales or the High Court or a county court in Northern Ireland; or
the Court of Session or a sheriff court in Scotland.
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.
in the case of the appropriate Minister (other than the Secretary of State acting alone), any decision by the appropriate Minister— ... to make a reference under section 132; or to vary under section 135 such a reference; ... in the case of the Secretary of State, any decision by the Secretary of State— to make a reference under section 132; to vary under section 135 such a reference; in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or to vary under section 140B a reference made under section 140A(6).
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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. An undertaking under this paragraph— 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. 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— 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.
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Sub-paragraph (2) applies where the Secretary of State considers that— 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. 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). An order under this paragraph may contain— An order under this paragraph— 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.
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. An order under this paragraph may contain— An order under this paragraph shall come into force at such time as is determined by or under the order. 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. 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.
Section 12
Section 13
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he is not to be regarded for the purposes of Part 11 of the Employment Rights Act 1996 as having been dismissed by virtue of the transfer; and
his period of employment with the transferor counts as a period of employment with the transferee for the purposes of that Act.
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The Competition Service.
The Competition Service.
Sections 14 and 15
the Court of Session or a sheriff court; and
If a decision of the Tribunal is registered in England and Wales in accordance with rules of court or any practice direction— may be enforced by the High Court as if the damages, costs or expenses were an amount due in pursuance of a judgment or order of the High Court, or as if the direction were an order of the High Court.
payment of damages which are awarded by the decision;
costs or expenses awarded by the decision; and
any direction given as a result of the decision,
If a decision of the Tribunal awards damages, costs or expenses, or results in any direction being given, the decision may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly.
Subject to rules of court or any practice direction, a decision of the Tribunal may be registered or recorded for execution—
for the purpose of enforcing a direction given as a result of the decision, by the Registrar of the Tribunal or a person who was a party to the proceedings;
for the purpose of enforcing a decision to award damages, costs or expenses (other than a decision to which paragraph (c) applies), by the person to whom the sum concerned was awarded; and
for the purpose of enforcing a decision to award damages which is the subject of an order under section 47C(3) or (4) of the 1998 Act, by the representative in the proceedings under section 47B of that Act.
Where a person (“A”) fails to comply with an injunction granted by the Tribunal in relevant proceedings, the Tribunal may certify the matter to the High Court. The High Court may enquire into the matter. If, after hearing any witnesses who may be produced against or on behalf of A, and any statement made by or on behalf of A, the High Court is satisfied that A would have been in contempt of court if the injunction had been granted by the High Court, the High Court may deal with A as if A were in contempt. For the purposes of this paragraph, “relevant proceedings” means proceedings under—
Tribunal rules may make provision as to proceedings on an application for a relevant warrant or section 75 of the Digital Markets, Competition and Consumers Act 2024, including provision— Paragraphs 2 to 8, and 11 to 17, of this Schedule do not apply in relation to the institution or conduct of proceedings for a relevant warrant. For the purposes of this paragraph, “relevant warrant” means a warrant under—
Tribunal rules may make provision in relation to a fast-track procedure for claims made in proceedings under section 47A of the 1998 Act, including describing the factors relevant to determining whether a claim is suitable to be dealt with according to that procedure. Tribunal rules may make different provision for claims in proceedings under section 47A of the 1998 Act which are and which are not subject to the fast-track procedure. Tribunal rules may, in particular, provide for the Tribunal to— In sub-paragraph (3) “an undertaking as to damages” means an undertaking to pay damages which a person sustains as a result of the interim injunction and which the Tribunal considers the person to whom the injunction is granted should pay.
Tribunal rules may make provision in relation to collective proceedings under section 47B of the 1998 Act. Rules under sub-paragraph (1) must in particular make provision as to the following matters—
Tribunal rules may make provision in relation to collective settlements under sections 49A and 49B of the 1998 Act. Rules under sub-paragraph (1) must in particular make provision as to the following matters—
In relation to proceedings in England and Wales or Northern Ireland under section 47A or 47B of the 1998 Act, Tribunal rules may make provision as to the stay of the proceedings, including as to— In relation to proceedings in Scotland under section 47A or 47B of the 1998 Act, Tribunal rules may make provision as to the sist of the proceedings, including as to— Rules under sub-paragraph (1) or (2) may in particular make provision in relation to the stay or sist of proceedings under section 47A or 47B which relate to a claim in respect of an infringement decision (as defined in section 47A(6)) which has not become final (see section 58A of the 1998 Act).
Tribunal rules may make provision in relation to the grant of injunctions (including interim injunctions) in proceedings under section 47A or 47B of the 1998 Act.
Tribunal rules may make provision in relation to the grant of declarations or declarators (including interim declarations or interim declarators) in proceedings under section 47A or 47B of the 1998 Act.
Section 21
Part 1 of the 1998 Act is amended as follows.
In section 46 (appealable decisions)—
in subsections (1) and (2), for “the Competition Commission” there is substituted “ the Tribunal ”;
in subsection (3) (in the full-out words), after “other decision” there is inserted “ under this Part ”;
subsection (3)(h) shall cease to have effect.
Section 48 (appeal tribunals) shall cease to have effect.
For section 49 there is substituted—
In section 58(1) (findings of fact by director)—
in paragraph (a), after “appeal” there is inserted “ under section 46 or 47 ”; and
in paragraph (b), for “an appeal tribunal” there is substituted “ the Tribunal ”.
In section 59(1) (interpretation of Part 1)—
the definition of “appeal tribunal” shall cease to have effect;
“the Tribunal” means the Competition Appeal Tribunal; “Tribunal rules” means rules under section 15 of the Enterprise Act 2002.
Schedule 7 (the Competition Commission) is amended as follows. In paragraph 1 (interpretation)— In paragraph 2 (membership), sub-paragraphs (1)(a), (3)(a) and (4) shall cease to have effect. Paragraph 4 (the President) shall cease to have effect. In paragraph 5 (the Council)— shall cease to have effect. Part 3 (appeals) shall cease to have effect.
Schedule 8 (appeals) is amended as follows. Paragraph 1 shall cease to have effect. In paragraph 2 (general procedure for appeals under Part 1)— In paragraph 3, for “tribunal” (in each place) there is substituted “ Tribunal ”. Paragraphs 4 to 14 shall cease to have effect.
Section 70
Section 85
Section 86(4)
“restricted PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a restricted PI reference.
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.
The following shall be substituted for section 31 of the Insolvency Act 1986 (c. 45) (receiver and manager: disqualification)—
The following shall be substituted for section 11(1) of the Company Directors Disqualification Act 1986 (c. 46) (bankrupt)—
In this Schedule “the relevant authority” means—
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in the case of an order to be made by the CMA, the CMA; ...
in the case of an order to be made by the Secretary of State, the Secretary of State ; and
in the case of an order to be made by the Chancellor of the Duchy of Lancaster, the Chancellor of the Duchy of Lancaster.
This paragraph applies in relation to any order— This paragraph also applies in relation to an order under section 70C(2) (order to prevent foreign control of a newspaper enterprise). The order may make such provision as the person making the order considers to be appropriate in all circumstances of the case. Such provision may, in particular, include provision requiring a person to do, or not to do, particular things. Provision made by virtue of this paragraph may, in particular, include provision— In this paragraph “news media public interest consideration” means a media public interest consideration other than one which is such a consideration— In this paragraph, “news media enterprise” means— This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order concerned.
This paragraph applies for the purposes of a relevant order under paragraph 5, 10 or 11 of Schedule 7 (enforcement orders in cases relating to the stability of the UK financial system) but not for any other purposes of Part 3 or 4 or any other enactment. The order may make such provision as the person making the order considers to be appropriate in the interest of maintaining the stability of the UK financial system. Such provision may, in particular, include provision requiring a person to do, or not to do, particular things. This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order. In this paragraph “relevant order” means an order—
This paragraph applies for the purposes of a relevant order under paragraph 5, 10 or 11 of Schedule 7 (enforcement orders in cases relating to maintaining the capability to combat etc public health emergencies) but not for any other purposes of this Part or Part 4 or any other enactment. The order may make such provision as the person making the order considers to be appropriate for the purpose of maintaining in the United Kingdom the capability to combat, or to mitigate the effects of, public health emergencies. Such provision may, in particular, include provision requiring a person to do, or not to do, particular things. This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order. In this paragraph “relevant order” means an order—
An order may provide for the appointment of one or more than one person (referred to in this paragraph as an “appointee”) by the relevant authority or by such other persons as may be specified or described in the order to— An order made by virtue of this paragraph must make provision as to the terms of an appointee's appointment. A determination made by virtue of an order under this paragraph is binding on—
Sections 86(5), 164(2) and 168(9)
Section 90
Section 185
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in sub-paragraph (1)(c), for the words from the beginning to “from” there is substituted “the members of”;
in sub-paragraph (1), after paragraph (d) there is inserted—;
A person may not be, at the same time, a member of the Commission and a member of the Tribunal.
in sub-paragraph (2), for “(a)” there is substituted “(aa)”; and
in sub-paragraph (3), before paragraph (b) there is inserted—.
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in sub-paragraph (1), the word “management” shall cease to have effect;
in sub-paragraph (2)(a), after “Chairman” there is inserted “and any deputy chairmen of the Commission”;
in sub-paragraph (2), before paragraph (c) there is inserted—; and
Without prejudice to the question whether any other functions of the Commission are to be so discharged, the functions of the Commission under sections 106, 116, and 171 of the Enterprise Act 2002 (and under section 116 as applied for the purposes of references under Part 4 of that Act by section 176 of that Act) are to be discharged by the Council.
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in sub-paragraph (2), for “five years at a time” there is substituted “eight years (but this does not prevent a re-appointment for the purpose only of continuing to act as a member of a group selected under paragraph 15 before the end of his term of office)”; and
sub-paragraph (5) shall cease to have effect.
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sub-paragraph (2), and in sub-paragraph (3) the words “and the President”, shall cease to have effect;
in sub-paragraph (4), for paragraphs (a) and (b) there is substituted “the Secretary of State as to numbers and terms and conditions of service”.
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Section 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sections 210 and 243(12)(c)
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Sections 238 and 243
Parts 1, ..., 3, 4, 5, 6, 7, 8 and 11 of the Fair Trading Act 1973 (c. 41). Trade Descriptions Act 1968 (c. 29). Hallmarking Act 1973 (c. 43). Prices Act 1974 (c. 24). Consumer Credit Act 1974 (c. 39). Customs and Excise Management Act 1979 (c. 12). Estate Agents Act 1979 (c. 38). Competition Act 1980 (c. 21). Video Recordings Act 1984 (c. 39). Consumer Protection Act 1987 (c. 43). Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20)). Copyright, Designs and Patents Act 1988 (c. 48). ... ... Clean Air Act 1993 (c. 11) Value Added Tax Act 1994 (c. 23). Trade Marks Act 1994 (c. 26). Competition Act 1998 (c. 41). Chapter 4 of Part 9A of the Financial Services and Markets Act 2000 (c. 8). An order made under section 95 of that Act. Articles 13A to 13E of the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I. 4)). Fireworks Act 2003. ... Consumers, Estate Agents and Redress Act 2007. Groceries Code Adjudicator Act 2013. Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013. Chapter 5 of Part 3 of the Consumer Rights Act 2015. Schedule 3 to the Consumer Rights Act 2015. Paragraph 13(2), (3) or (7) of Schedule 5 to the Consumer Rights Act 2015. Part 4 of the Small Business, Enterprise and Employment Act 2015. Part 4 of the United Kingdom Internal Market Act 2020. Subsidy Control Act 2022. Part 1 of the Product Security and Telecommunications Infrastructure Act 2022. Part 1 of the Digital Markets, Competition and Consumers Act 2024. Chapters 3 and 4 of Part 3 of the Digital Markets, Competition and Consumers Act 2024. Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 3 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 4 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 1 of Part 5 of the Digital Markets, Competition and Consumer Act 2024. Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024.
Section 241
Gun Barrel Proof Act 1868 (cap 113). Gun Barrel Proof Act 1950 (cap 3). Trade Descriptions Act 1968. Unsolicited Goods and Services Act 1971 (c. 30). Fair Trading Act 1973. Hallmarking Act 1973 (c. 43). Prices Act 1974. the relevant statutory provisions within the meaning of Part I of the Health and Safety at Work etc. Act 1974 (c. 37). Consumer Credit Act 1974. Unsolicited Goods and Services (Northern Ireland) Order 1976 (S.I. 1976/57 (N.I. 1). Gun Barrel Proof Act 1978 (c. 9). the relevant statutory provisions within the meaning of the Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9)). Estate Agents Act 1979. Competition Act 1980. Weights and Measures (Northern Ireland) Order 1981 (S.I. 1981/231 (N.I. 10)). National Audit Act 1983 (c. 44). Telecommunications Act 1984 (c. 12). Video Recordings Act 1984 (c. 39). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weights and Measures Act 1985 (c. 72). Airports Act 1986 (c. 31). Gas Act 1986 (c. 44). Insolvency Act 1986 (c. 45). Company Directors Disqualification Act 1986 (c. 46). Financial Services Act 1986 (c. 60). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consumer Protection Act 1987 (c. 43). Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20)). Banking Act 1987 (c. 22). Education Reform Act 1988 (c. 40). Copyright, Designs and Patents Act 1988 (c. 48). The Education (Unrecognised Degrees) (Northern Ireland) Order 1988 (S.I. 1988/1989 (N.I. 22)). Water Act 1989 (c. 15). Electricity Act 1989 (c. 29). Companies Act 1989 (c. 40). ... Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)). ... Companies No. 2 (Northern Ireland) Order 1990 (S.I. 1990/1504 (N.I. 10)). Courts and Legal Services Act 1990 (c. 41). Broadcasting Act 1990 (c. 42). ... Water Industry Act 1991 (c. 56). Water Resources Act 1991 (c. 57). ... Land Drainage Act 1991 (c. 59). Water Consolidation (Consequential Provisions) Act 1991 (c. 60). ... Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)). Clean Air Act 1993 (c. 11). Railways Act 1993 (c. 43). Coal Industry Act 1994 (c. 21). Trade Marks Act 1994 (c. 26). Part IV of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)). Gas Act 1995 (c. 45). Broadcasting Act 1996 (c. 55). Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)). Bank of England Act 1998 (c. 11). Competition Act 1998 (c. 41). Financial Services and Markets Act 2000 (c. 8). Government Resources and Accounts Act 2000 (c. 20). Postal Services Act 2000 (c. 26). Utilities Act 2000 (c. 27). Transport Act 2000 (c. 38). Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I. 4)). Communications Act 2003. Fireworks Act 2003. Water Act 2003 (c. 37). Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426). Railways Act 2005 (c. 14) Gambling Act 2005 (c.19) ... Wireless Telegraphy Act 2006 (c.36). Water and Sewerage Services (Northern Ireland) Order 2006 the Companies Acts (as defined in section 2 of the Companies Act 2006) Consumers, Estate Agents and Redress Act 2007. Banking Act 2009 (c. 1). Postal Services Act 2011. Electronic Money Regulations 2011. Airport Charges Regulations 2011. Civil Aviation Act 2012. Consumer Rights (Payment Surcharges) Regulations 2012. Groceries Code Adjudicator Act 2013. Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013. the relevant statutory provisions within the meaning of Part 3 of the Energy Act 2013 (c.32). Water Act 2014. The Health and Social Care Act 2012. Financial Services (Banking Reform) Act 2013 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC. Chapter 5 of Part 3 of the Consumer Rights Act 2015. Schedule 3 to the Consumer Rights Act 2015. The Payment Card Interchange Fee Regulations 2015. Part 4 of the Small Business, Enterprise and Employment Act 2015. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection Regulation). Payment Services Regulations 2017. Part 4 of the Network and Information Systems Regulations 2018 (S.I. 2018/506). Data Protection Act 2018. Schedule 11 to the Financial Services and Markets Act 2023 (c. 29). Online Safety Act 2023. Procurement Act 2023 (c. 54). Part 1 of the Digital Markets, Competition and Consumers Act 2024. Chapters 3 and 4 of Part 3 of the Digital Markets, Competition and Consumers Act 2024. Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 3 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 4 of Part 4 of the Digital Markets, Competition and Consumers Act 2024. Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024.
Section 248
Section 248
Section 250
Section 256
Section 257
Section 257
Section 264
Section 269
The Insolvency Act 1986 (c. 45) shall be amended as follows.
Section 275 (bankruptcy: summary administration) shall cease to have effect.
In section 280(1) (bankruptcy: discharge by order of court)—
for “section 279(1)(a)” substitute “ section 279(6) ”, and
for “commencement of the bankruptcy” substitute “ date on which the bankruptcy commences ”.
In section 282 (annulment of bankruptcy)—
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omit subsection (5) (previous bankruptcy: disregard of annulled bankruptcy).
For section 291(4) (co-operation with official receiver) substitute—
In section 292(1)(a) (trustee in bankruptcy: power to appoint) omit the words “except at a time when a certificate for the summary administration of the bankrupt’s estate is in force,”.
In section 293(1) (trustee in bankruptcy: meeting to appoint) omit the words “and no certificate for the summary administration of the bankrupt’s estate has been issued,”.
In section 294(1) (power of creditors to requisition meeting) omit the words—and .
In section 297 (trustee: special cases)—
omit subsections (2) and (3), and
in subsection (4) omit the words “but no certificate for the summary administration of the estate is issued”.
Omit section 298(3) (removal of trustee: summary administration).
In section 300 (trustee: vacancy)—
omit subsection (5), and
in subsections (6) and (7) omit the words “or (5)”.
In section 354(3) (concealment of property) after “the official receiver” insert “ , the trustee ”.
At the end of section 355 (concealment and falsification of records) add—
In the following provisions of section 399 (appointment of official receiver) for “or winding up” substitute “ , winding up or individual voluntary arrangement ”
subsection (1) (twice), and
subsection (4).
In section 429(2)(b) (disability imposed on revoking administration order under County Courts Act 1984) for “not exceeding 2 years” there shall be substituted “ not exceeding one year ”.
Schedule 9 (scope of insolvency rules) shall be amended as follows. After paragraph 8 (registration of voluntary arrangements) insert— After paragraph 29 (records) insert—
In Schedule 10 (punishment of offences)—
in the entry for section 31 omit “Undischarged”, and
omit the entries for sections 361 and 362.
Section 276
Section 278
Section 278 Reference Extent of repeal or revocation Registered Designs Act 1949 (c. 88) In section 11A(1), paragraphs (a) and (b). Agricultural Marketing Act 1958 (c. 47) In section 19A(2), the words from the beginning of the subsection to “this section”. Public Records Act 1958 (c. 51) In Schedule 1, in Part 2, the entry relating to the Office of the Director General of Fair Trading. Parliamentary Commissioner Act 1967 (c. 13) In Schedule 2, the entry relating to the Office of the Director General of Fair Trading. Trade Descriptions Act 1968 (c. 29) Section 28(5) and (5A). Local Government Act 1972 (c. 70) Section 81(1) and (2). Fair Trading Act 1973 (c. 41) Sections 1 to 3. In section 5— in subsection (1), paragraph (a) and the word “or” at the end of it, and paragraph (c) and the word “or” before it; subsection (3). Sections 6 to 22. In section 30, subsection (3) and, in subsection (5), the words “, subsection (3)”. Sections 34 to 42. Sections 44 to 56G. Sections 63 to 76. In section 77— subsection (1)(b) and (c); in subsection (2), paragraph (b) and the word “or” before it; subsection (3); in subsection (5), paragraph (b) and the word “and” before it. Sections 78 to 81. In section 82— in subsection (1), the words “the Advisory Committee or”, and, in paragraph (b), the words “the Advisory Committee or of” and the words “, as the case may be,”; in subsection (2), the words “the Advisory Committee or of”; subsection (3); in subsection (4), the words “other than a monopoly reference limited to the facts”. In section 83— in subsection (1), the words from “any report of the Advisory Committee” to “applies, or”; in subsections (3) and (4), the words “of the Advisory Committee or”. Section 84. Section 86. Sections 88 to 93A. In section 93B(1), the words “or under the Competition Act 1980”. Sections 124 and 125. In section 129(4), the words “or 46(2)”. Sections 130 and 131. In section 132(1), the words “section 46,”. Section 133. In section 137(2), the definitions of “the Advisory Committee” and “the Director”. In section 138, the words “Parts II and III,”. Schedules 1, 2 and 4 to 9. In Schedule 12, the entry relating to the Public Records Act 1958. Prices Act 1974 (c. 24) In the Schedule, paragraph 12. Consumer Credit Act 1974 (c. 39) Section 5. Section 161(2). Section 174. In section 189(1), the definition of “Director”. In Schedule 4, paragraph 28. House of Commons Disqualification Act 1975 (c. 24) In Schedule 1, in Part 3, the entry relating to the Director General of Fair Trading. Northern Ireland Assembly Disqualification Act 1975 (c. 25) In Schedule 1, in Part 3, the entry relating to the Director General of Fair Trading. Patents Act 1977 (c. 37) In section 51(1), paragraphs (a) and (b). In Schedule 5, paragraph 7. Estate Agents Act 1979 (c. 38) Section 9(5). Section 10. Section 26(2). In section 33(1), the definition of “Director”. Competition Act 1980 (c. 21) In section 11, in subsection (1), paragraph (c) and the word “or” before it, and subsections (2), (9) and (9A). Section 13. In section 16, subsection (1) and, in subsection (2), the words “or of the Director”. In section 17, in subsections (1), (3) and (4), the words “or 13(5)”. Section 18. In section 19, subsections (1) to (3), (4)(c), (d) and (f) and (5) and (6). Sections 20, 21 and 24. In section 31, in subsection (1), the words “or regulations”, in subsection (3), the words “regulations under this Act or”, and subsection (4). Telecommunications Act 1984 (c. 12) In section 13, subsections (9) and (9A). In section 50— subsection (1); in subsection (6), the words from “or paragraph” to “Act 1994”; subsection (7). In Schedule 4, paragraphs 57, 60(2), 72 and 73. Dentists Act 1984 (c. 24) In Schedule 5, paragraph 6. Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) In Schedule 2, the entry relating to section 92 of the Fair Trading Act 1973. Administration of Justice Act 1985 (c. 61) In section 60(6), the words “in paragraph 10A of Schedule 4 to the Fair Trading Act 1973 and”. Insolvency Act 1985 (c. 65) In Schedule 8, paragraph 22. Bankruptcy (Scotland) Act 1985 (c. 66) In Schedule 3, paragraphs 1 to 3 and 8 to 8C. Weights and Measures Act 1985 (c. 72) In Schedule 12, paragraph 6. Airports Act 1986 (c. 31) In section 44, subsections (3) and (3A). In section 54, subsection (3). In Schedule 4, paragraphs 3, 4, 6 and 7. Gas Act 1986 (c. 44) In section 24, subsections (7) and (7A). In section 26A, subsections (12) and (13). Section 27(3) and (4). In section 36A, subsections (1) and (9). In section 41E, subsections (7) and (8). In Schedule 7, paragraphs 15, 19, 27 and 28. Insolvency Act 1986 (c. 45) In section 212— in subsection (1)(b), the word “, administrator”; in subsection (2), in each place, the words “or administrator”; in subsection (4), the words “or administrator”. Section 230(1). In section 231, in each place, the word “administrator,”. In section 232, the word “administrator,”. In section 240(1), the word “and” before paragraph (c). In section 245(3), the word “or” before paragraph (c). Section 275. Section 282(5). In section 292(1)(a), the words “except at a time when a certificate for the summary administration of the bankrupt’s estate is in force,”. In section 293(1), the words “and no certificate for the summary administration of the bankrupt’s estate has been issued,”. In section 294(1), paragraph (b) and the word “and” before it. In section 297— subsections (2) and (3); in subsection (4), the words “but no certificate for the summary administration of the estate is issued”. Section 298(3). In section 300— subsection (5); in subsections (6) and (7), the words “or (5)”. In section 310(1), the words “, on the application of the trustee,”. Sections 361 and 362. Section 405. In section 427— in subsection (1), the words “England and Wales or”; subsection (7). In Schedule 6, paragraphs 1 to 7. In Schedule 10— the entry for section 12(2); the entry for section 15(8); the entry for section 18(5); the entry for section 21(3); the entry for section 22(6); the entry for section 23(3); the entry for section 24(7); the entry for section 27(6); in the entry for section 31, the word “Undischarged”; the entries for sections 361 and 362. Consumer Protection Act 1987 (c. 43) Section 38. In Schedule 4, paragraphs 2(2), 3, 4 and 7. Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20)) In Schedule 3, paragraphs 2 and 4. Income and Corporation Taxes Act 1988 (c. 1) In Schedule 29, in paragraph 32, in the Table, the references relating to the Insolvency Act 1986. Criminal Justice Act 1988 (c. 33) Section 62(2)(a). Copyright, Designs and Patents Act 1988 (c. 48) In Schedule 7, paragraph 15. Control of Misleading Advertisements Regulations 1988 (S.I. 1988/915) Regulation 7(6)(a), (b), (d) and (e). Water Act 1989 (c. 15) In Schedule 25, paragraphs 45(3), 47, 57 and 59(2). Electricity Act 1989 (c. 29) In section 12, subsections (8) and (8A). In section 14A, subsections (12) and (13). In section 43— subsection (1); in subsection (6), the words from “or paragraph” to “Act 1994”; subsection (7). In section 56C, subsections (7) and (8). In Schedule 16, paragraphs 16, 17(2), 24, 25 and 36. Companies Act 1989 (c. 40) Sections 146 to 150. Section 152. In Schedule 14, paragraphs 4(5) and 8. In Schedule 20, paragraphs 3 to 11, 14 to 16 and 19. Courts and Legal Services Act 1990 (c. 41) Section 46(3). In section 119(1), the definition of “the Director”. In Schedule 18, paragraphs 4, 6, 22 and 23. Broadcasting Act 1990 (c. 42) Section 187(3). Section 192. In section 194A(9), the definition of “Director”. In Schedule 4, in paragraph 4, sub-paragraphs (7) and (7A), in paragraph 5, sub-paragraph (5), in paragraph 8, sub-paragraphs (3) and (4) and, in paragraph 10, the definition of “the Director”. In Schedule 20, paragraphs 20 and 28. EEC Merger Control (Consequential Provisions) Regulations 1990 (S.I. 1990/ 1563) Regulation 2. Property Misdescriptions Act 1991 (c. 29) In the Schedule, paragraphs 2 and 7. Finance Act 1991 (c. 31) In Schedule 2, paragraphs 21A and 22. Water Industry Act 1991 (c. 56) In section 14, subsections (7) and (7A) . In section 31— subsection (1); in subsection (8), the words from “or paragraph” to “Act 1994”; subsection (9). In section 36(1), the definition of “the 1973 Act” and the word “and” at the end of it. Water Consolidation (Consequential Provisions) Act 1991 (c. 60) In Schedule 1, paragraphs 24, 26, 33, 34 and 52. Social Security (Consequential Provisions) Act 1992 (c. 6) In Schedule 2, paragraph 73. Timeshare Act 1992 (c. 35) In Schedule 2, paragraphs 2(1) and 5. Electricity (Northern Ireland) Order 1992 (S.I. 1992/ 231 (N.I. 1)) Article 15(8) and (8A). In Article 46, paragraph (1), in paragraph (6), the words from “or paragraph” to “Act 1994”, and paragraph (7). In Schedule 12, paragraphs 9, 10, 14, 20, 21 and 31. Finance Act 1993 (c. 34) Section 36(1) to (3). Railways Act 1993 (c. 43) In section 4, in subsection (2)(a), the words from “in cases where” to “market”, and subsection (8). Section 13(8) and (8A). Section 66(1) and (2). In section 67— subsection (1); in subsection (7), the words from “was made” to “that it”; in subsection (8), the words from “or paragraph” to “Act 1994”; subsection (10). In section 83(1), the definition of “the Director”. In Schedule 12, paragraphs 7, 8, 11, 12(2) and (3) and 26. Finance Act 1994 (c. 9) In Schedule 6, paragraph 13(1) and (2). In Schedule 7, paragraph 7(2). Coal Industry Act 1994 (c. 21) In Schedule 9, paragraphs 14, 15, 21 and 23. Value Added Tax Act 1994 (c. 23) In Schedule 14, paragraph 8. Deregulation and Contracting Out Act 1994 (c. 40) Section 7(1). Section 9. Schedule 2. In Schedule 4, paragraph 2. In Schedule 11, paragraphs 2(3) and (4) and 4(6). Airports (Northern Ireland) Order 1994 (S.I. 1994/426) Article 35(3) and (3A). In Article 45, paragraph (3). In Schedule 9, paragraphs 2, 4, 7 and 8. Finance Act 1995 (c. 4) In section 17, the words “section 386(1) of the Insolvency Act 1986) (categories of preferential debts) and”. Finance Act 1996 (c. 8) In Schedule 5, paragraph 12(1) and (2). Employment Rights Act 1996 (c. 18) In sections 166(7)(a) and 183(3)(a), the words “or an administration order.” Section 189(4). Channel Tunnel Rail Link Act 1996 (c. 61) Section 22(1). Gas (Northern Ireland) Order 1996 (S.I. 1996/ 275 (N.I. 2)) Article 15(9) and (9A). Article 18(3). Article 23(1) and (8). In Schedule 6, the entries relating to sections 16 and 133 of the Fair Trading Act 1973, the entry relating to the Estate Agents Act 1979, the entry relating to the Competition Act 1980 and the entries relating to section 38 of the Consumer Protection Act 1987. Deregulation (Fair Trading Act 1973)(Amendment)(Merger Reference Time Limits) Order 1996 (S.I. 1996/345) The whole Order. Finance Act 1997 (c. 16) In Schedule 2, paragraph 6. Justices of the Peace Act 1997 (c. 25) Section 65. Competition Act 1998 (c. 41) In section 3(1), paragraph (d) and the word “or” before it. Section 46(3)(h). Section 48. Sections 55 and 56. In section 59(1), the definitions of “appeal tribunal” and “the Director”. In section 61(1), the definition of “the Director”. Sections 66 and 67. Schedule 4. In Schedule 5, in paragraph 5(2), the words “for him”. In Schedule 6, in paragraph 5(2), the words “for him”. In Schedule 7— in paragraph 1, the definitions of “appeal panel member” and “President” and, in the definition of “general functions”, paragraph (a) and the word “or” at the end of it; paragraph 2(1)(a), (3)(a) and (4); paragraph 4; in paragraph 5, in sub-paragraph (1), the word “management”, sub-paragraph (2)(b) and, in sub-paragraph (3), the words “and paragraph 5 of Schedule 8”; paragraph 6(5); paragraph 7(4); in paragraph 9, sub-paragraph (2) and in sub-paragraph (3), the words “and the President”. paragraph 10; in paragraph 15(7), paragraph (b) and the word “or” before it; paragraphs 23 to 27. In Schedule 8, paragraphs 1 and 4 to 14. In Schedule 10— paragraph 1; paragraph 2(7) and (10); paragraph 3(6) and (9) to (11); paragraph 4(6) and (9); paragraph 5(7), (9), (10) and (13); paragraph 6(6) and (9); paragraph 7(6) and (9); paragraph 8(6) and (9) to (11); paragraph 9(5); paragraph 10(4); paragraph 12(4) and (6); paragraph 13(8); paragraph 15(4); paragraph 17(6). Schedule 11. In Schedule 12— paragraph 1(4) to (7) and (14); paragraph 3; paragraph 4(3), (4), (9), (10), (12) and (15)(a); paragraph 10. Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999 (S.I. 1999/ 506) Article 22. Financial Services and Markets Act 2000 (c. 8) Section 351(1) to (3) and (7). In Schedule 14, paragraph 3. Schedule 19. Finance Act 2000 (c. 17) In Schedule 7, paragraphs 2 and 3. Regulation of Investigatory Powers Act 2000 (c. 23) In section 32(6), the word “and” at the end of paragraph (l). In section 35(10), the word “or” at the end of paragraph (b). In section 36— in subsection (1), the word “or” at the end of paragraph (c); in subsection (6), the word “and” at the end of paragraph (f). In section 37(1), the word “or” at the end of paragraph (c). Postal Services Act 2000 (c. 26) Section 20. Utilities Act 2000 (c. 27) Section 40(2), (4) and (5). In Schedule 6, paragraph 9. Transport Act 2000 (c. 38) Section 12(9), (10) and (11). In section 85(3), the words “the 1973 Act or”. Section 90(8). Section 91(5). In Schedule 8, paragraphs 11 and 12. In Schedule 10, in paragraph 4(3), the words “for him”. Insolvency Act 2000 (c. 39) Section 9. In Schedule 4, paragraph 13(3). Competition Act 1998 (Transitional, Consequential and Supplemental Provisions) Order 2000 (S.I. 2000/311) Article 9(5). Finance Act 2001 (c. 9) In Schedule 5, paragraphs 17(1) and (2) and 18. Anti-terrorism, Crime and Security Act 2001 (c. 24) In Schedule 4, paragraphs 5, 9, 10, 11, 17, 27, 30 and 33. Stop Now Orders (E.C. Directive) Regulations 2001 (S.I. 2001/1422) The whole Regulations. EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916) Regulation 35(1) and (2).
The Secretary of State may by order require the payment to him or the CMA of such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the CMA and OFCOM of their functions under or by virtue of this Part, . . . and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).
An order under this section may, in particular, provide for fees to be payable—
in respect of a merger notice; or
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
on the occurrence of any event specified in the order.
The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—
the decision by the CMA in relation to a possible reference under section 22 , 33, 68B or 68C that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
the decision by the Secretary of State in relation to a possible reference under section 45 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
the decision by the Secretary of State in relation to a possible reference under section 62 that—
it is or may be the case that a special merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation; and
one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
the decision by the CMA in relation to a possible reference under section 32 of the Act of 1991 that it is or may be the case that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises or that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) of that section.
An order under this section may, in particular, contain provision—
for ascertaining the persons by whom fees are payable;
specifying whether any fee is payable to the Secretary of State or the CMA;
for the amount of any fee to be calculated by reference to matters which may include—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . , the value of the turnover of the enterprises concerned;
as to the time when any fee is to be paid; and
for the repayment by the Secretary of State or the CMA of the whole or part of any fee in specified circumstances.
For the purposes of subsection (4)(c)(ii) the turnover of an enterprise shall be determined in accordance with such provisions as may be specified in an order under this section.
Provision made by virtue of subsection (5) may, in particular, include provision—
as to the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
as to the date or dates by reference to which an enterprise’s turnover is to be determined;
restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.
An order under this section may, in particular, in connection with provisions of the kind mentioned in subsection (5) make provision enabling the Secretary of State or the CMA to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (6)).
In determining the amount of any fees to be prescribed by an order under this section, the Secretary of State may take into account all costs incurred by him and by the CMA in respect of the exercise by him, the CMA and OFCOM of their respective functions under or by virtue of this Part . . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.
Fees paid to the Secretary of State or the CMA under this section shall be paid into the Consolidated Fund.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Advice and information published by virtue of section 106(1) or (3) shall include such advice and information about the effect of Community law, and anything done under or in accordance with it, on the provisions of this Part as the OFT or (as the case may be) the Commission considers appropriate.
Advice and information published by the OFT by virtue of section 106(1) shall, in particular, include advice and information about the circumstances in which the duties of the OFT under sections 22 and 33 do not apply as a result of the European Merger Regulations or anything done under or in accordance with them.
The duty or power to make a reference under section 22 or 45(2) or (3), and the power to give an intervention notice under section 42, shall apply in a case in which the relevant enterprises ceased to be distinct enterprises at a time or in circumstances not falling within section 24 if the condition mentioned in subsection (4) is satisfied.
The condition mentioned in this subsection is that, because of the European Merger Regulations or anything done under or in accordance with them, the reference, or (as the case may be) the reference under section 22 to which the intervention notice relates, could not have been made earlier than 4 months before the date on which it is to be made.
Where the duty or power to make a reference under section 22 or 45(2) or (3), or the power to give an intervention notice under section 42, applies as mentioned in subsection (3), references in this Part to the creation of a relevant merger situation shall be construed accordingly.
The Secretary of State may by order amend or replace the conditions which determine for the purposes of this Part whether a relevant merger situation has been created.
The Secretary of State shall not exercise his power under subsection (1)—
to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;
to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.
to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.
In exercising his power under subsection (1) to amend or replace the condition mentioned in paragraph (b) of subsection (2) of section 23 or any condition which for the time being applies instead of it, the Secretary of State shall, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength which results from the enterprises concerned having ceased to be distinct.
Before making an order under this section the Secretary of State shall consult the CMA.
In exercising the power under subsection (1) to amend or replace the condition mentioned in subsection (4D) or (4E) of section 23 or any condition which for the time being applies instead of it, the Secretary of State must, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength that at least one of the enterprises concerned would have had if the enterprises concerned had not ceased to be distinct enterprises.
An order under this section may provide for the delegation of functions to the decision-making authority.
OFCOM have the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of their functions under this Part.
That function is to be carried out with a view to (among other things) ensuring that OFCOM have sufficient information to take informed decisions and to carry out their other functions effectively.
In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research.
Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.
The CMA has the function of obtaining, compiling and keeping under review information about matters which may be relevant to the Secretary of State in deciding whether to give a special intervention notice mentioning a consideration specified in section 58(2A) to (2C).
That function is to be carried out with a view to (among other things) ensuring that the Secretary of State is aware of cases where, in the opinion of the CMA, he might wish to consider giving such a notice.
That function does not extend to obtaining, compiling or keeping under review information with a view to carrying out a detailed analysis in each case of the operation in relation to that case of the consideration specified in section 58(2A) to (2C).
Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.
Any power of the Secretary of State to make an order or regulations under this Part—
may be exercised so as to make different provision for different cases or different purposes; and
includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
The power of the Secretary of State under section 34, 59(6A) , 70G or 123 (including that power as extended by subsection (2) above) , or paragraph 15 of Schedule 6B, may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
The power of the Secretary of State under section 34ZC(6), 40(8), 41B(6), 44(11), 52(8) (including that enactment as applied by section 65(3)), 58(3), ... 73B(6)... or 102 as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
... An order made by the Secretary of State under section 28 (including that enactment as applied by section 42(5) and 59(5)), 34ZC(6), 40(8), 41B(6), 52(8) (including that enactment as applied by section 65(3)), 59(6A)(a), 70C, 73B(6) ..., 114(3)(b) or (4)(b) or 121 or Schedule 7 is subject to the negative procedure.
An order made by the Secretary of State under section 34, 44(11), section 59(6A)(b), ... 102, 123 or 128(6) is subject to the affirmative procedure.
Regulations made under section 68A, 94AB(9) or 111(9) are subject to the negative procedure.
An order made by the Secretary of State under section 58(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.
In calculating the period of 28 days mentioned in subsection (7), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
Regulations made under section 70G, 94AB(7) or 111(7A), or paragraph 15 of Schedule 6B, are subject to the affirmative procedure.
If an order made by the Secretary of State ceases to have effect by virtue of subsection (7), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.
Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.
If, apart from this subsection, an order made by the Secretary of State under section 58(3) or 70G, or paragraph 15 of Schedule 6B would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.
Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of— he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.
a director, manager, secretary or other similar officer of the body corporate, or
a person purporting to act in such a capacity,
Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
Where an offence under this Part is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, or to be attributable to any neglect on the part of a partner, he as well as the partnership commits the offence and shall be liable to be proceeded against and punished accordingly.
In subsection (3) “partner” includes a person purporting to act as a partner.
This section applies in relation to any document required or authorised under this Part to be served on a person by the CMA, OFCOM or the Secretary of State.
by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;
if the person is a body corporate other than a limited liability partnership, by serving it in accordance with paragraph (a) on the secretary of the body;
if the person is a limited liability partnership, by serving it in accordance with paragraph (a) on a member of the partnership; or
if the person is a partnership, by serving it in accordance with paragraph (a) on a partner or a person having the control or management of the partnership business.
The document may be served by—
delivering it to the person,
leaving it at the person’s proper address,
sending it by post to the person at that address, or
sending it to the person by email to their email address.
A document may be served on a body corporate by giving it to any officer of that body.
A document may be served on a partnership by giving it to any partner or a person who has the control or management of the partnership business.
A document may be served on an unincorporated body or association (other than a partnership) by giving it to any member of the governing body of the association.
A person’s proper address is—
in a case where the person has specified an address as one at which the person, or someone acting on the person’s behalf, will accept service of documents, that address;
in any other case, the address determined in accordance with subsection (7).
A person’s “proper address” is (if subsection (6)(a) does not apply)—
in the case of a body corporate, its registered or principal office;
in the case of a partnership, the principal office of the partnership;
in the case of an unincorporated body or association, the principal office of the body or association;
in a case where none of paragraphs (a) to (c) apply, any address at which the CMA, OFCOM or the Secretary of State believes, on reasonable grounds, that the document will come to the attention of the person.
A person’s email address is—
any email address published for the time being by that person as an address for contacting that person, or
if there is no such published address, any email address by means of which the CMA, OFCOM or the Secretary of State believes, on reasonable grounds, that the document will come to the attention of that person.
In the case of— references to its principal office include references to its principal office in the United Kingdom or, if it has no principal office in the United Kingdom, any place in the United Kingdom where it carries on business or conducts activities.
a body corporate registered outside the United Kingdom,
a partnership carrying on business outside the United Kingdom, or
any other body with offices outside the United Kingdom,
In this section “officer”, in relation to any body corporate, means a director, manager, secretary or other similar officer of the body.
This section does not limit any other lawful means of serving a document on a person.
Associated persons, and any bodies corporate which they or any of them control, shall be treated as one person—
for the purpose of deciding under section 26 whether any two enterprises have been brought under common ownership or common control;
for the purpose of determining what activities are carried on by way of business by any one person so far as that question arises in connection with paragraph 13(2) of Schedule 8.
for the purposes of section 58(2C); ...
for the purposes of section 70A(3);
Subsection (1) shall not exclude from section 26 any case which would otherwise fall within that section.
A reference under section 22, 33, 45 , 62, 68B or 68C (whether or not made by virtue of this section) may be framed so as to exclude from consideration, either altogether or for a specified purpose or to a specified extent, any matter which, apart from this section, would not have been taken into account on that reference.
For the purposes of this section— shall be regarded as associated with one another.
any individual and that individual’s spouse , civil partner or partner and any relative, or spouse or partner of a relative, of that individual or of that individual’s spouse , civil partner or partner;
any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;
persons carrying on business in partnership and the spouse , civil partner or partner and relatives of any of them; or
two or more persons acting together to secure or exercise control of a body of persons corporate or unincorporate or to secure control of any enterprise or assets,
The reference in subsection (1) to bodies corporate which associated persons control shall be construed in accordance with section 26(3) and (4).
In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild of any person, or anyone adopted by a person, whether legally or otherwise, as his child being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a spouse , civil partner or partner shall include a former spouse , civil partner or partner.
References in this Part to the supply of services shall be construed in accordance with this section; and references in this Part to a market for services and other related expressions shall be construed accordingly.
The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.
The supply of services includes—
performing for gain or reward any activity other than the supply of goods;
rendering services to order;
the provision of services by making them available to potential users.
The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.
The supply of services includes making arrangements by means of a relevant agreement (within the meaning of paragraph 17 of Schedule 3A to the Communications Act 2003 (the electronic communications code)) for sharing the use of electronic communications apparatus.
The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State may by order specify.
In this Part, unless the context otherwise requires—
a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), or
For the purposes of this Part any two bodies corporate are interconnected if— and in this Part “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.
one of them is a body corporate of which the other is a subsidiary; or
both of them are subsidiaries of one and the same body corporate;
References in this Part to a person carrying on business include references to a person carrying on business in partnership with one or more other persons.
Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as he considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.
In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column. Expression Provision of this Act Action (and the taking of action) Section 129(1) Adverse public interest finding Section 54(3) Agreement Section 129(1) Anti-competitive outcome Section 35(2) Broadcasting Section 44(9) Business (and carrying on business) Section 129(1) and (3) Change of circumstances Section 129(1) . . . . . . The CMA Section 273 . . . . . . Consumer Section 129(1) Customer Section 129(1) Date of reference Section 39(9) The decision-making authority Section 22(7) . . . Section 129(1) Enactment Section 129(1) Energy network enterprise Section 68A Energy network merger Section 68A Enforcement order Section 86(6) Enforcement undertaking Section 89(2) Enterprise Section 129(1) Enterprises ceasing to be distinct Section 26(1) European Merger Regulations Section 129(1) Fast-track reference request section 34ZD(3) Final determination of matter to which intervention notice relates Section 43(4) and (5) Final determination of matter to which special intervention notice relates Section 60(4) and (5) Final determination of reference under section 22 , 33, 68B or 68C Section 79(1) and (2) Foreign state intervention notice Section 70A (1) Foreign state newspaper merger situation Section 70A (3) Goods Section 129(1) Interconnected bodies corporate (and a group of interconnected bodies corporate) Section 129(2) Intervention notice Section 42(2) Market for goods or services Section 22(6) Market in the United Kingdom Section 22(6) Media enterprise Section 58A(1) Media public interest consideration Section 44(8) Merger notice Section 96(2) Modify Section 129(1) News media Section 58(2F) News media enterprise Paragraph 20A(5A) of Schedule 8 News programme Section 58(2G) Newspaper Section 44(10) Newspaper enterprise Section 58A(3) Notice Section 129(1) Notified arrangements Section 96(6) OFCOM Section 43(6) . . . . . . Orders under section 81 Section 81(6) Orders under paragraph 2 of Schedule 7 Paragraph 2(7) of Schedule 7 The period for considering a merger notice Sections 97 and 98 Price Section 129(1) Public interest consideration Section 42(3) Public interest consideration being finalised Section 42(8) Publish Section 129(4) References under section 22, 33, 45 , 62, 68B or 68C Sections 37(2) (including as applied by Schedule 5A), 49(1), 56(8) and 64(2) Relevant customer benefit Section 30 Relevant merger situation Section 23 (as read with other enactments) Reports of the CMA Section 118(5) Special intervention notice Section 59(2) Special merger situation Section 59(3) Subordinate legislation Section 129(1) Subsidiary Section 129(1) Supply (in relation to the supply of goods) Section 129(1) The supply of services (and a market for services etc.) Section 128 Transferred EU merger commitments Section 95A(6) The turnover in the United Kingdom of an enterprise Section 28(2) (including as applied by Schedule 5A) The UK financial system Section 129(1) Undertakings under section 80 Section 80(6) . . . . . . United Kingdom national Section 129(1) Working day Section 129(1)
The CMA may, subject to subsection (4), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
For the purposes of this Part any reference to a feature of a market in the United Kingdom for goods or services shall be construed as a reference to—
the structure of the market concerned or any aspect of that structure;
any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or
any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services.
In subsection (2) “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.
In a case where the feature or each of the features concerned falls within subsection (2)(b) or (c), a reference under subsection (1) may be made in relation to more than one market in the United Kingdom for goods or services.
No reference shall be made under this section if—
the making of the reference is prevented by section 156(A1) or (1); or
a reference has been made under section 132 or 140A(6) in relation to the same matter but has not been finally determined.
References in this Part to a market investigation reference being finally determined shall be construed in accordance with section 183(3) to (6).
In this Part— and references to a market for goods or services include references to a market for goods and services.
Subsection (3) applies where, in relation to any goods or services—
Subsection (3) also applies where, in relation to any goods or services, the appropriate Minister—
has brought to the attention of the CMA information which the appropriate Minister considers to be relevant to the question of whether the CMA should make a reference under section 131; but
is not satisfied that the CMA will decide, within such period as the appropriate Minister considers to be reasonable, whether to publish a market study notice in relation to the matter concerned.
the appropriate Minister is not satisfied with a decision of the CMA not to make a reference under section 131; and
The appropriate Minister may, subject to subsection (4), make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
in a case in which the CMA has published a market study notice under section 130A, the period permitted by section 131B for the preparation and publication by the CMA of the market study report has expired.
No reference shall be made under this section if—
In this Part “the appropriate Minister” means—
the Secretary of State; ...
the Secretary of State and one or more than one other Minister of the Crown acting jointly;
the Scottish Ministers and the Secretary of State acting jointly; or
the Scottish Ministers, the Secretary of State and one or more than one other Minister of the Crown, acting jointly.
In a case where the feature or each of the features concerned falls within section 131(2)(b) or (c), a reference under subsection (3) may be made in relation to more than one market in the United Kingdom for goods or services.
the making of the reference is prevented by section 156(A1) or (1); or
a reference has been made under section 140A(6) in relation to the same matter but has not been finally determined.
This section applies to a case where the CMA has published a market study notice and—
the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or
a representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that such a reference should be made but the CMA is proposing not to make such a reference.
The CMA shall—
publish notice of the proposal concerned; and
consult the relevant persons about the proposal, in such manner as it considers practicable, before deciding whether to make a reference.
The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious.
For the purposes of subsection (2), a person is a “relevant person” if the CMA considers that its decision whether to make a reference is likely to have a substantial impact on the person's interests.
In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal.
In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to—
the restrictions imposed by the time-table for making the decision (see section 131B); and
any need to keep what is proposed, or the reasons for it, confidential.
A market investigation reference shall, in particular, specify—
the enactment under which it is made;
the date on which it is made; ...
in the case of an ordinary reference, the description of goods or services to which the feature or combination of features concerned relates; and
in the case of a cross-market reference, the feature or features concerned and the descriptions of goods or services to which it or they relate.
For the purposes of subsection (1A), a reference may (for example) specify or describe features that exist in connection with—
a supply or, in the case of a cross-market reference, supplies, of a description specified in the reference, of the goods or services concerned; or
an acquisition or, in the case of a cross-market reference, acquisitions, of a description specified in the reference, of the goods or services concerned.
A market investigation reference may be framed so as to require the group constituted by the chair of the CMA in respect of the reference to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of particular features of such markets.
A description of the kind mentioned in subsection (2)(a) or (b) may, in particular, be by reference to—
the place where the goods or services are supplied or acquired; or
the persons by or to whom they are supplied or by or from whom they are acquired.
For the purposes of subsection (1A), “particular features” means features specified in the reference.
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Where the CMA has published a market study notice it shall, within the period of 12 months beginning with the date on which it publishes the notice, prepare and publish a report (referred to in this Part as a “market study report”) which sets out—
the findings of the CMA in relation to the matter specified in the notice; and
the action (if any) which the CMA proposes to take , or has taken, in relation to the matter.
In a case to which section 131A applies, the market study report shall, in particular, contain—
the decision of the CMA to make a reference under section 131 in relation to the matter specified in the market study notice, the decision to accept an undertaking under section 154A instead of, or in addition to, making such a reference or (as the case may be) the decision otherwise not to make such a reference;
the CMA's reasons for the decision; and
such information as the CMA considers appropriate for facilitating a proper understanding of its reasons for the decision.
Where a market study report contains a decision of the CMA to make a reference under section 131 in relation to a matter, the CMA shall, at the same time as it publishes the report, make the reference.
Subsections (4) to (6) are subject to section 140A (duty of Secretary of State to refer in public interest intervention cases).
Where the CMA— the CMA may subsequently make a reference under section 131 in relation to the matter (without first publishing a market study notice in relation to the matter) only where subsection (9) applies.
has published a market study notice, and
has decided not to make a reference under section 131 in relation to the matter specified in the notice,
This subsection applies where—
the reference under section 131 is made two years or more after the publication of the market study report in relation to the market study notice, or
there has been a material change in circumstances since the preparation of the report.
The Secretary of State may by order amend section 131B so as to alter one or more of the following periods—
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the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period.
But no alteration may be made by virtue of subsection (1) which results in—
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the period for the time being mentioned in subsection (4) exceeding 12 months.
Before making an order under this section the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
Where the CMA is proposing to carry out its functions under section 5 in relation to a matter for the purposes mentioned in subsection (2), the CMA must publish a notice under this section (referred to in this Part as a “market study notice”).
The purposes are—
to consider the extent to which a matter in relation to the acquisition or supply of goods or services of one or more than one description in the United Kingdom has or may have effects adverse to the interests of consumers; and
to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects.
A market study notice shall, in particular, specify—
the matter in relation to which the CMA is proposing to carry out its functions under section 5;
the period during which representations may be made to the CMA in relation to the matter; and
the dates by which the CMA is required to comply with the requirements imposed on it by sections 131A and 131B.
The CMA shall, on an ordinary reference, decide whether any relevant feature of each relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
For the purposes of this Part, in relation to an ordinary reference, there is an adverse effect on competition if any relevant feature of a relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
In subsections (1) and (2) “relevant market” means—
in the case of subsection (2) so far as it applies in connection with a possible reference, a market in the United Kingdom—
for goods or services of a description to be specified in the reference; and
which would not be excluded from investigation by virtue of section 133(2); and
in any other case, a market in the United Kingdom—
for goods or services of a description specified in the reference concerned; and
which is not excluded from investigation by virtue of section 133(2).
The CMA shall, if it has decided on a market investigation reference that there is an adverse effect on competition, decide the following additional questions—
whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
For the purposes of this Part, in relation to a cross-market reference, there is an adverse effect on competition if a feature or a combination of the features specified in the reference, as that feature or combination of features relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
For the purposes of this Part, in relation to a market investigation reference, there is a detrimental effect on customers if there is a detrimental effect on customers or future customers in the form of—
higher prices, lower quality or less choice of goods or services in any market in the United Kingdom (whether or not the market or markets to which the feature or features concerned relate); or
less innovation in relation to such goods or services.
In subsections (1) and (2), “relevant feature” means—
any feature of a relevant market which is not excluded from investigation by virtue of section 133(1A), or
a combination of such features.
In deciding the questions mentioned in subsection (4), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition and any detrimental effects on customers so far as resulting from the adverse effect on competition.
In deciding the questions mentioned in subsection (4), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features concerned of the market or markets concerned.
For the purposes of this Part a benefit is a relevant customer benefit of a feature or features of a market if—
it is a benefit to customers or future customers in the form of—
lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets to which the feature or features concerned relate); or
greater innovation in relation to such goods or services; and
the CMA or (as the case may be) the Secretary of State believes that—
the benefit has accrued as a result (whether wholly or partly) of the feature or features concerned or may be expected to accrue within a reasonable period as a result (whether wholly or partly) of that feature or those features; and
the benefit was, or is, unlikely to accrue without the feature or features concerned.
Where a reference is made to the chair of the CMA under section 131, 132 or 140A for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
sections 134 to 137, except for section 135(1);
sections 138 to 138B so far as relating to an adverse effect on competition in respect of which the CMA is required to take action in accordance with section 138(2) within the period permitted by section 138A(1);
sections 140B to 145, 148, 148A and 151;
section 154A, so far as relating to undertakings in lieu of a report;
sections 157 and 158;
section 159;
section 160, except for subsection (6) of that section;
section 161, except for subsection (5) of that section;
section 161C;
section 162(4), so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
section 164(2)(b), so far as relating to an enforcement order made on behalf of the CMA by the group;
sections 167 and 167A, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
section 168;
section 169, so far as relating to a decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section;
section 172, so far as relating to anything done on behalf of the CMA by the group;
section 174, where the permitted purpose in question relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
sections 174A to 174D, so far as relating to a notice given under section 174 on behalf of the CMA by the group;
section 179(5)(b), so far as relating to a decision of the group;
Schedule 10, so far as relating to an enforcement undertaking or enforcement order which the group is considering accepting or making, or which the group has accepted or made, on behalf of the CMA.
Nothing in subsection (1) prevents the CMA Board from carrying out a function of the CMA under or by virtue of the following provisions of this Part where the group constituted as mentioned in subsection (1) has ceased to exist—
section 154A, so far as relating to undertakings in lieu of a report;
section 160 and Schedule 10, so far as relating to the making of an order under section 160;
sections 159 to 161 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
section 162(4);
section 162B;
section 164(2)(b);
sections 167 and 167A.
The CMA or (as the case may be) the appropriate Minister may at any time vary a market investigation reference made by it under section 131 or (as the case may be) by the appropriate Minister under section 132.
The Office of Fair Trading... appropriate Minister shall consult the CMA before varying any such reference made by him.
Subsection (2) shall not apply if the CMA has requested the variation concerned.
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The CMA shall prepare and publish a report on a market investigation reference within the period permitted by section 137.
The report shall, in particular, contain—
the decisions of the CMA on the questions which it is required to answer by virtue of section 134;
its reasons for its decisions; and
any decision of the CMA under section 154A to accept an undertaking partially in lieu of a report;
such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
The CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
Where a reference has been made by the appropriate Minister under section 132 the CMA shall, at the same time as the report under this section is published, give it to the appropriate Minister.
in the case of a reference under section 131, give it to the OFT; and
in the case of a reference under section 132, give it to the appropriate Minister and give a copy of it to the OFT.
Where a reference has been made by the CMA under section 131 or by the appropriate Minister under section 132 in circumstances in which a reference could have been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the CMA shall, at the same time as the report under this section is published, give a copy of it to the relevant sectoral regulator concerned.
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In this Part “relevant sectoral enactment” means—
in relation to the Director General of Telecommunications, section 50 of the Telecommunications Act 1984 (c. 12);
in relation to the Gas and Electricity Markets Authority, section 36A of the Gas Act 1986 (c. 44) , section 43 of the Electricity Act 1989 or (as the case may be) section 36 of the Energy Act 2023;
in relation to the Water Services Regulation Authority , section 31 of the Water Industry Act 1991 (c. 56);
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in relation to the Office of Rail and Road, section 67 of the Railways Act 1993 (c. 43);
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in relation to the Financial Conduct Authority, section 234I of the Financial Services and Markets Act 2000;
in relation to the Civil Aviation Authority, section 86 of the Transport Act 2000 (c. 38). or section 60 of the Civil Aviation Act 2012;
in relation to the Office of Communications, sections 370 and 371 of the Communications Act 2003.
in relation to the Northern Ireland Authority for Utility Regulation, Article 46 of the Electricity (Northern Ireland) Order 1992, Article 23 of the Gas (Northern Ireland) Order 1996 or Article 29 of the Water and Sewerage Services (Northern Ireland) Order 2006.
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in relation to the Payment Systems Regulator, section 59 of the Financial Services (Banking Reform) Act 2013.
In this Part “relevant sectoral regulator” means the Director General of Telecommunications , the Gas and Electricity Markets Authority, the Water Services Regulation Authority, . . . , the Office of Rail and Road, the Financial Conduct Authority,. . . , the Civil Aviation Authority or the Office of Communications, the Northern Ireland Authority for Utility Regulation ... or the Payment Systems Regulator.
The Secretary of State may by order modify subsection (7) or (8).
In this section “the Payment Systems Regulator” means the body established under section 40 of the Financial Services (Banking Reform) Act 2013.
The CMA shall prepare and publish its report under section 136 within the period of 18 months beginning with the date of the market investigation reference concerned.
Subsection (1) is subject to section 151(3) and (5).
The Secretary of State may by order amend this section so as to alter one or more of the following periods—
the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;
the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.
The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so.
But no alteration shall be made by virtue of subsection (3) which results in—
the period for the time being mentioned in subsection (1) exceeding 18 months; or
the period for the time being mentioned in subsection (2A) exceeding 6 months.
An extension under subsection (2A) shall come into force when published under section 172.
An order under subsection (3) shall not affect any period of time within which the CMA is under a duty to prepare and publish its report under section 136 in relation to a market investigation reference if the CMA is already under that duty in relation to that reference when the order is made.
No more than one extension is possible under subsection (2A).
Before making an order under subsection (3) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
References in this Part to the date of a market investigation reference shall be construed as references to the date specified in the reference as the date on which it is made.
Subsection (2) applies where a report of the CMA has been prepared and published under section 136 within the period permitted by section 137 and contains the decision that there is one or more than one adverse effect on competition.
The CMA shall, within the period permitted by section 138A, in relation to each adverse effect on competition, take such action under section 159 or 161 as it considers to be reasonable and practicable—
to remedy, mitigate or prevent the adverse effect on competition concerned; and
to remedy, mitigate or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the adverse effect on competition.
The decisions of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the CMA otherwise has a special reason for deciding differently.
In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
The CMA shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
no detrimental effect on customers has resulted from the adverse effect on competition; and
the adverse effect on competition is not being remedied, mitigated or prevented.
Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA—
has begun an implementation trial under section 161C, or
considers that it is not reasonably practicable to discharge its duty under section 138(2) in accordance with subsection (1) as a result of such an implementation trial in respect of another adverse effect on competition.
Subsection (1) applies in relation to any other adverse effect on competition.
Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).
Where this subsection applies, the CMA shall discharge its duty under section 138(2) within the period of 6 months beginning with the date on which it publishes the report concerned under section 136.
The CMA may extend, by no more than 4 months, the period within which its duty under section 138(2) is required to be discharged in accordance with subsection (1) if it considers that there are special reasons for doing so.
The CMA may extend the period within which its duty under section 138(2) is required to be discharged if it considers that—
a person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 174 which was given in relation to the reference; and
the failure is preventing the CMA from properly discharging its duty under section 138(2).
An extension under subsection (2) or (3) shall come into force when published under section 172.
An extension under subsection (3) continues in force until—
the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
the CMA publishes its decision to cancel the extension.
A period extended under section 138A(2) may also be extended under section 138A(3), and a period extended under section 138A(3) may also be extended under section 138A(2).
No more than one extension is possible under section 138A(2).
Where a period is extended or further extended under section 138A(2) or (3), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
Subsection (5) applies where—
the period within which the CMA shall discharge its duty under section 138(2) is further extended;
the further extension and at least one previous extension is made under section 138A(3); and
the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) shall be disregarded.
The Secretary of State may by order amend section 138A so as to alter one or more of the following periods—
the period of 6 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;
the period of 4 months mentioned in subsection (2) or any period for the time being there mentioned in substitution for that period.
But no alteration shall be made by virtue of subsection (6) which results in—
the period for the time being mentioned in section 138A(1) exceeding 6 months; or
the period for the time being mentioned in section 138A(2) exceeding 4 months.
Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
The Secretary of State may, within the permitted period, give a notice to the CMA if the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the matter.
a market investigation reference has been made to the Commission;
no more than four months has passed since the date of the reference;
the reference is not finally determined; and
the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the case.
This section applies where—
the CMA has published a market study notice in relation to a matter; or
the CMA has begun the process of consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section.
The Secretary of State may, within the permitted period, give a notice to the CMA if—
the CMA is considering whether to accept—
an undertaking in lieu of a reference under section 154A in relation to the matter; or
an undertaking varying or superseding any such undertaking;
the CMA has published a notice under section 155(1) or (4); and
the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the proposal to accept the undertaking.
In this Part “intervention notice” means a notice under subsection (1) or (2).
For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (a) of subsection (A1), is the period beginning with the publication of the market study notice and ending with—
the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter;
the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter;
the making of such a reference in relation to the matter; or
in a case where the period permitted by section 131B for the preparation and publication by the CMA of the market study report in relation to the matter has expired and no such report has been prepared or published, the end of that period.
No more than one intervention notice shall be given under subsection (1) in relation to the same matter.
For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (b) of subsection (A1), is the period beginning with the date on which the CMA begins the process of consultation concerned and ending with—
the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter concerned;
the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter; or
the making of such a reference in relation to the matter.
For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 153 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.
Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
For the purposes of subsection (2), the permitted period is—
where the CMA publishes a notice under section 155(1), the period within which representations may be made in relation to the proposed undertaking (as to which, see section 155(2)(f));
where the CMA publishes a notice under section 155(4), the period within which representations may be made in relation to the proposed modifications to the proposed undertaking (as to which, see section 155(5)(c)).
For the purposes of this Part a public interest consideration is finalised if—
it is specified in section 153 otherwise than by virtue of an order under subsection (3) of that section; or
it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (6) of section 181 and within the period mentioned in that subsection.
An intervention notice shall not be given under subsection (2) in relation to a proposal to accept an undertaking if the proposal relates to a matter in respect of which an intervention notice under subsection (1) has already been given.
No more than one intervention notice shall be given under subsection (2) in relation to the same proposed undertaking or in relation to proposed undertakings which do not differ from each other in any material respect.
In this section, a reference to the acceptance of an undertaking shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of this section.
An intervention notice under section 139(1) shall state—
the matter to which the market study notice or (as the case may be) the consultation under section 169 concerned relates;
the date of publication of that notice or (as the case may be) on which the process of consultation began;
the public interest consideration or considerations which are, or may be, relevant to the matter; and
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the matter, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
The Secretary of State may at any time revoke an intervention notice which has been given under section 139(1) and which is in force.
An intervention notice under section 139(1) shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
For the purposes of subsection (4) a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter if—
the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired and no such report has been so prepared or no such action has been taken;
the CMA accepts an undertaking fully in lieu of a reference under section 154A;
the CMA decides under section 145(1) to terminate its investigation;
the CMA publishes notice that it has otherwise decided not to make a reference under section 131 in relation to the matter;
the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;
the period permitted for the preparation by the CMA of the market study report in relation to the matter and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3) has expired and no such report has been so prepared or no such action has been taken;
the Secretary of State fails to make and publish a decision under subsection (2) of section 146 within the period required by subsection (3) of that section or (as the case may be) fails to make and publish a decision under subsection (2) of section 146A within the period required by subsection (6) of that section;
the Secretary of State makes a reference under section 140A(5) in relation to the matter;
the Secretary of State decides under section 146(2) that no eligible public interest consideration is relevant or (as the case may be) decides under section 146A(2) to make no finding at all in relation to the matter;
the Secretary of State decides under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
the Secretary of State accepts an undertaking under section 159 or makes an order under section 161; or
the Secretary of State decides to revoke the intervention notice concerned.
An intervention notice under section 139(1) shall also cease to be in force if—
it mentions a public interest consideration which was not finalised on the giving of the notice or public interest considerations which, at that time, were not finalised;
no other public interest consideration is mentioned in the notice;
at least 24 weeks has elapsed since the giving of the notice;
the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks; and
the Secretary of State has not, by the end of that period of 24 weeks, made a reference under section 140A in relation to the matter.
For the purposes of subsections (4) and (5) the time when a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter is—
in a case falling within subsection (5)(zc), (a) or (d), the expiry of the period concerned;
in a case falling within subsection (5)(za), the acceptance of the undertaking concerned;
in a case falling within subsection (5)(b), (e), (f) or (h), the making of the decision concerned;
in a case falling within subsection (5)(zb), the publication of the notice concerned;
in a case falling within subsection (5)(c), the publication of the report concerned; and
in a case falling within subsection (5)(g), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
in a case falling within subsection (5)(zd), the making of the reference concerned;
Subsection (4D) applies in a case where—
an intervention notice ceases to be in force in accordance with subsection (4A);
the CMA has, before the time at which the notice ceases to be in force, prepared a market study report in relation to the matter within the period permitted by section 131B(4) and given it to the Secretary of State in accordance with section 140A(3)(b); and
the report contains the decision of the CMA that it should make a reference in relation to the matter concerned under section 131.
In subsection (6)(d) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action under section 147(2) or (as the case may be) 147A(2) involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (5)(g) and (6)(d).
Subsection (4D) also applies in a case where—
an intervention notice ceases to be in force in accordance with subsection (4A); and
the CMA has, before the time at which the notice ceases to be in force—
decided that it should make an ordinary reference or a cross-market reference under section 131 in relation to the matter concerned; and
given a document containing its decision, the reasons for it and such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision to the Secretary of State in accordance with section 140A(3)(c).
In a case to which this subsection applies—
the CMA shall, as soon as reasonably practicable, make a reference in relation to the matter under section 131; and
the reference is to be treated for the purposes of this Part as having been made in accordance with the requirements imposed by this Part.
In subsection (6)(za) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (5)(za) and (6)(za).
This section applies where the Secretary of State makes a restricted PI reference.
The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
The CMA shall, if it has decided that there is an adverse effect on competition, decide the following additional questions—
whether action should be taken by the Secretary of State under section 147 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
whether the CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148(1))—
whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
In deciding the questions mentioned in subsections (3) and (4), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
In deciding the questions mentioned in subsections (3) and (4), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
This section applies where—
the CMA has prepared a market study report in relation to a matter within the period permitted by section 131B(4);
an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA would (but for this section) be required to publish the report; and
the report contains the decision of the CMA that it should make an ordinary reference or a cross-market reference in relation to the matter under section 131.
This section also applies where—
the CMA has conducted a consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section;
the CMA has decided that it should make an ordinary reference or a cross-market reference in relation to the matter concerned under section 131; and
an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA makes that decision.
The CMA—
shall not exercise the power under section 131 to refer the matter;
in a case falling within subsection (1), shall not publish the market study report under section 131B(4) and shall instead, within the period mentioned in section 131B(4), give the report to the Secretary of State; and
in a case falling within subsection (2), shall give to the Secretary of State a document containing—
its decision and the reasons for its decision; and
such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision.
The Secretary of State shall decide whether any public interest consideration which was mentioned in the intervention notice is relevant to the matter in question.
Where the Secretary of State decides that there is no relevant public interest consideration—
the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; and
the reference is to be treated for the purposes of this Part as an ordinary reference or (as the case may be) a cross-market reference made under section 131 in accordance with the requirements imposed by this Part.
Where the Secretary of State decides that there is one or more than one relevant public interest consideration, the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.
The Secretary of State shall specify in a reference made under subsection (6)—
the relevant public interest consideration or considerations; and
whether the reference is a restricted PI reference or a full PI reference (as to which, see sections 141 and 141A respectively).
Where the Secretary of State makes a full PI reference under subsection (6), the reference shall also specify whether the Secretary of State proposes to appoint a public interest expert under section 141B.
For the purposes of this Part, a reference under subsection (6) is to be treated—
in a case where the decision of the CMA was that it should make an ordinary reference, as an ordinary reference;
in a case where the decision of the CMA was that it should make a cross-market reference, as a cross-market reference.
In a case falling within subsection (1), the Secretary of State shall publish the market study report concerned at the same time as the Secretary of State makes a reference under this section.
In a case falling within subsection (2), the Secretary of State shall publish the document given to the Secretary of State by the CMA under subsection (3)(c), at the same time as the Secretary of State makes a reference under this section.
In this Part—
Where the Secretary of State makes a restricted PI reference or a full PI reference, the CMA shall prepare a report on the reference and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) within the period permitted by section 144.
The report shall, in particular, contain—
the decisions of the CMA on the questions which it is required to answer by virtue of section 141 or (as the case may be) 141A;
its reasons for its decisions; ...
such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions; and
in the case of a report in relation to a full PI reference in respect of which the Secretary of State appointed a public interest expert, a summary of the views of the expert.
The CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
A summary of the views of a public interest expert in a report under this section shall be approved by the expert before action is taken in relation to the report under section 143A(2) or (3).
The Secretary of State may at any time vary a restricted PI reference or a full PI reference.
The Secretary of State shall consult the CMA before varying any such reference.
But subsection (2) does not apply if the CMA requested the variation concerned.
No variation under this section is capable of altering the public interest consideration or considerations specified in the reference.
The CMA shall publish the report if it contains—
the decision of the CMA that there is no adverse effect on competition; or
the decisions of the CMA that there is one or more than one adverse effect on competition but, on the question mentioned in section 141(4)(a) and in relation to each adverse effect on competition, that no action should be taken by it.
This section applies in relation to a report prepared under section 142 in respect of a restricted PI reference.
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in the case of a reference under section 131, give it to the OFT; and
in the case of a reference under section 132, give it to the appropriate Minister and give a copy of it to the OFT.
Where the report contains the decisions of the CMA that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it, the CMA shall give the report to the Secretary of State.
The Secretary of State shall publish, no later than publication of his decision under section 146(2) in relation to the case, a report of the CMA given to him under subsection (3) and not required to be published by virtue of section 148(2).
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in the case of a reference under section 131, to the OFT; and
in the case of a reference under section 132, to any other Minister of the Crown who made the reference and to the OFT.
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in the case of a report published under subsection (1), the Commission; and
in the case of a report published under subsection (4), the Secretary of State.
The CMA shall, within the period of 18 months beginning with the relevant date, prepare its report under section 142 and publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3).
The Secretary of State may by order amend —
For the purposes of subsection (1), the “relevant date” is—
in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference;
in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following—
the date of the appointment of the expert;
the date on which the Secretary of State gives notice to the CMA that the Secretary of State no longer intends to appoint such an expert;
the end of the period of 2 months beginning with the date of the reference.
No alteration shall be made by virtue of subsection (2) which results in —
The CMA may extend, by no more than 6 months, the period within which its report under section 142 is to be prepared and action is to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if it considers that there are special reasons for doing so.
An order under subsection (2) shall not affect any period of time within which, in relation to a market investigation reference, the CMA is under a duty to prepare its report under section 142 and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if the CMA is already under that duty in relation to that reference when the order is made.
An extension under subsection (1B) shall come into force when published under section 172.
Before making an order under subsection (2) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
No more than one extension is possible under subsection (1B).
subsection (1) so as to alter the period of 18 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period;
subsection (1B) so as to alter the period of 6 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period.
the period for the time being mentioned in subsection (1) exceeding 18 months; or
the period for the time being mentioned in subsection (1B) exceeding 6 months.
This section applies where the Secretary of State makes a full PI reference.
The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
The CMA shall, if it has decided that there is an adverse effect on competition, decide whether, taking account only of any adverse effect on competition and the admissible public interest consideration or considerations concerned, any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.
The CMA shall, if it has decided that any such feature or combination of features operates or may be expected to operate against the public interest, also decide separately the following additional questions—
whether action should be taken by the Secretary of State under section 147A for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned;
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 concerned; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148A(2))—
whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
In a case where the Secretary of State has appointed a public interest expert under section 141B in relation to a full PI reference, the CMA shall, in deciding the questions mentioned in subsections (4) and (5), have regard, in particular, to the views of the expert.
In deciding the questions mentioned in subsection (5), the CMA shall, in particular, have regard to—
the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and
any detrimental effects on customers so far as resulting from those effects.
In deciding the questions mentioned in subsection (6), the CMA shall, in particular, have regard to—
the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned; and
any detrimental effects on customers so far as resulting from it.
In deciding the questions mentioned in subsections (5) and (6), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
In this section, “admissible public interest consideration” means any public interest consideration specified in the reference concerned and which the CMA is not under a duty to disregard.
The CMA shall terminate its investigation under section 142 if—
the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;
no other public interest consideration is mentioned in the notice;
at least 24 weeks has elapsed since the giving of the notice; and
the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks.
Where the intervention notice concerned mentions a public interest consideration which is not finalised on the giving of the notice, the CMA shall not give its report under section 142 to the Secretary of State in accordance with section 143(3) or (as the case may be) 143A(3) unless the period of 24 weeks beginning with the giving of the intervention notice concerned has expired or the public interest consideration concerned has been finalised.
The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which has not been finalised before the giving of the report.
The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.
Subsections (1) to (4) are without prejudice to the power of the CMA to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.
This section applies where the Secretary of State makes a full PI reference.
The Secretary of State may appoint one or more than one person to advise the CMA on the questions mentioned in subsections (4) and (5) of section 141A in relation to the reference.
A person so appointed shall be a person who appears to the Secretary of State to have particular knowledge of, or expertise in, matters relating to a public interest consideration specified in the reference.
Each person so appointed is referred to in this Part as a “public interest expert”.
The terms and conditions of appointment of a public interest expert (including, in particular, as to remuneration) are to be determined by the Secretary of State.
Any appointment of a public interest expert under this section shall be made within the period of 2 months beginning with the date of the reference concerned.
Before appointing a public interest expert the Secretary of State shall consult the chair of the CMA.
Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a restricted PI reference which—
has been prepared under section 142;
contains the decisions that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it; and
has been given to the Secretary of State as required by section 143(3).
The Secretary of State shall decide whether— to any action which is mentioned in the report by virtue of section 141(4)(a) and (c) and which the CMA should take for the purpose of remedying, mitigating or preventing any adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted or may be expected to result from any adverse effect on competition.
any eligible public interest consideration is relevant; or
any eligible public interest considerations are relevant;
The Secretary of State shall make and publish his decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.
In this section “eligible public interest consideration” means a public interest consideration which—
was mentioned in the intervention notice concerned; and
was not disregarded by the CMA for the purposes of its report under section 142.
Subsection (2) applies where the Secretary of State—
has decided under subsection (2) of section 146 within the period required by subsection (3) of that section that an eligible public interest consideration is relevant as mentioned in subsection (2) of that section or eligible public interest considerations are so relevant; and
has published his decision within the period required by subsection (3) of that section.
The Secretary of State may, in relation to any adverse effect on competition identified in the report concerned, take such action under section 159 or 161 as he considers to be—
reasonable and practicable—
to remedy, mitigate or prevent the adverse effect on competition concerned; or
to remedy, mitigate or prevent any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
appropriate in the light of the eligible public interest consideration concerned or (as the case may be) the eligible public interest considerations concerned.
In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to—
the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition; and
the report of the CMA under section 142.
In having regard by virtue of subsection (3) to the report of the CMA under section 142, the Secretary of State shall not challenge the decision of the CMA contained in the report that there is one or more than one adverse effect on competition.
In making a decision under subsection (2), the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
The Secretary of State shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
no detrimental effect on customers has resulted from the adverse effect on competition; and
the adverse effect on competition is not being remedied, mitigated or prevented.
In this section “eligible public interest consideration” has the same meaning as in section 146.
If— the CMA shall proceed under section 138 as if the report had been prepared and published under section 136 within the period permitted by section 137.
the Secretary of State fails to make and publish his decision under subsection (2) of section 146 within the period required by subsection (3) of that section; or
the Secretary of State decides that no eligible public interest consideration is relevant as mentioned in subsection (2) of that section;
The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (1).
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in the case of a reference under section 131, to the OFT; and
in the case of a reference under section 132, to any Minister of the Crown who made the reference (other than the Secretary of State) and to the OFT.
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In relation to proceedings by virtue of subsection (1), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) shall be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141(4).
Where the CMA, in proceeding by virtue of subsection (1), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141(4), it shall not so proceed without the consent of the Secretary of State.
The Secretary of State shall not withhold his consent under subsection (7) unless he believes that the proposed alternative way of proceeding will operate against the public interest.
For the purposes of subsection (8) a proposed alternative way of proceeding will operate against the public interest only if any eligible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.
In deciding whether to withhold his consent under subsection (7), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.
In this section “eligible public interest consideration” has the same meaning as in section 146.
This section applies in relation to a report prepared under section 142 in respect of a full PI reference.
The CMA shall publish the report if it contains—
the decision of the CMA that there is no adverse effect on competition;
the decision of the CMA that there is an adverse effect on competition but that the feature or combination of features which gave rise to it does not operate and may not be expected to operate against the public interest; or
the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest but, on the question mentioned in section 141A(5)(a), and in relation to each effect adverse to the public interest concerned, that no action should be taken by the Secretary of State.
The CMA shall give the report to the Secretary of State if it contains the decisions of the CMA—
that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest; and
in relation to at least one effect adverse to the public interest concerned, that action should be taken by the Secretary of State.
The Secretary of State shall publish, no later than publication of the Secretary of State's decision under section 146A(2) in relation to the case, a report of the CMA given to the Secretary of State under subsection (3) and not required to be published by virtue of section 148A(3).
Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a full PI reference which—
has been prepared under section 142;
contains the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features that gave rise to an adverse effect on competition operates or may be expected to operate against the public interest and that, in relation to at least one effect adverse to the public interest concerned, action should be taken by the Secretary of State; and
has been given to the Secretary of State as required by section 143A(3).
The Secretary of State shall decide whether to make an adverse public interest finding in relation to the matter and whether to make no finding at all in the matter.
For the purposes of this Part, the Secretary of State makes an adverse public interest finding in relation to a matter if, in relation to that matter, the Secretary of State decides—
that there is an adverse effect on competition;
that there is one or more than one admissible public interest consideration which is relevant to the matter; and
taking account only of any adverse effect on competition and any relevant admissible public interest consideration or considerations, that any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.
The Secretary of State may make no finding at all in a matter only if the Secretary of State decides that there is no admissible public interest consideration which is relevant to a consideration of the matter concerned.
In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept the decision of the CMA as to whether there is an adverse effect on competition in relation to the matter.
The Secretary of State shall make and publish the decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.
In this section “admissible public interest consideration” means a public interest consideration which—
was mentioned in the intervention notice concerned; and
was not disregarded by the CMA for the purposes of its report under section 142.
Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 146A within the period required by subsection (6) of that section to make an adverse public interest finding in relation to a matter and has published the decision within the period so required.
The Secretary of State may take such action under section 159 or 161 as the Secretary of State considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the features or combinations of features in question.
In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to the report of the CMA under section 142.
In making a decision under subsection (2), the Secretary of State may, in particular, have regard to—
the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and
any detrimental effects on customers so far as resulting from those effects.
This section applies if—
the Secretary of State decides under section 146A(2) to make no finding at all in the matter; or
the Secretary of State fails to make and publish the decision under subsection (2) of section 146A within the period required by subsection (6) of that section.
The CMA shall proceed under section 138 as if—
a reference under section 131 had been made (in accordance with the requirements imposed by this Part) instead of a full PI reference; and
its report had been prepared and published under section 136 within the period permitted by section 137.
The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (2).
In relation to proceedings by virtue of subsection (2), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) is to be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141A(6).
Where the CMA becomes under a duty to proceed as mentioned in subsection (2), references in this Part to a reference under section 131, so far as necessary, are to be construed accordingly.
Where the CMA, in proceeding by virtue of subsection (2), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141A(6), it shall not so proceed without the consent of the Secretary of State.
The Secretary of State shall not withhold consent under subsection (6) unless the Secretary of State believes that the proposed alternative way of proceeding will operate against the public interest.
For the purposes of subsection (7) a proposed alternative way of proceeding will operate against the public interest only if any admissible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.
In deciding whether to withhold consent under subsection (6), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.
In this section “admissible public interest consideration” has the same meaning as in section 146A.
An intervention notice under section 139(2) shall state—
the proposed undertaking which may be accepted by the CMA;
the notice under section 155(1) or (4);
the public interest consideration or considerations which are, or may be, relevant to the proposal to accept the undertaking; and
where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the proposal to accept the undertaking, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
The Secretary of State may at any time revoke an intervention notice which has been given under section 139(2) and which is in force.
An intervention notice under section 139(2) shall come into force when it is given and shall cease to be in force on the occurrence of any of the events mentioned in subsection (5).
The events are—
the acceptance by the CMA with the consent of the Secretary of State of an undertaking which is the same as the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) or which does not differ from it in any material respect;
the decision of the CMA to proceed neither with the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) nor a proposed undertaking which does not differ from it in any material respect; or
the decision of the Secretary of State to revoke the intervention notice concerned.
Where an intervention notice under section 139(2) is in force, the CMA shall not, without the consent of the Secretary of State, accept the proposed undertaking concerned or a proposed undertaking which does not differ from it in any material respect.
Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking in lieu of a reference under section 154A in relation to the matter concerned.
The Secretary of State shall withhold his consent if he believes that it is or may be the case that the proposed undertaking will, if accepted, operate against the public interest.
For the purposes of subsection (2) a proposed undertaking will, if accepted, operate against the public interest only if any public interest consideration which is mentioned in the intervention notice concerned and has been finalised, or any public interest considerations which are so mentioned and have been finalised, outweigh the considerations which have led the CMA to propose accepting the undertaking.
In making his decision under subsection (2) the Secretary of State shall accept the CMA's view of what undertakings, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be most appropriate.
Where a public interest consideration which is mentioned in the intervention notice concerned is not finalised on the giving of the notice, the Secretary of State shall not make his decision as to whether to give his consent under this section before—
the end of the period of 24 weeks beginning with the giving of the intervention notice; or
if earlier, the date on which the public interest consideration concerned has been finalised.
Subject to subsections (2) to (5), the Secretary of State shall not withhold his consent under this section.
Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.
Where the Secretary of State revokes an intervention notice which has been given under section 139(1), at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part).
Where the CMA is proceeding by virtue of subsection (2), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.
Where the CMA terminates its investigation under section 145(1), the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part).
Where the CMA is proceeding by virtue of subsection (4), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.
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Saturday, Sunday, Good Friday and Christmas Day; and
any day which is a bank holiday in England and Wales.
In this section, “working day” means any day other than—
a Saturday or Sunday, or
a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.
The CMA shall, in considering whether to make a reference under section 131, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
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The CMA shall bring to the attention of the Secretary of State any representations about exercising his power under section 153(3) which have been made to the CMA.
The interests of national security are specified in this section.
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The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.
An order under this section may apply in relation to cases under consideration by the CMA, by the Secretary of State or by the appropriate Minister (other than the Secretary of State acting alone) ... before the making of the order as well as cases under consideration on or after the making of the order.
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Subsection (2) applies if the OFT considers that it has the power to make a reference under section 131 and otherwise intends to make such a reference.
The OFT may, instead of making such a reference and for the purpose of remedying, mitigating or preventing— accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate.
any adverse effect on competition concerned; or
any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
In proceeding under subsection (2), the OFT shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
In proceeding under subsection (2), the OFT may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market concerned.
The OFT shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
no detrimental effect on customers has resulted from the adverse effect on competition; and
the adverse effect on competition is not being remedied, mitigated or prevented.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the OFT.
The OFT shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
This section is subject to sections 150 and 155.
This section applies where—
no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference,
a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or
a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.
The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)—
any adverse effect on competition concerned, or
any detrimental effect on customers so far as—
it has resulted from the adverse effect on competition, or
it may be expected to result from the adverse effect on competition.
An undertaking under this section is known as—
an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b);
an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).
The CMA may accept—
undertakings in lieu of a reference either—
instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or
in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);
undertakings in lieu of a report either—
instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or
in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).
In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
the adverse effect on competition concerned, and
any detrimental effects on customers so far as resulting from the adverse effect on competition.
In accepting an undertaking under this section, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking).
An undertaking under this section—
comes into force when accepted;
may be varied or superseded by another undertaking;
may be released by the CMA.
The CMA must, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
This section is subject to sections 150 and 155.
Before accepting an undertaking under section 154A (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the CMA shall—
publish notice of the proposed undertaking; and
consider any representations made in accordance with the notice and not withdrawn.
A notice under subsection (1) shall state—
that the CMA proposes to accept the undertaking;
the purpose and effect of the undertaking;
the situation that the undertaking is seeking to deal with;
any other facts which the CMA considers justify the acceptance of the undertaking;
a means of gaining access to an accurate version of the proposed undertaking at all reasonable times; and
the period (not less than 15 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed undertaking.
The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.
the terms of the reference under section 131 which the OFT considers that it has power to make and which it otherwise intends to make; and
the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the OFT has identified.
The CMA shall not accept the undertaking with modifications unless it—
publishes notice of the proposed modifications; and
considers any representations made in accordance with the notice and not withdrawn.
A notice under subsection (4) shall state—
the proposed modifications;
the reasons for them; and
the period (not less than 7 days starting with the date of the publication of the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.
If, after publishing notice under subsection (1) or (4), the CMA decides— it shall publish notice of that decision.
not to accept the undertaking concerned; and
not to proceed by virtue of subsection (8) or (9);
As soon as practicable after accepting an undertaking to which this section applies, the CMA shall—
serve a copy of the undertaking on any person by whom it is given; and
publish the undertaking.
The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—
has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and
considers that the modifications which are now being proposed are not material in any respect.
The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—
has already published notice under subsections (1) and (4) in relation to the matter concerned; and
considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).
Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section 154A (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.
No ordinary reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—
the CMA has , instead of making an ordinary reference, accepted an undertaking or group of undertakings in lieu of a reference under section 154A within the previous 12 months; ...
the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.
any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and
No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—
the CMA has accepted an undertaking or group of undertakings under section 154A within the previous 12 months;
any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and
the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.
Subsections (A1) and (1) do not prevent the making of a market investigation reference if—
the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or
the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the CMA which was false or misleading in a material respect.
The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section 154A and—
the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or
the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.
Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate.
Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report.
Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing—
the CMA’s decision to accept the undertaking,
the reasons for the decision, and
such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision.
For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).
Subsection (2) applies where—
a market investigation reference has been made;
a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and
the market investigation reference concerned is not finally determined.
The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.
An undertaking under this section—
shall come into force when accepted;
may be varied or superseded by another undertaking; and
may be released by the relevant authority.
Subsection (2B) applies where—
subsection (1)(a) to (c) applies; and
the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
The relevant authority may, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.
The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.
A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.
In this section and section 158—
beginning with the day on which the relevant authority begins the implementation trial, and
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The relevant authority may dispense with any or all of the requirements of this Schedule if the relevant authority considers that the relevant authority has special reasons for doing so.
This Schedule applies to an individual who immediately before commencement—
has been adjudged bankrupt, and
has not been discharged from the bankruptcy.
This paragraph applies to a pre-commencement bankrupt who was an undischarged bankrupt at some time during the period of 15 years ending with the day before the date on which the pre-commencement bankruptcy commenced. The pre-commencement bankrupt shall not be discharged from bankruptcy in accordance with paragraph 4 above. An order made before commencement under section 280(2)(b) or (c) of the Insolvency Act 1986 (c. 45) (discharge by order of the court) shall continue to have effect after commencement (including any provision made by the court by virtue of section 280(3)). A pre-commencement bankrupt to whom this paragraph applies (and in respect of whom no order is in force under section 280(2)(b) or (c) on commencement) is discharged— Section 279(3) to (5) of the Insolvency Act 1986 as substituted by section 256 of this Act shall have effect after commencement in relation to the period mentioned in sub-paragraph (4)(a) above. A bankruptcy annulled under section 282 shall be ignored for the purpose of sub-paragraph (1).
A provision of this Schedule which provides for an individual to be discharged from bankruptcy is subject to—
any bankruptcy restrictions order (or interim order) which may be made in relation to that individual, and
any bankruptcy restrictions undertaking entered into by that individual.
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In this paragraph— Anything which— shall be treated as if done by or in relation to the OFT. Anything (including legal proceedings) which— may be continued by or in relation to the OFT. Nothing in section 2 or this paragraph affects the validity of anything done by or in relation to the Director before commencement.
Subject to paragraphs 15 to 18, the old law shall continue to apply where— Subject to sub-paragraphs (3), (4) and (5) and paragraphs 15 to 18, the old law shall continue to apply in relation to any relevant arrangements which were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day and (if events so require) the actual results of those arrangements where, before the appointed day— Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, on or after the appointed day, a merger notice is rejected under section 75B(7) of the 1973 Act or withdrawn in relation to the arrangements. Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if— Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if— Subject to sub-paragraph (8), the new law shall apply in relation to relevant arrangements and (if events so require) the actual results of those arrangements if— Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(c) (excluding the words from “and” to the end), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, in relation to the arrangements, sub-paragraph (2)(b)(i), (ii) and (iii) do not apply. Subject to paragraphs 15 to 18, the old law shall continue to apply in relation to concentrations with a Community dimension (within the meaning of the European Merger Regulations) notified before the appointed day to the European Commission under article 4 of those Regulations. In this paragraph references to relevant arrangements which are in progress or in contemplation on the appointed day include references to the actual results of those arrangements if the arrangements were in progress or in contemplation immediately before the appointed day and have, at the beginning of the appointed day, resulted in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act). In this paragraph—
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.
In this Schedule—
An order may require a person supplying goods or services to publish or otherwise notify — 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. In sub-paragraph (1) “accounting information”, in relation to a supply of goods or services, means information as to—
An order made by virtue of paragraph ... 17 may provide for the manner in which information is to be published or otherwise notified.
An order may—
require any person to supply information to the relevant authority;
where the CMA is not the relevant authority, require any person to supply information to the CMA;
provide for the publication, by the person who has received information by virtue of paragraph (a) or (b), of that information.
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
Subsection (2) applies where—
a market investigation reference has been made;
a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and
the market investigation reference concerned is not finally determined.
The relevant authority may by order, for the purpose of preventing pre-emptive action—
prohibit or restrict the doing of things which the relevant authority considers would constitute pre-emptive action;
impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
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;
do anything which may be done by virtue of paragraph 19 of Schedule 8.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
Subsection (2B) applies where—
subsection (1)(a) to (c) applies; and
the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
The relevant authority may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—
do anything mentioned in subsection (2)(b) to (d);
impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.
A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.
The CMA may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.
An undertaking under this section shall come into force when accepted.
An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.
An undertaking under subsection (1) may be released by the CMA and an undertaking under subsection (2) may be released by the Secretary of State.
The CMA or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.
Subsection (2) applies where the relevant authority considers that—
an undertaking accepted by the relevant authority under section 159 has not been, is not being or will not be fulfilled; or
in relation to an undertaking accepted by the relevant authority under that section, information which was false or misleading in a material respect was given to a relevant person by the person giving the undertaking before the relevant authority decided to accept the undertaking.
The relevant authority may, for any of the purposes mentioned in section 138(2), 147(2) or (as the case may be) 147A(2), make an order under this section.
In subsection (1), a “relevant person” means—
in a case where the relevant authority is the CMA, the CMA;
in a case where the relevant authority is the Secretary of State, the Secretary of State or the CMA.
Subsections (3) to (6) of section 138 or 147 or (as the case may be) subsections (3) and (4) of section 147A shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.
An order under this section may contain—
anything permitted by Schedule 8; and
such supplementary, consequential or incidental provision as the relevant authority considers appropriate.
An order under this section—
shall come into force at such time as is determined by or under the order;
may contain provision which is different from the provision contained in the undertaking concerned; and
may be varied or revoked by another order.
The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.
In this section “the relevant authority” means—
in the case of an undertaking accepted under section 159 by the CMA, the CMA; and
in the case of an undertaking accepted under that section by the Secretary of State, the Secretary of State.
The CMA may, in accordance with section 138, make an order under this section.
The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, make an order under this section.
An order under this section may contain—
anything permitted by Schedule 8; and
such supplementary, consequential or incidental provision as the person making it considers appropriate.
An order under this section—
shall come into force at such time as is determined by or under the order; and
may be varied or revoked by another order.
The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises , in accordance with section 162(3) or section 162A(8), that such a variation or revocation is appropriate ....
The CMA shall keep under review the carrying out of any enforcement undertaking or any enforcement order.
The CMA shall, in particular, from time to time consider—
whether an enforcement undertaking or enforcement order has been or is being complied with;
whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
one or more of the parties to it can be released from it; or
it needs to be varied or to be superseded by a new enforcement undertaking; and
whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—
any possible variation or release by ...the Secretary of State of an enforcement undertaking accepted by ... him;
any possible new enforcement undertaking to be accepted by ... the Secretary of State so as to supersede another enforcement undertaking given to ... the Secretary of State;
any possible variation or revocation by ... the Secretary of State of an enforcement order made by ... the Secretary of State;
any possible enforcement undertaking to be accepted by ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ... the Secretary of State instead of an enforcement undertaking; or
the enforcement by virtue of section 167(6) and (7) of any enforcement undertaking or enforcement order.
The CMA shall take such action as it considers appropriate in relation to—
any possible variation or release by it of an undertaking accepted by it under section 154A;
any possible new undertaking to be accepted by it under section 154A so as to supersede another undertaking given to it under that section;
the enforcement by it by virtue of section 167(6) of any enforcement undertaking or enforcement order.
any possible variation or release by it of an enforcement undertaking accepted by it;
any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
any possible variation or revocation by it of an enforcement order made by it;
any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking; or
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give any report prepared by it under subsection (6) to the Commission;
give a copy of the report to the Secretary of State; and
publish the report.
In this Part—
Subsections (2) and (3) apply where ... the Secretary of State ... is considering whether to accept undertakings under section 157 or 159.
The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under section 157 or (as the case may be) 159.
The Secretary of State may require the CMA to report to the Secretary of State on the outcome of the CMA's consultations within such period as the Secretary of State may require.
A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under section 157 or (as the case may be) 159.
The powers conferred on the Secretary of State by subsections (1) to (4) are without prejudice to the power of the Secretary of State to consult the persons concerned ....
If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the CMA shall give such advice as it considers appropriate.
The CMA must keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
The CMA must, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (1).
The CMA must—
give a copy of any report prepared by it under subsection (2) to the Secretary of State, and
publish the report.
Subsection (5) applies, in relation to an adverse effect on competition identified in a report mentioned in section 138(1), where—
the report was published within the previous 10 years,
the CMA last took action in accordance with section 138(2) or subsection (5) of this section no less than two years ago, and
the CMA concludes, as a result of a review under subsection (1), that the action mentioned in paragraph (b) has been ineffective for the purposes mentioned in that section.
The CMA must take such action as it considers appropriate for the purposes mentioned in section 138(2) in relation to—
any possible variation or release by the CMA of an enforcement undertaking accepted by it;
any possible new enforcement undertaking to be accepted by the CMA so as to supersede another enforcement undertaking given to it;
any possible variation or revocation by the CMA of an enforcement order made by it;
any possible enforcement undertaking to be accepted by the CMA instead of an enforcement order made by it, or any possible enforcement order to be made by the CMA instead of an enforcement undertaking accepted by it.
Where the CMA decides to take action under subsection (5), the CMA must take the action within the period of six months beginning with the date on which that decision is published under section 172(2)(h).
Subsection (8) applies, in relation to an adverse effect on competition or an effect adverse to the public interest identified in a report mentioned in section 146(1) or 146A(1) (as the case may be), where—
the report was laid before each House of Parliament in accordance with section 172(10) within the previous 10 years,
the Secretary of State last took action in accordance with section 142(2) or 147A(2) (as the case may be) no less than two years ago, and
the CMA concludes, as a result of a review under subsection (1), that action taken in accordance with that section has been ineffective for the purposes mentioned in that section.
The CMA must give the Secretary of State such advice as it considers appropriate for the purposes mentioned in section 147(2) or 147A(2) (as the case may be) in relation to—
any possible variation or release by the Secretary of State of an enforcement undertaking accepted by the Secretary of State;
any possible new enforcement undertaking to be accepted by the Secretary of State under that section so as to supersede another enforcement undertaking given to the Secretary of State;
any possible variation or revocation by the Secretary of State of an enforcement order made by the Secretary of State;
any possible enforcement undertaking to be accepted by the Secretary of State instead of an enforcement order, or any possible enforcement order to be made by the Secretary of State instead of an enforcement undertaking accepted under that section.
This section applies in relation to implementation trial measures imposed in accordance with section 161C.
The CMA must keep under review the effectiveness of the implementation trial measures.
The CMA must, in particular, from time to time consider—
whether an implementation trial measure has been or is being complied with;
whether an undertaking accepted under section 161C is no longer appropriate and—
one or more of the parties to it can be released from it; or
it needs to be varied or to be superseded by a new undertaking under that section; and
whether an order made under section 161C is no longer appropriate and needs to be varied or revoked.
The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to—
any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C;
any possible new undertaking to be accepted by the Secretary of State under that section so as to supersede another undertaking given to the Secretary of State under that section;
any possible variation or revocation by the Secretary of State of an order made by the Secretary of State under that section;
any possible undertaking to be accepted by the Secretary of State under that section instead of an order made under that section, or any possible order to be made by the Secretary of State under that section instead of an undertaking accepted under that section.
The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to—
any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C;
any possible new undertaking to be accepted by the relevant authority under that section so as to supersede another undertaking given to it under that section;
any possible variation or revocation by the relevant authority of an order made by it under that section;
any possible undertaking to be accepted by the relevant authority under that section instead of an order made under that section, or any possible order to be made by the relevant authority under that section instead of an undertaking accepted under that section.
But the relevant authority may not do anything under this section that would result in—
the implementation trial period being extended;
an order or undertaking made under section 161C being out of compliance with any provision of that section.
In this section “relevant authority” has the meaning given by section 161B(2).
Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under this section as those subsections apply to action taken by the CMA under section 138(2).
Subsections (3)(b), (5) and (6) of section 147 apply to action taken by the Secretary of State under this section in respect of a restricted PI reference as those subsections apply to action taken by the Secretary of State under section 147(2).
Subsection (3) of section 147A applies to action taken by the Secretary of State under this section in respect of a full PI reference as that subsection applies to action taken by the Secretary of State under section 147A(2).
The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
The following enactments in Part 3 shall apply in relation to enforcement orders under this Part as they apply in relation to enforcement orders under that Part—
section 86(1) to (5) (enforcement orders: general provisions); and
section 87 (power of directions conferred by enforcement order).
An enforcement order under section 160 or 161 or any explanatory material accompanying the order shall state—
the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;
the date on which the order comes into force;
the possible consequences of not complying with the order; and
the section of this Part under which a review can be sought in relation to the order.
Schedule 10 (procedural requirements for certain undertakings and orders), other than paragraph 9 of that Schedule, shall apply in relation to undertakings under section 159 or 161C and orders under section 160 , 161 or 161C as it applies in relation to undertakings under section 82 and orders under section 83 or 84.
The CMA shall compile and maintain a register for the purposes of this Part.
The register shall be kept in such form as the CMA considers appropriate.
The CMA shall ensure that the following matters are entered in the register—
the provisions of any enforcement undertaking accepted by virtue of this Part ...;
the provisions of any enforcement order made by virtue of this Part ...; and
the details of any variation, release or revocation of such an undertaking or order.
The duty in subsection (3) does not extend to anything of which the CMA is unaware.
The ... Secretary of State and any relevant sectoral regulator shall inform the CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by them or enforcement orders made by them.
The CMA shall ensure that the contents of the register are available to the public—
during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and
subject to such reasonable fees (if any) as the CMA may determine.
If requested by any person to do so and subject to such reasonable fees (if any) as the CMA may determine, the CMA shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.
This section applies to
any enforcement undertaking or enforcement order;
any undertaking accepted, or order made, under section 161C.
Any person to whom such an undertaking or order relates shall have a duty to comply with it.
The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.
Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
In any proceedings brought under subsection (4) against a person to whom an undertaking or order to which this section applies relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.
Compliance with an undertaking or order to which this section applies shall also be enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.
Compliance with an undertaking accepted by the Secretary of State under section 157 or 159, or an order made by the Secretary of State under section 158, 160 or 161, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
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in the case of an undertaking accepted by the Commission or an order made by the Commission, the Commission; and
in the case of an undertaking accepted by the Secretary of State or an order made by the Secretary of State, the Secretary of State.
Subsections (6) and (7) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an undertaking or order to which this section applies.
In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 167C at the time of the failure to comply with the undertaking or (as the case may be) order.
The relevant authority may, in accordance with section 167B, impose a penalty on a person— where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.
from whom the authority has accepted an enforcement undertaking, or
to whom an enforcement order is addressed,
In this section and in section 167B, “the relevant authority” means—
in the case of a restricted PI reference or a full PI reference, the Secretary of State;
in any other case, the CMA.
In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 167C at the time of the failure to comply.
A penalty under section 167A(1) is to be such amount as the relevant authority considers appropriate.
The amount must be—
a fixed amount,
an amount calculated by reference to a daily rate, or
a combination of a fixed amount and an amount calculated by reference to a daily rate.
A penalty imposed under section 167A(1) on a person who does not own or control an enterprise must not—
in the case of a fixed amount, exceed £30,000;
in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
A penalty imposed under section 167A(1) on any other person must not—
in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
In imposing a penalty by reference to a daily rate—
no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) (as applied by subsection (6)), and
unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person complies with
the enforcement undertaking or enforcement order , or
the undertaking accepted, or order made, under section 161C.
Sections 112 to 115 apply in relation to a penalty imposed under section 167A(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—
any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section (see section 167A(2));
section 114(5A) is to be read as if the words “or OFCOM” were omitted;
section 114(12) is to be read as if, for paragraph (b), there were substituted—
The Secretary of State may by regulations amend subsection (3)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
Before making regulations under subsection (7) the Secretary of State must consult—
the CMA, and
such other persons as the Secretary of State considers appropriate.
The Secretary of State may by regulations make provision for determining, for the purposes of this section—
when an enterprise is to be treated as being controlled by a person;
the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
Regulations under subsection (9)(b) may, in particular, make provision as to—
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
Regulations under subsection (9) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).
The CMA must prepare and publish a statement of policy in relation to the exercise of functions under sections 167 and 167A.
The CMA must, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 167A.
The CMA may revise its statement of policy and, where it does so, it must publish the revised statement.
The CMA must consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.
The relevant authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
In subsection (1), “the relevant authority” means—
in the case of a restricted PI reference or a full PI reference, the Secretary of State;
in any other case, the CMA.
This section and sections 161C to 161E make provision in relation to the acceptance of undertakings and making of orders by a relevant authority on a trial basis for the purpose of assessing the effectiveness of qualifying remedial action (and the acceptance of undertakings and making of orders on that basis is referred to in this Part as an “implementation trial”).
In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State.
In this Part—
The last day on which an implementation trial measure is to have effect is the earlier of—
the day specified under section 161D(5)(b)(ii), and
the day on which action is taken under section 138(2), 147(2) or 147A(2) (as the case may be) in relation to the relevant adverse effect which the relevant authority considers concerns the same qualifying matter.
But where— the last day on which the implementation trial measure is to have effect is the last day of that period as so extended.
an implementation trial measure is imposed in accordance with this section, and
the CMA extends, under section 138A(3), the period within which its duty under section 138(2) is required to be discharged in accordance with section 138A(A3) in relation to the measure,
The CMA may, in relation to a market investigation reference, begin an implementation trial where—
subsection (2) of section 138 applies (see subsection (1) of that section), and
the CMA has not taken, but is minded to take, qualifying remedial action.
The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where—
subsection (2) of section 147, or subsection (2) of 147A (as the case may be), applies (see subsection (1) of the section in question), and
the Secretary of State has not taken, but is minded to take, qualifying remedial action.
Subsections (1) and (2) are subject to the duty to publish notices in section 161D.
The relevant authority begins an implementation trial by— for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action.
accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or
making an order under this section,
Where the relevant authority begins an implementation trial, the relevant authority may also— in the circumstances mentioned in subsection (6).
accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or
make an order under this section,
The circumstances are that the relevant authority considers that accepting the undertakings or making the order would be likely to contribute to, or otherwise be of use for purposes of, remedying, mitigating or preventing, during the implementation trial period—
an adverse effect on competition identified in the report concerned or (as the case may be) an effect adverse to the public interest which has resulted from, or may be expected to result from, the features or combinations of features mentioned;
any detrimental effect on customers so far as it has resulted from, or may be expected to result from, any such adverse effect on competition.
Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish—
a provisional implementation trial notice, and
a final implementation trial notice (but see subsection (4)).
A provisional implementation trial notice must—
specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial;
specify the relevant adverse effect with which each measure is seeking to deal;
specify any other facts which the relevant authority considers justify the imposition of each measure;
specify, in relation to each measure—
how the relevant authority intends to assess the likely effect of the measure, and
the last day on which the relevant authority intends for the measure to have effect;
invite the making of representations by the persons on which the relevant authority is minded to impose one or more implementation trial measure (“implementation trial participants”) about the matters set out in the notice;
specify the means by which, and the time by which, such representations must be made.
The time specified under subsection (2)(f) by which representations must be made must be at least 15 days after the date on which the provisional implementation trial notice is published.
A relevant authority may publish a final implementation trial notice only where—
the relevant authority has published a provisional implementation trial notice under subsection (1),
the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and
after considering such representations (if any), it appears to the relevant authority that it is appropriate to begin an implementation trial under section 161C(4).
A final implementation trial notice must specify—
the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial,
in relation to each such measure—
how the relevant authority intends to assess the likely effect of the measure, and
the last day on which the measure is to have effect.
The relevant authority may not accept an undertaking from a person under section 161C unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
The CMA may not begin an implementation trial under section 161C(4)—
in respect of qualifying remedial action that would be taken in accordance with subsection (2) of section 138, after the end of the period within which the CMA would otherwise have been required to discharge its duty under that subsection;
in respect of qualifying remedial action that would be taken in accordance with section 162A(5), after the end of the period mentioned in section 162A(6).
Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under section 161C as they apply to action taken by the CMA under section 138(2).
Subsections (3)(b), (4), (5) and (6) of section 147 apply to action taken by the Secretary of State under section 161C in relation to a restricted PI reference as they apply to action taken by the Secretary of State under section 147(2).
Subsections (3) and (4)(b) of section 147A apply to action taken by the Secretary of State under section 161C in relation to a full PI reference as they apply to action taken by the Secretary of State under section 147A(2).
Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1).
Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).
Subsection (2) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether relevant action would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.
The CMA or (as the case may be) the Secretary of State shall, in deciding whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned.
In this section “relevant action” means—
modifying the conditions of a licence granted under section 7 of the Telecommunications Act 1984 (c. 12);
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modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44);
modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);
modifying networking arrangements (within the meaning given by section 290 of the Communications Act 2003);
modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);
modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));
modifying the conditions of a licence granted under Chapter 1A of Part 2 of the Act of 1991 or modifying the terms and conditions of an agreement under section 66D or 117E of that Act;
modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);
modifying an access agreement (within the meaning given by section 83(1) of the Act of 1993) or a franchise agreement (within the meaning given by section 23(3) of that Act);
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modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;
modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));
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modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38);
modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006;
modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;
modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012;
modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012; or
modifying the conditions of a licence granted under section 7 of the Energy Act 2023.
In this section “relevant statutory functions” means—
in relation to any licence granted under section 7 of the Telecommunications Act 1984, the duties and obligations of the Director General of Telecommunications imposed on him by or in pursuance of any enactment or other provision mentioned in section 7(5)(a) of that Act;
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in relation to any licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44), the objectives and duties of the Gas and Electricity Markets Authority under section 4AA and 4AB(2) of that Act;
in relation to any licence granted under section 6 of the Electricity Act 1989 (c. 29), the objectives and duties of the Gas and Electricity Markets Authority under section 3A and 3B(2) of that Act;
in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;
in relation to a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56), the duties of the Water Services Regulation Authority under section 2 of that Act;
in relation to any licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 12 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));
in relation to a licence granted under Chapter 1A of Part 2 of the Act of 1991 or an agreement under section 66D or 117E of that Act, the duties of the Authority under section 2 of that Act or under that section and section 66D or 117E of that Act (as the case may be);
in relation to any licence granted under section 8 of the Railways Act 1993 (c. 43) where none of the conditions of the licence relate to consumer protection, the duties of the Office of Rail and Road under section 4 of that Act;
in relation to any licence granted under section 8 of the Act of 1993 where one or more than one condition of the licence relates to consumer protection, the duties of the Office of Rail Regulation under section 4 of that Act and the duties of the Strategic Rail Authority under section 207 of the Transport Act 2000 (c. 38);
in relation to any access agreement (within the meaning given by section 83(1) of the Act of 1993), the duties of the Office of Rail and Road under section 4 of the Act of 1993;
in relation to a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 where none of the conditions of the SNRP relate to consumer protection, the duties of the Department for Regional Development under regulation 36 of those Regulations;
in relation to any franchise agreement (within the meaning given by section 23(3) of the Act of 1993), the duties of the Secretary of State, the Scottish Ministers and the National Assembly for Wales under section 4 of the Act of 1993;
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in relation to any licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 14 of the Energy (Northern Ireland) Order 2003;
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in relation to any licence granted under section 5 of the Transport Act 2000, the duties of the Civil Aviation Authority under section 87 of that Act;
in relation to a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006, the duties of the Northern Ireland Authority for Utility Regulation under Article 6 of that Order;
in relation to regulatory conditions imposed under Part 3 of the Postal Services Act 2011, the duty of the Office of Communications under section 29 of that Act;
in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of NHS England under sections 62 and 66 of that Act;
in relation to a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012, the duties of the Civil Aviation Authority under section 1 of that Act, and
in relation to a licence granted under section 7 of the Energy Act 2023, the objectives and duties of the Gas and Electricity Markets Authority under section 1 of that Act.
In this section “sectoral regulator” means—
the Civil Aviation Authority;
the Northern Ireland Authority for Utility Regulation.
the Director General of Gas for Northern Ireland;
the Director General of Telecommunications;
the Water Services Regulation Authority;
the Gas and Electricity Markets Authority;
the Office of Communications;
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the Office of Rail and Road; . . .
NHS England;
the Secretary of State;
the Scottish Ministers; or
the National Assembly for Wales or
the Department for Regional Development.
Subsection (7) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44) , section 6 of the Electricity Act 1989 (c. 29) or section 7 of the Energy Act 2023 would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.
The CMA or (as the case may be) the Secretary of State may, in deciding whether modifying the conditions of such a licence would be reasonable and practicable, have regard to those matters to which the Gas and Electricity Markets Authority may have regard by virtue of section 4AA(4) of the Act of 1986 or (as the case may be) section 3A(4) of the Act of 1989.
The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).
Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.
Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to have a substantial impact on the interests of any person.
The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision.
In consulting the person concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
any restrictions imposed by any timetable for making the decision; and
any need to keep what is proposed, or the reasons for it, confidential.
The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
In this section—
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such information in its possession as the Commission may reasonably require to enable the Commission to carry out its functions under this Part; and
any other assistance which the Commission may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the OFT to give.
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The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—
such information in its possession as the Secretary of State or (as the case may be) the appropriate Minister concerned may by direction reasonably require to enable him to carry out his functions under this Part; and
any other assistance which the Secretary of State or (as the case may be) the appropriate Minister concerned may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the CMA or (as the case may be) the Commission to give.
The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone any information in its possession which has not been requested by the Secretary of State or (as the case may be) the appropriate Minister concerned but which, in the opinion of the CMA, would be appropriate to give to the Secretary of State or (as the case may be) the appropriate Minister concerned for the purpose of assisting him in carrying out his functions under this Part.
The Secretary of State or (as the case may be) the appropriate Minister concerned shall have regard to any information given to him under subsection (3) or (4).
Any direction given under subsection (3)—
shall be in writing; and
may be varied or revoked by a subsequent direction.
... The CMA shall prepare and publish general advice and information about —
the making and consideration by it of market investigation references, and
the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.
The CMA may at any time publish revised, or new, advice or information.
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Advice and information published under this section shall be prepared with a view to—
explaining relevant provisions of this Part to persons who are likely to be affected by them; and
indicating how the CMA expects such provisions to operate.
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Advice (or information) published by virtue of subsection (1) ... may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a function conferred by this Part.
Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.
In preparing any advice or information under this section, the CMA shall consult such persons and such other persons as it considers appropriate.
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all the rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and
all the remedies and procedures from time to time provided for by or under the Community Treaties.
The CMA shall publish—
any reference made by it under section 131, other than a reference treated as so made by virtue of section 140A(5)(b);
any variation made by it under section 135 of a reference under section 131;
any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;
any decision of a kind mentioned in section 149(5)(b); and
such information as it considers appropriate about any decision made by it under section 152(1) to bring a case to the attention of the Secretary of State.
The CMA shall also publish—
any decision made by it under section 138(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published;
any decision made by it that there has been a material change of circumstances as mentioned in section 138(3) or there is another special reason as mentioned in that section;
any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;
any termination under section 145(1) of an investigation by it;
any decision made by it under section 138A(A1)(b) that it is not reasonably practicable for the CMA to discharge its duty under section 138(2) in accordance with section 138A(1);
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any enforcement undertaking accepted by it under section 157;
any enforcement order made by it under section 158; ...
any extension by it under section 144 of the period within which a report under section 142 is to be prepared and action is to be taken in relation to it;
any variation, release or revocation of such an undertaking or order; and
any decision by it to take action under section 162A(5).
The Secretary of State shall publish—
any reference made by him under section 132;
any variation made by him under section 135 of a reference under section 132;
any intervention notice given by him;
any decision made by him to revoke such a notice;
any decision made by him under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
any reference made by him under section 140A(5) or (6);
any enforcement undertaking accepted by him under section 157;
any variation made by him under section 140B of a reference under section 140A(6);
any variation or release of such an undertaking; and
any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).
The appropriate Minister (other than the Secretary of State acting alone) shall publish—
any reference made by him under section 132;
any variation made by him under section 135 of a reference under section 132; and
any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).
Where any person is under an obligation by virtue of subsection (1), (2), (3) or (4) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (6) and (7), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
Subsections (5) and (6) shall not apply in relation to any case falling within subsection (1)(d) ....
The Secretary of State shall publish his reasons for—
any decision made by him under section 146(2) or 146A(2); or
any decision to make an order under section 153(3) or vary or revoke such an order.
Subsection (6) shall not apply in relation to any case falling within subsection (1)(a) or (3)(da).
Such reasons may be published after— if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.
in the case of subsection (8)(a), the publication of the decision concerned; and
in the case of subsection (8)(b), the making of the order or of the variation or revocation;
Where the Secretary of State has decided under section 147(2) or 147A(2) to accept an undertaking under section 159 or to make an order under section 161, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the CMA's report under section 142, before each House of Parliament.
Where the Secretary of State has decided, in accordance with the CMA’s advice under section 162(3) or 162A(8), to accept or release an undertaking under section 159, or to make or revoke an order under section 161, the Secretary of State must, after the acceptance or release of the undertaking or (as the case may be) the making or revocation of the order, lay details of the Secretary of State’s decision and the reasons for it, and the CMA’s advice, before each House of Parliament.
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the CMA, by the Secretary of State or, by the appropriate Minister (other than the Secretary of State acting alone) ... in the exercise of any of their functions under this Part.
For the purposes of this section, the permitted purposes are the following—
assisting the CMA in carrying out its functions under section 5 in relation to a matter in a case where it has published a market study notice;
assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 131 or 132 or possible reference under section 131;
assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 140A(6) or possible reference under section 140A(5) or (6).
The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.
The CMA may give notice to any person requiring him—
to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and
to give evidence to the CMA or a person nominated by the CMA for the purpose.
The CMA may give notice to any person requiring him—
to produce any documents which—
are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and
are in that person’s custody or under his control; and
to produce them at a time and place so specified and to a person so specified.
The CMA may give notice to any person who carries on any business requiring him—
to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and
to supply it at a time and place, and in a form and manner, so specified and to a person so specified.
A notice under this section shall—
The person to whom any document is produced in accordance with a notice under this section may, for a permitted purpose, copy the document so produced.
specify the permitted purpose for which the notice is given, including the function or functions in question; and
No person shall be required under this section—
to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or
to supply any information which he could not be compelled to supply in evidence in such proceedings.
include information about the possible consequences of not complying with the notice
No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.
The CMA or any person nominated by it for the purpose may, for a permitted purpose, take evidence on oath and for that purpose may administer oaths.
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.
In this section “the court” means—
in relation to England and Wales or Northern Ireland, the High Court; and
in relation to Scotland, the Court of Session.
In subsection (1), “enforcement functions” means—
in relation to the CMA—
functions conferred by virtue of section 164(2)(b) on the CMA by enforcement orders;
functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
functions of the CMA under or by virtue of section 160 or 162 in relation to enforcement undertakings or enforcement orders;
in relation to the Secretary of State—
functions conferred by virtue of section 164(2)(b) on the Secretary of State by enforcement orders;
functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
functions of the Secretary of State under or by virtue of section 160 in relation to enforcement undertakings or enforcement orders.
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A person commits an offence if he, intentionally and without reasonable excuse, fails to comply with any requirement of a notice under section 174.
A person commits an offence if he intentionally and without reasonable excuse alters, suppresses or destroys any document which he has been required to produce by a notice under section 174.
A person who commits an offence under subsection (1) or (2) shall be liable—
on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
A person commits an offence if he intentionally obstructs or delays—
the OFT in the exercise of its powers under section 174; or
any person in the exercise of his powers under subsection (7) of that section.
A person who commits an offence under subsection (4) shall be liable—
on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to a fine.
This section applies to the exercise of the CMA’s power to give a person a notice under section 174(4) or (5).
The power is exercisable so as to—
give the notice to a person who is outside the United Kingdom (subject to subsection (3));
require the production of documents, or the supply of information, held outside the United Kingdom.
The CMA’s power to give a notice under section 174(4) or (5) to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only if the person—
is a United Kingdom national;
is an individual who is habitually resident in the United Kingdom;
is a body incorporated under the law of any part of the United Kingdom;
carries on business in the United Kingdom.
In subsection (3)(a) “United Kingdom national” has the same meaning as in Part 3 (see section 129(1)).
Nothing in this section is to be taken to limit any other power of the CMA to give a notice under section 174(4) or (5) to a person outside the United Kingdom.
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The following sections in Part 3 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under this Part as they apply for the purposes of references under that Part—
section 109 (attendance of witnesses and production of documents etc.);
section 110 (enforcement of powers under section 109: general);
section 111 (penalties);
section 112 (penalties: main procedural requirements);
section 113 (payments and interest by instalments);
section 114 (appeals in relation to penalties);
section 115 (recovery of penalties); and
section 116 (statement of policy).
Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—
subsection (2) were omitted; and
in subsection (9) the words from “or section” to “section 65(3))” were omitted.
Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—
for the words “section 50 or 65, given” there were substituted “section 142, published or given under section 143(1) or (3)”; and
for the words “(or given)”, in both places where they appear, there were substituted “(or published or given)”.
The CMA may impose a penalty on a person in accordance with section 174D where the CMA considers that—
the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174;
the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 174(7);
the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 174.
The relevant authority may impose a penalty on a person in accordance with section 174D where the authority considers that—
the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part;
the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part.
In this section, and in sections 174B to 174D, “the relevant authority” means—
the CMA;
the Secretary of State;
the appropriate Minister (so far as the Minister is not the Secretary of State acting alone).
But the relevant authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 as applied by section 180 if the person has, by reason of that act or omission, been found guilty of that offence.
The CMA may proceed (whether at the same time or at different times) under subsection (1)(a) and section 138A(3) in relation to the same failure.
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In deciding whether and, if so, how to proceed under subsection (1) or (1A) or section 138A(3), the CMA shall have regard to the statement of policy which was most recently published under section 174E at the time the act or omission occurred.
In this section—
the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and
the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (1A) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—
any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section;
section 114(5A) is to be read as if the words “or OFCOM” were omitted;
section 114(12) is to be read as if, for paragraph (b), there were substituted—
No penalty shall be imposed by virtue of section 17A(1)(a) or (b) if more than ten weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
In the following provisions of this section, “the section 174 power” means the power under section 174 to which the act or omission giving rise to the penalty in question relates.
Where the section 174 power is exercised for the purpose mentioned in section 174(1)(a), the relevant day is the day when the CMA finally concludes the carrying out of its section 5 functions.
Where the section 174 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked.
Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section.
Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a possible reference under section 131, the relevant day is the day when the CMA finally decides whether to make the reference.
Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a reference under section 131 or 132, the relevant day is the day when the reference is finally determined (see section 183).
Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a possible reference under section 140A(5) or (6), the relevant day is the day when the Secretary of State makes the reference.
Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a reference under section 140A(6), the relevant day is the day when the reference is finally determined (see section 183).
For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if—
the CMA publishes the market study report under section 131B(4) or (as the case may be) gives it to the Secretary of State under section 140A(3)(b); or
the period permitted for the preparation by the CMA of the market study report and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3)(b) expires and no such report has been so prepared or no such action has been taken.
For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is—
in a case falling within subsection (1)(a), the publication of the report or (as the case may be) the giving of it to the Secretary of State;
in a case falling within subsection (1)(b), the expiry of the period concerned.
For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if—
the CMA makes such a reference;
the CMA accepts an undertaking fully in lieu of a reference under section 154A;
the CMA publishes notice that it has otherwise decided not to make such a reference; or
the period permitted for the preparation by the CMA of a market study report in relation to the matter and for the report to be published under section 131B(4) has expired and no such report has been so prepared or published.
For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 is—
in a case falling within subsection (3)(a), the making of the reference;
in a case falling within subsection (3)(b), the acceptance of the undertaking concerned;
in a case falling within subsection (3)(c), the publication of the notice concerned;
in a case falling within subsection (3)(d), the expiry of the period concerned.
In subsection (4)(b) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (3)(b) and (4)(b).
A penalty imposed under section 174A(1) or (1A) shall be of such amount as the relevant authority considers appropriate.
In the case of a penalty imposed under section 174A(1)(a), the amount may be—
a fixed amount;
an amount calculated by reference to a daily rate; or
a combination of a fixed amount and an amount calculated by reference to a daily rate.
In the case of a penalty imposed under any of section 174A(1)(b), (c) or (1A), the amount shall be a fixed amount.
A penalty imposed under section 174A(1) or (1A) on a person who does not own or control an enterprise must not—
in the case of a fixed amount, exceed £30,000;
in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; and
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day ....
A penalty imposed under section 174A(1) or (1A) on any other person must not—
in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
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The Secretary of State may by regulations amend subsection (4)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
Before making regulations under subsection (6A), the Secretary of State shall consult—
the CMA; and
such other persons as the Secretary of State considers appropriate.
In imposing a penalty by reference to a daily rate—
no account is to be taken of any days before the service on the person concerned of provisional penalty notice under section 112(A1) (as applied by section 174A(10)); and
unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (9).
Those days are—
the day on which the requirement of the notice concerned under section 174 is satisfied;
the day which is the relevant day in the case in question for the purposes of section 174B.
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The Secretary of State may by regulations make provision for determining, for the purposes of this section—
when an enterprise is to be treated as being controlled by a person;
the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
Regulations under subsection (11)(b) may, in particular, make provision as to—
the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
Regulations under subsection (11) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (12)).
The CMA must prepare and publish a statement of policy in relation to—
the imposition of penalties under section 174A, and
the enforcement of notices under section 174.
The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 174A(1) or (1A).
The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.
Subsection (2) applies where
the Secretary of State is under a duty to publish a report of the CMA under section 142;
the Secretary of State is under a duty to lay the CMA’s advice under section 162(3) or 162A(8) before each House of Parliament.
The Secretary of State may exclude a matter from the report or advice if he considers that publication of the matter , or the inclusion of it in the advice laid before Parliament, would be inappropriate.
In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.
The CMA shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).
References in sections 136(4) to (6)... and 172(10) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.
Subsection (2) applies where, on a market investigation reference, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.
The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
Any person aggrieved by a decision of the CMA, the appropriate Minister, or the Secretary of State in connection with a reference or possible reference under this Part may apply to the Competition Appeal Tribunal for a review of that decision.
For this purpose “decision”—
does not include a decision to impose a penalty under section 167A(1) or 174A(1) or (1A); but
does not include a decision whether to carry out functions under section 5 in a case where the CMA is, or would have been, required to publish a market study notice (see section 130A(1));
includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.
Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.
In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.
The Competition Appeal Tribunal may—
dismiss the application or quash the whole or part of the decision to which it relates; and
where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.
An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.
An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
In this section—
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;
Ordinary members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions. A person may not be an ordinary member for more than 8 years (but this does not prevent a temporary re-appointment for the purpose of continuing to act as a member of the Tribunal as constituted for the purposes of any proceedings instituted before the end of his term of office). An ordinary member may resign his office by notice in writing to the Secretary of State. The Secretary of State may remove a person from office as an ordinary member on the ground of incapacity or misbehaviour.
Any staff, office accommodation or equipment required for the Tribunal shall be provided by the Competition Service.
A decision of the Tribunal in proceedings under section 47B of the 1998 Act which— may only be enforced by the person concerned with the permission of the High Court or Court of Session.
awards damages to a person in respect of a claim made or continued on behalf of that person (but is not the subject of an order under section 47C(3) or (4) of that Act); or
awards costs or expenses to a person in respect of proceedings in respect of a claim made under section 47A of that Act prior to its being continued on behalf of that person in the proceedings under section 47B,
An award of costs or expenses against a representative in proceedings under section 47B of the 1998 Act may not be enforced against any person on whose behalf a claim was made or continued in those proceedings.
In this Part of this Schedule any reference to damages includes a reference to any sum of money (other than costs or expenses) which may be awarded in respect of a claim made under section 47A of the 1998 Act or included in proceedings under section 47B of that Act.
Sections 116A (intentional destruction etc of documents), 117 (false or misleading information) and 125 (offences by bodies corporate) shall apply, with the modifications mentioned in subsection (2) below, for the purposes of this Part as they apply for the purposes of Part 3.
For the purposes of subsection (1), section 116A has effect as if—
references to section 109 were references to section 174;
the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).
For the purposes of subsection (1), section 117 has effect as if—
references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A;
the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).
Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.
Any power of the Secretary of State to make an order or regulations under this Part—
may be exercised so as to make different provision for different cases or different purposes;
includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
The power of the Secretary of State under section 131C(1), 136(9), 137(3), 138B(6), 144(2), 153(3) or 168(8) as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
An order made by the Secretary of State under section 131C(1), 137(3), 138B(6), 144(2), 158, 160 , 161, ... or under section 114(3)(b) or (4)(b) as applied by section 174A(10), is subject to the negative procedure.
An order made by the Secretary of State under section 136(9) or 168(8), or section 128(6) as applied by section 183(2), is subject to the affirmative procedure.
Regulations made under section 167B(9) or 174D(11) are subject to the negative procedure.
An order made by the Secretary of State under section 153(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.
In calculating the period of 28 days mentioned in subsection (6), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
Regulations made under paragraph (b) of the definition of “qualifying remedial action” in section 161B(3), or under section 167B(7) or 174D(6A), are subject to the affirmative procedure.
If an order made by the Secretary of State ceases to have effect by virtue of subsection (6), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.
Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.
If, apart from this subsection, an order made by the Secretary of State under section 153(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
References in this section to an order made under this Part include references to an order made under section ... 114(3)(b) or (4)(b) as applied by section 174A(10) and an order made under section 128(6) as applied by section 183(2).
Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.
Section 126 shall apply for the purposes of this Part as it applies for the purposes of Part 3.
In this Part, unless the context otherwise requires—
“relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.
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A decision of the Tribunal in any proceedings before it must— In preparing that document the Tribunal shall have regard to the need for excluding, so far as practicable— But the Tribunal shall also have regard to the extent to which any disclosure mentioned in sub-paragraph (2) is necessary for the purpose of explaining the reasons for the decision. The President shall make such arrangements for the publication of the decisions of the Tribunal as he considers appropriate.
An order may prohibit or restrict— An order may require that if— the persons concerned or any of them shall observe any prohibitions or restrictions imposed by or under the order. 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).
An order, as well as making provision in relation to all cases to which it may extend, may make provision in relation to— 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). An order may make provision for matters to be determined under the order. An order may—
In any instrument made before section 248(1) to (3) of this Act comes into force—
a reference to the making of an administration order shall be treated as including a reference to the appointment of an administrator under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (c. 45) (inserted by section 248(2) of this Act), and
a reference to making an application for an administration order by petition shall be treated as including a reference to making an administration application under that Schedule, appointing an administrator under paragraph 14 or 22 of that Schedule or giving notice under paragraph 15 or 26 of that Schedule.
The Insolvency Act 1986 shall be amended as follows.
In paragraphs 13 to 18 “the appointed day” means such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes. An order made by the Secretary of State under paragraph 15, 16 or 17—
Any provision made by any of paragraphs 1 to 21 shall not apply if, and to the extent that, an order under section 276(2) makes alternative provision or provides for it not to apply.
An order may provide for— 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. 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—
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. Any such order may, in particular, prohibit the doing of that thing (or the refraining from doing of it)—
In section 1 (proposal for company voluntary arrangement)—
in subsection (1) for “(other than one for which an administration order is in force, or which is being wound up)” substitute “ (other than one which is in administration or being wound up) ”, and
in subsection (3) for paragraph (a) substitute—.
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.
In section 5(3) (approval of company voluntary arrangement)—
for “an administration order is in force” substitute “ is in administration ”, and
for “discharge the administration order” substitute “ provide for the appointment of the administrator to cease to have effect ”.
In section 6(2)(c) (challenge of decision in relation to company voluntary arrangement) for “an administration order is in force” substitute “ is in administration ”.
In section 51 (power to appoint receiver: Scotland) after subsection (2) insert—
At the end of section 100 (creditors’ voluntary winding up of company: appointment of liquidator) add—
At the end of section 127 (winding-up: avoidance of property disposition) (which becomes subsection (1)) add—
After section 129(1) (commencement of winding up) insert—
In section 140 (appointment by court of liquidator following administration or voluntary arrangement) for subsection (1) substitute—
In section 212 (misfeasance of officers)—
in subsection (1)(b) omit “, administrator”,
in subsection (2) omit (in each place) “or administrator”, and
in subsection (4)—
omit “or administrator”, and
for “that person” substitute “ he ”.
Section 230(1) (administrator to be qualified insolvency practitioner) shall cease to have effect.
In section 231(1) and (2) (appointment to office of two or more persons) omit the word “administrator,”.
In section 232 (validity of office-holder’s act) omit the word “administrator,”.
In section 233 (utility supplies)—
for subsection (1)(a) substitute—, and
for subsection (4)(a) substitute—.
For section 234(1)(a) (getting in the company’s property) substitute—.
For section 235(4)(a) (co-operation with office-holder) substitute—.
For section 238(1)(a) (transactions at an undervalue: England and Wales) substitute—.
Section 240 (relevant time for sections 238 and 239) shall be amended as follows. For subsection (1)(c) substitute— The word “and” after subsection (1)(b) shall cease to have effect. For subsection (3)(a), (aa) and (b) substitute—
Section 241 (order under section 238 or 239) shall be amended as follows. For subsection (3A) substitute— For subsection (3B) substitute—
Section 242 (gratuitous alienations: Scotland) shall be amended as follows. In subsection (1)(b) for “an administration order is in force in relation to a company” substitute “ a company enters administration ”. In subsection (3)(a)(ii) for “the administration order is made” substitute “ the company enters administration ”.
Section 243 (unfair preferences: Scotland) shall be amended as follows. In subsection (1) for “the making of an administration order in relation to the company” substitute “ the company enters administration ”. In subsection (4)(b) for “in the case of an administration order” substitute “ where the company has entered administration ”.
In section 244(2) (extortionate credit transaction) for “the day on which the administration order was made or (as the case may be) the company went into liquidation” substitute “ the day on which the company entered administration or went into liquidation ”.
Section 245 (avoidance of floating charge) shall be amended as follows. The word “or” after subsection (3)(b) shall cease to have effect. For subsection (3)(c) substitute— For subsection (5)(a) and (b) substitute—
For section 246(1)(a) (unenforceability of lien on records) substitute—.
Section 247 (meaning of “insolvency” and “go into liquidation”) shall be amended as follows. In subsection (1) for “the making of an administration order or the appointment of an administrative receiver” substitute “ or the appointment of an administrator or administrative receiver ”. For subsection (3) substitute—
Section 387 (preferential debts: “the relevant date”) shall be amended as follows. In subsection (2) for paragraphs (a) and (b) substitute— In subsection (3)— After subsection (3) insert—
In section 422 (power to apply first Group of Parts to banks, &c.) for subsection (1) substitute—
In section 424(1)(a) (application for order in relation to transaction defrauding creditor) for “in relation to which an administration order is in force” substitute “ is in administration ”.
Schedule A1 (moratorium where directors propose voluntary arrangement) shall be amended as follows. In paragraph 4(1) (exclusion from eligibility for moratorium)— In paragraph 12(1) (effect of moratorium on creditor) for paragraph (d) substitute—. In paragraph 40 (challenge of directors’ actions during moratorium) for sub-paragraph (7) substitute—
Schedule 8 (scope of insolvency rules) shall be amended as follows. At the end of paragraph 2 (which becomes sub-paragraph (1)) add— In paragraph 10 (provision as to committees) for “section 26, 49, 68, 101, 141 or 142 of this Act” substitute “ section 49, 68, 101, 141 or 142 of, or paragraph 57 of Schedule B1 to, this Act ”. After paragraph 14 insert— After paragraph 14A (inserted by sub-paragraph (4) above) insert— In paragraph 29 (general provision) for “section 22, 47, 66, 131, 143(2) or 235 of this Act” substitute “ section 47, 66, 131, 143(2) or 235 of, or paragraph 47 of Schedule B1 to, this Act ”.
Schedule 10 (punishment of offences) shall be amended as follows. Sch. B1, para. 18(7). Making false statement in statutory declaration where administrator appointed by holder of floating charge. 1. On indictment. 2. Summary. 2 years, or a fine or both. 6 months, or the statutory maximum or both. ? Sch. B1, para. 20. Holder of floating charge failing to notify administrator or others of commencement of appointment. 1. On indictment. 2. Summary. 2 years, or a fine or both. 6 months, or the statutory maximum or both. One-tenth of the statutory maximum. Sch. B1, para. 27(4). Making false statement in statutory declaration where appointment of administrator proposed by company or directors. 1. On indictment. 2. Summary. 2 years, or a fine or both. 6 months, or the statutory maximum or both. ? Sch. B1, para. 29(7). Making false statement in statutory declaration where administrator appointed by company or directors. 1. On indictment. 2. Summary. 2 years, or a fine or both. 6 months, or the statutory maximum or both. ? Sch. B1, para. 32. Company or directors failing to notify administrator or others of commencement of appointment. 1. On indictment. 2. Summary. 2 years, or a fine or both. 6 months, or the statutory maximum or both. One-tenth of the statutory maximum. Sch. B1, para. 45(2). Administrator, company or officer failing to state in business document that administrator appointed. Summary. One-fifth of the statutory maximum. ? Sch. B1, para. 46(9). Administrator failing to give notice of his appointment. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 48(4). Failing to comply with provisions about statement of affairs where administrator appointed. 1. On indictment. 2. Summary. A fine. The statutory maximum. One-tenth of the statutory maximum. Sch. B1, para. 49(7). Administrator failing to send out statement of his proposals. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 51(5). Administrator failing to arrange initial creditors’ meeting. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 53(3). Administrator failing to report decision taken at initial creditors’ meeting. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 54(7). Administrator failing to report decision taken at creditors’ meeting summoned to consider revised proposal. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 56(2). Administrator failing to summon creditors’ meeting. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 71(6). Administrator failing to file court order enabling disposal of charged property. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 72(5). Administrator failing to file court order enabling disposal of hire-purchase property. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 77(3). Administrator failing to notify Registrar of Companies of automatic end of administration. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 78(6). Administrator failing to give notice of extension by consent of term of office. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 80(6). Administrator failing to give notice of termination of administration where objective achieved. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 84(9). Administrator failing to comply with provisions where company moves to dissolution. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 86(3). Administrator failing to notify Registrar of Companies where court terminates administration. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Sch. B1, para. 89(3). Administrator failing to give notice on ceasing to be qualified. Summary. One-fifth of the statutory maximum. One-fiftieth of the statutory maximum. Omit the entries for the following provisions—
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation; and
“qualifying remedial action” means remedial action in respect of—
An appointed member shall hold and vacate office in accordance with the terms of his appointment (and is eligible for re-appointment).
The Service may regulate its own procedure (including quorum). The validity of anything done by the Service is not affected by a vacancy among its members or by a defect in the appointment of a member.
The application of the seal of the Service shall be authenticated by the signature of— Sub-paragraph (1) does not apply in relation to any document which is, or is to be, signed in accordance with the law of Scotland.
A document purporting to be duly executed under the seal of the Service, or signed on its behalf, shall be received in evidence and, unless the contrary is proved, be taken to be so executed or signed.
Sections 127(1)(b) and (4) to (6) and 128 shall apply for the purposes of this Part as they apply for the purposes of Part 3.
For the purposes of this Part a market investigation reference is finally determined if—
where the reference is made under section 131 or 132—
the period permitted by section 137 for preparing and publishing a report under section 136 has expired and no such report has been prepared and published;
such a report has been prepared and published within the period permitted by section 137 and contains the decision that there is no adverse effect on competition;
the CMA has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161;...
the CMA has accepted an undertaking under section 159 or made an order under section 161;
the CMA has accepted an undertaking fully in lieu of a report under section 154A; or
where the reference is a restricted PI reference or a full PI reference—
the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired while the intervention notice is still in force and no such report has been so prepared or no such action has been taken;
the CMA has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above ...;
the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;
the intervention notice was revoked and the reference is finally determined under paragraph (a) above ...;
the Secretary of State has failed to make and publish a decision under subsection (2) of section 146 within the period permitted by subsection (3) of that section or (as the case may be) under subsection (2) of section 146A within the period permitted by subsection (6) of that section and the reference is finally determined under paragraph (a) above;
the Secretary of State has decided under section 146(2) that no eligible public interest consideration is relevant and the reference is finally determined under paragraph (a) above ...;
the Secretary of State has decided under 146(2) that a public interest consideration is relevant but has decided under section 147(2) neither to accept an undertaking under section 159 nor to make an order under section 161; ...
the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;
the Secretary of State has decided under section 146(2) that a public interest consideration is relevant and has accepted an undertaking under section 159 or made an order under section 161; or
the Secretary of State has made an adverse public interest finding under section 146A(2) but has decided under section 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
the Secretary of State has made an adverse public interest finding under section 146A(2) and has accepted an undertaking under section 159 or made an order under section 161.
For the purposes of this Part the time when a market investigation reference is finally determined is—
in a case falling within subsection (3)(a)(i) or (b)(i), the expiry of the time concerned;
in a case falling within subsection (3)(a)(ii) or (b)(iii), the publication of the report;
in a case falling within subsection (3)(a)(iv) or (b)(viii) or (ix), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned; and
in any other case, the making of the decision or last decision concerned or the taking of the action concerned.
The references in subsection (4) to subsections (3)(a)(i), (ii) and (iv) include those enactments as applied by subsection (3)(b)(ii), (iv), (v), (vi) or (via).
In subsection (4)(c) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action concerned involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (3)(a)(iv) and (b)(viii) and (ix) and (4)(c).
Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as that person considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.
In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column. Expression Provision of this Act Action (and the taking of action) Section 183(1) Adverse effect on competition Section 134(2) and (2A) Adverse public interest finding Section 146A(3) Appropriate Minister Section 132(5) Business Section 183(1) Change of circumstances Section 183(1) The CMA Section 273 . . . . . . Consumer Section 183(1) Cross-market reference Section 131(6) Customer Section 183(1) Date of market investigation reference Section 137(7) Detrimental effect on customers Section 134(5) Enactment Section 183(1) Enforcement order Section 162(8) Enforcement undertaking Section 162(8) Enterprise Section 183(1) Feature of a market Section 131(2) Final determination of market investigation reference Section 183(3) to (6) Full PI reference Section 140A(12) Goods Section 183(1) Intervention notice Section 139(3) Market for goods or services Section 131(6) Market in the United Kingdom Section 131(6) Market investigation reference Section 131(6) Market study notice Section 130A(1) Market study report Section 131B(4) Minister of the Crown Section 183(1) Modify Section 183(1) Notice Section 183(1) . . . . . . Ordinary reference Section 131(6) Public interest consideration Section 139(5) Public interest consideration being finalised Section 139(7) Public interest expert Section 141B(4) Publish Section 183(7) Relevant customer benefit Section 134(8) Relevant sectoral enactment Section 136(7) Relevant sectoral regulator Section 136(8) Reports of the CMA Section 177(5) Restricted PI reference Section 140A(12) Subordinate legislation Section 183(1) Supply (in relation to the supply of goods) Section 183(1) The supply of services (and a market for services etc.) Section 183(2)
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In section 45(7) of the 1998 Act (the Competition Commission) for the words “Schedule 7 makes” there shall be substituted “Schedules 7 and 7A make”.
This paragraph does not apply to groups for which rules must be made under paragraph 19A.
After paragraph 19 of that Schedule to that Act there shall be inserted—
After Schedule 7 to that Act there shall be inserted, as Schedule 7A, the Schedule set out in Schedule 12 to this Act.
An individual is guilty of an offence if he ... agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements of the following kind relating to at least two undertakings (A and B).
The arrangements must be ones which, if operating as the parties to the agreement intend, would—
directly or indirectly fix a price for the supply by A in the United Kingdom (otherwise than to B) of a product or service,
limit or prevent supply by A in the United Kingdom of a product or service,
limit or prevent production by A in the United Kingdom of a product,
divide between A and B the supply in the United Kingdom of a product or service to a customer or customers,
divide between A and B customers for the supply in the United Kingdom of a product or service, or
be bid-rigging arrangements.
Unless subsection (2)(d), (e) or (f) applies, the arrangements must also be ones which, if operating as the parties to the agreement intend, would—
directly or indirectly fix a price for the supply by B in the United Kingdom (otherwise than to A) of a product or service,
limit or prevent supply by B in the United Kingdom of a product or service, or
limit or prevent production by B in the United Kingdom of a product.
In subsections (2)(a) to (d) and (3), references to supply or production are to supply or production in the appropriate circumstances (for which see section 189).
“Bid-rigging arrangements” are arrangements under which, in response to a request for bids for the supply of a product or service in the United Kingdom, or for the production of a product in the United Kingdom—
A but not B may make a bid, or
A and B may each make a bid but, in one case or both, only a bid arrived at in accordance with the arrangements.
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“Undertaking” has the same meaning as in Part 1 of the 1998 Act.
This section is subject to section 188A.
For section 188(2)(a), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by B in the United Kingdom.
For section 188(2)(b), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain—
at which the product or service would at the same time be supplied by B in the United Kingdom, or
at which supply by B in the United Kingdom of the product or service would be limited or prevented by the arrangements.
For section 188(2)(c), the appropriate circumstances are that A’s production of the product would be at a level in the production chain—
at which the product would at the same time be produced by B in the United Kingdom, or
at which production by B in the United Kingdom of the product would be limited or prevented by the arrangements.
For section 188(2)(d), the appropriate circumstances are that A’s supply of the product or service would be at the same level in the supply chain as B’s.
For section 188(3)(a), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by A in the United Kingdom.
For section 188(3)(b), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain—
at which the product or service would at the same time be supplied by A in the United Kingdom, or
at which supply by A in the United Kingdom of the product or service would be limited or prevented by the arrangements.
For section 188(3)(c), the appropriate circumstances are that B’s production of the product would be at a level in the production chain—
at which the product would at the same time be produced by A in the United Kingdom, or
at which production by A in the United Kingdom of the product would be limited or prevented by the arrangements.
An individual does not commit an offence under section 188(1) if, under the arrangements—
in a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, customers would be given relevant information about the arrangements before they enter into agreements for the supply to them of the product or service so affected,
in the case of bid-rigging arrangements, the person requesting bids would be given relevant information about them at or before the time when a bid is made, or
in any case, relevant information about the arrangements would be published, before the arrangements are implemented, in the manner specified at the time of the making of the agreement in an order made by the Secretary of State.
In subsection (1), “relevant information” means—
the names of the undertakings to which the arrangements relate,
a description of the nature of the arrangements which is sufficient to show why they are or might be arrangements of the kind to which section 188(1) applies,
the products or services to which they relate, and
such other information as may be specified in an order made by the Secretary of State.
An individual does not commit an offence under section 188(1) if the agreement is made in order to comply with a legal requirement.
In subsection (3), “legal requirement” has the same meaning as in paragraph 5 of Schedule 3 to the Competition Act 1998.
A power to make an order under this section—
is exercisable by statutory instrument,
may be exercised so as to make different provision for different cases or different purposes, and
includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
A person guilty of an offence under section 188 is liable—
on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
In England and Wales and Northern Ireland, proceedings for an offence under section 188 may be instituted only—
by the Director of the Serious Fraud Office, or
by or with the consent of the CMA.
No proceedings may be brought for an offence under section 188 in respect of an agreement outside the United Kingdom, unless it has been implemented in whole or in part in the United Kingdom.
Where, for the purpose of the investigation or prosecution of offences under section 188, the CMA gives a person written notice under this subsection, no proceedings for an offence under section 188 that falls within a description specified in the notice may be brought against that person in England and Wales or Northern Ireland except in circumstances specified in the notice.
In a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, it is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from customers at all times before they enter into agreements for the supply to them of the product or service.
It is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from the CMA.
It is a defence for an individual charged with an offence under section 188(1) to show that, before the making of the agreement, he or she took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or (as the case may be) their implementation.
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an offence under section 188,
conspiracy to commit such an offence, and
attempt to commit such an offence.
The CMA must prepare and publish guidance on the principles to be applied in determining, in any case, whether proceedings for an offence under section 188(1) should be instituted.
The CMA may at any time issue revised or new guidance.
Guidance published by the CMA under this section is to be published in such manner as it considers appropriate.
In preparing guidance under this section the CMA must consult—
the Director of the Serious Fraud Office;
the Lord Advocate; and
such other persons as it considers appropriate.
The CMA may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 188 has been committed.
The powers of the CMA under sections 193 and 194 are exercisable, but only for the purposes of an investigation under subsection (1), in any case where it appears to the CMA that there is good reason to exercise them for the purpose of investigating the affairs, or any aspect of the affairs, of any person (“the person under investigation”).
The CMA may by notice in writing require the person under investigation, or any other person who it has reason to believe has relevant information, to answer questions, or otherwise provide information, with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.
The CMA may by notice in writing require the person under investigation, or any other person, to produce, at a specified place and either at a specified time or forthwith, specified documents, or documents of a specified description, which appear to the CMA to relate to any matter relevant to the investigation.
If any such documents are produced, the CMA may—
take copies or extracts from them;
require the person producing them to provide an explanation of any of them.
If any such documents are not produced, the CMA may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.
A notice under subsection (1) or (2) must indicate—
the subject matter and purpose of the investigation; and
the nature of the offences created by section 201.
On an application made to it by the CMA or, in Scotland, the procurator fiscal, the appropriate body may issue a warrant if it is satisfied that there are reasonable grounds for believing—
that there are on or accessible from any premises documents which the CMA has power under section 193 to require to be produced for the purposes of an investigation; and
that—
a person has failed to comply with a requirement under that section to produce the documents;
it is not practicable to serve a notice under that section in relation to them; or
the service of such a notice in relation to them might seriously prejudice the investigation.
A warrant under this section shall authorise a named officer of the CMA, and any other officers of the CMA whom the CMA has authorised in writing to accompany the named officer—
to enter the premises, using such force as is reasonably necessary for the purpose;
to search the premises and—
take possession of any documents appearing to be of the relevant kind, or
take, in relation to any documents appearing to be of the relevant kind, any other steps which may appear to be necessary for preserving them or preventing interference with them;
to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
to require any information which is stored in any electronic form and is accessible from the premises ... to be produced in a form—
in which it can be taken away, and
in which it is visible and legible or from which it can readily be produced in a visible and legible form.
to operate any equipment found on the premises for the purposes of producing such information in such a form;
to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (d) and (e));
to take copies of, or seize, anything produced in accordance with paragraph (d) or (e) which the named officer considers relates to any matter relevant to the investigation.
In subsection (1), “appropriate body” means—
in England and Wales and Northern Ireland, the High Court or the Competition Appeal Tribunal;
in Scotland, the sheriff.
Documents are of the relevant kind if they are of a kind in respect of which the application under subsection (1) was granted.
A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16) (powers of seizure to which section 50 of that Act applies), after paragraph 73 there is inserted—
An application for a warrant under this section must be made—
in the case of an application to the High Court or the sheriff, in accordance with rules of court;
in the case of an application to the Competition Appeal Tribunal, in accordance with rules made under section 15.
The CMA may authorise any competent person who is not an officer of the CMA to exercise on its behalf all or any of the powers conferred by section 193 or 194.
No such authority may be granted except for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority.
No person is bound to comply with any requirement imposed by a person exercising powers by virtue of any authority granted under this section unless he has, if required to do so, produced evidence of his authority.
A person may not under section 193 or 194 be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to provide the name and address of his client.
A person may not under section 193 or 194 be required to disclose any information or produce any document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless—
the person to whom the obligation of confidence is owed consents to the disclosure or production; or
the CMA has authorised the making of the requirement.
In the application of this section to Scotland, the reference in subsection (1)—
to proceedings in the High Court is to be read as a reference to legal proceedings generally; and
to an entitlement on grounds of legal professional privilege is to be read as a reference to an entitlement by virtue of any rule of law whereby— are in such proceedings protected from disclosure on the ground of confidentiality.
communications between a professional legal adviser and his client, or
communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,
Nothing in section 194 authorises an officer to produce or take possession of, or make copies of or take extracts from, anything which, by virtue of subsections (1) or (2), a person could not be required to disclose or produce under section 193 or 194.
A statement by a person in response to a requirement imposed by virtue of section 193 or 194 may only be used in evidence against him—
on a prosecution for an offence under section 201(2); or
on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.
However, the statement may not be used against that person by virtue of paragraph (b) of subsection (1) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.
In the 1998 Act, after section 30 there is inserted—
The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.
In section 32 (authorisation of intrusive surveillance)—
after subsection (3) there is inserted—;
in subsection (6) after paragraph (m) there is inserted; and
In section 33 (rules for grant of authorisations) after subsection (4) there is inserted—
In subsection (5)(a) of that section, after “officer” there is inserted “ or the chairman or an officer of the OFT ”.
In section 34 (grant of authorisation in the senior officer’s absence)—
in subsection (1)(a), after “or by” there is inserted “ an officer of the OFT or ”;
in subsection (2)(a), after “may be,” there is inserted “ as chairman of the OFT or ”;
in subsection (4), after paragraph (l) there is inserted—
In section 35 (notification of authorisations for intrusive surveillance)—
in subsections (1) and (10), for “or customs” there is substituted “ , customs or OFT ”;
in subsection (10), after paragraph (b) there is inserted—;
in paragraph (c) of that subsection, at the end there is inserted “ or for a person falling within paragraph (ba). ”
In section 36 (approval required for authorisations to take effect)—
in subsection (1), after paragraph (d) there is inserted; or ;
in subsection (6), after paragraph (g) there is inserted; and
In section 37 (quashing of police and customs authorisations etc.) in subsection (1), after paragraph (d) there is inserted; or
In section 40 (information to be provided to Surveillance Commissioners) after paragraph (d) there is inserted, and .
In section 46 (restrictions on authorisations extending to Scotland), in subsection (3), after paragraph (d) there is inserted—.
“OFT” means the Office of Fair Trading;
Part 3 of the Police Act 1997 (c. 50) (authorisation of action in respect of property) is amended as follows.
In section 93 (authorisation to interfere with property etc.)—
in subsection (1B), after “customs officer” there is inserted “ or an officer of the Office of Fair Trading ”;
after subsection (2A) there is inserted—;
in subsection (3), after paragraph (d) there is inserted, or ;
in subsection (5), after paragraph (h) there is inserted; or
In section 94 (authorisation given in absence of authorising officer) in subsection (2), after paragraph (f) there is inserted—
Any person who without reasonable excuse fails to comply with a requirement imposed on him under section 193 or 194 is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
A person who, in purported compliance with a requirement under section 193 or 194— is guilty of an offence.
makes a statement which he knows to be false or misleading in a material particular; or
recklessly makes a statement which is false or misleading in a material particular,
A person guilty of an offence under subsection (2) is liable—
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both; and
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
Where any person— he is guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the documents from the persons carrying out such an investigation.
knows or suspects that an investigation by the Serious Fraud Office or the CMA into an offence under section 188 is being or is likely to be carried out; and
falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects are or would be relevant to such an investigation,
A person guilty of an offence under subsection (4) is liable—
on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both; and
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
A person who intentionally obstructs a person in the exercise of his powers under a warrant issued under section 194 is guilty of an offence and liable—
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both; and
on summary conviction, to a fine not exceeding the statutory maximum.
In sections 192 to 201—
The 1998 Act is amended as follows.
In section 28 (power to enter premises under a warrant), after subsection (3) there is inserted—
In section 62 (power to enter premises: Commission investigations), after subsection (5) there is inserted—
In section 63 (power to enter premises: Director’s special investigations), after subsection (5) there is inserted—
The Company Directors Disqualification Act 1986 (c. 46) is amended as follows.
The following sections are inserted after section 9 (matters for determining unfitness in certain cases)—
In section 1(1) (general provision about disqualification orders) for “section 6” substitute “ sections 6 and 9A ”.
In section 8A (variation etc of disqualification undertaking) after subsection (2) there is inserted the following subsection—
In section 8A for subsection (3) there is substituted—
In section 16(3) for “the Secretary of State or the official receiver or the liquidator” substitute “ a person falling within subsection (4) ”.
In section 16 after subsection (3) there is inserted the following subsection—
In section 17 (applications for leave under an order or undertaking) after subsection (3) there is inserted the following subsection—
In section 17(4) for “or 1A(1)(a)” substitute “ 1A(1)(a) or 9B(4) ”.
In section 17 after subsection (5) there are inserted the following subsections—
In section 18 (register of disqualification orders and undertakings) for subsection (2A) substitute—
The Secretary of State may by order provide that section 11 is to apply to complaints made to a specified regulator in relation to a market of a specified description as it applies to complaints made to the CMA, with such modifications as may be specified.
An order under this section—
shall be made by statutory instrument, and
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
In this section—
The Secretary of State may by order made by statutory instrument modify Schedule 8.
An order under this section may make—
different provision for different cases or different purposes;
such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
An order under this section may, in particular, modify that Schedule in its application by virtue of Part 3 of this Act, in its application by virtue of Part 4 of this Act, in its application by virtue of any other enactment (whether by virtue of Part 4 of this Act as applied by that enactment or otherwise) or in its application by virtue of every enactment that applies it.
An order under this section as extended by subsection (2) may modify any enactment comprised in or made under this Act, or any other enactment.
No order shall be made under this section unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
No modification of Schedule 8 in its application by virtue of Part 3 of this Act shall be made by an order under this section if the modification relates to a relevant merger situation or (as the case may be) a special merger situation which has been created before the coming into force of the order.
No modification shall be made by an order under this section of Schedule 8 in its application in relation to references made under section 22, 33, 45 or 62 before the coming into force of the order.
No modification shall be made by an order under this section of Schedule 8 in its application in relation to references made under section 131 or 132 before the coming into force of the order (including references made under section 131 as applied by another enactment).
Before making an order under this section, the Secretary of State shall consult the CMA.
Expressions used in this section which are also used in Part 3 of this Act have the same meaning in this section as in that Part.
Section 3(1)(d) of and Schedule 4 to the 1998 Act (which provide for the exclusion from the Chapter 1 prohibition in cases involving designated professional rules) shall cease to have effect.
Sections 78 to 80 of the 1973 Act (references to Commission other than monopoly and merger references) shall cease to have effect.
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The Secretary of State may by regulations make such modifications of the 1998 Act as he considers appropriate for the purpose of eliminating or reducing any differences between— which result (or would otherwise result) from a relevant Community instrument made after the passing of this Act.
the domestic provisions of the 1998 Act, and
European Community competition law,
In subsection (1)—
The Secretary of State may by regulations repeal or otherwise modify any provision of an Act (other than the 1998 Act) which excludes any matter from the Chapter I prohibition or the Chapter II prohibition (within the meaning of Part 1 of the 1998 Act).
The power under subsection (3) may not be exercised—
before the power under subsection (1) has been exercised; or
so as to extend the scope of any exclusion that is not being removed by the regulations.
Regulations under this section may—
confer power to make subordinate legislation;
make such consequential, supplementary, incidental, transitory, transitional or saving provision as the Secretary of State considers appropriate (including provision modifying any Act or subordinate legislation); and
make different provision for different cases or circumstances.
The power to make regulations under this section is exercisable by statutory instrument.
No regulations may be made under this section unless a draft of them has been laid before and approved by a resolution of each House of Parliament.
Paragraph 1(1)(c) of Schedule 2 to the European Communities Act 1972 (c. 68) (restriction on powers to legislate) shall not apply to regulations which implement or give effect to a relevant Community instrument made after the passing of this Act.
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In this Part references to consumers must be construed in accordance with this section.
In relation to a domestic infringement a consumer is an individual in respect of whom the first and second conditions are satisfied.
The first condition is that—
goods are or are sought to be supplied to the individual (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them, or
services are or are sought to be supplied to the individual in the course of a business carried on by the person supplying or seeking to supply them.
The second condition is that—
the individual receives or seeks to receive the goods or services otherwise than in the course of a business carried on by him, or
the individual receives or seeks to receive the goods or services with a view to carrying on a business but not in the course of a business carried on by him.
For the purposes of a domestic infringement it is immaterial whether a person supplying goods or services has a place of business in the United Kingdom.
In relation to a Community infringement a consumer is a person who is a consumer for the purposes of—
the Injunctions Directive, and
the listed Directive concerned.
A Directive is a listed Directive—
if it is a Directive of the Council of the European Communities or of the European Parliament and of the Council, and
if it is specified in Schedule 13 or to the extent that any of its provisions is so specified.
A business includes—
a professional practice;
any other undertaking carried on for gain or reward;
any undertaking in the course of which goods or services are supplied otherwise than free of charge.
The Secretary of State may by order modify Schedule 13.
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
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In this Part a domestic infringement is an act or omission which—
is done or made by a person in the course of a business,
falls within subsection (2), and
harms the collective interests of consumers in the United Kingdom.
An act or omission falls within this subsection if it is of a description specified by the Secretary of State by order and consists of any of the following—
a contravention of an enactment which imposes a duty, prohibition or restriction enforceable by criminal proceedings;
an act done or omission made in breach of contract;
an act done or omission made in breach of a non-contractual duty owed to a person by virtue of an enactment or rule of law and enforceable by civil proceedings;
an act or omission in respect of which an enactment provides for a remedy or sanction enforceable by civil proceedings;
an act done or omission made by a person supplying or seeking to supply goods or services as a result of which an agreement or security relating to the supply is void or unenforceable to any extent;
an act or omission by which a person supplying or seeking to supply goods or services purports or attempts to exercise a right or remedy relating to the supply in circumstances where the exercise of the right or remedy is restricted or excluded under or by virtue of an enactment;
an act or omission by which a person supplying or seeking to supply goods or services purports or attempts to avoid (to any extent) liability relating to the supply in circumstances where such avoidance is restricted or prevented under an enactment.
But an order under this section may provide that any description of act or omission falling within subsection (2) is not a domestic infringement.
For the purposes of subsection (2) it is immaterial—
whether or not any duty, prohibition or restriction exists in relation to consumers as such;
whether or not any remedy or sanction is provided for the benefit of consumers as such;
whether or not any proceedings have been brought in relation to the act or omission;
whether or not any person has been convicted of an offence in respect of the contravention mentioned in subsection (2)(a);
whether or not there is a waiver in respect of the breach of contract mentioned in subsection (2)(b).
References to an enactment include references to subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)).
The power to make an order under this section must be exercised by statutory instrument.
But no such order may be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.
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In this Part a Community infringement is an act or omission which harms the collective interests of consumers and which—
contravenes a listed Directive as given effect by the laws, regulations or administrative provisions of an EEA State, or
contravenes such laws, regulations or administrative provisions which provide additional permitted protections.
The laws, regulations or administrative provisions of an EEA State which give effect to a listed Directive provide additional permitted protections if—
they provide protection for consumers which is in addition to the minimum protection required by the Directive concerned, and
such additional protection is permitted by that Directive.
The Secretary of State may by order specify for the purposes of this section the law in the United Kingdom which—
gives effect to the listed Directives;
provides additional permitted protections.
References to a listed Directive must be construed in accordance with section 210.
An EEA State is a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
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Each of the following is a general enforcer—
the OFT;
every local weights and measures authority in Great Britain;
the Department of Enterprise, Trade and Investment in Northern Ireland.
A designated enforcer is any person or body (whether or not incorporated) which the Secretary of State—
thinks has as one of its purposes the protection of the collective interests of consumers, and
designates by order.
The Secretary of State may designate a public body only if he is satisfied that it is independent.
The Secretary of State may designate a person or body which is not a public body only if the person or body (as the case may be) satisfies such criteria as the Secretary of State specifies by order.
A Community enforcer is a qualified entity for the purposes of the Injunctions Directive—
which is for the time being specified in the list published in the Official Journal of the European Communities in pursuance of Article 4.3 of that Directive, but
which is not a general enforcer or a designated enforcer.
An order under this section may designate an enforcer in respect of—
all infringements;
infringements of such descriptions as are specified in the order.
An order under this section may make different provision for different purposes.
The designation of a body by virtue of subsection (3) is conclusive evidence for the purposes of any question arising under this Part that the body is a public body.
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
If requested to do so by a designated enforcer which is designated in respect of one or more Community infringements the Secretary of State must notify the Commission of the European Communities—
of its name and purpose;
of the Community infringements in respect of which it is designated.
The Secretary of State must also notify the Commission—
of the fact that a person or body in respect of which he has given notice under subsection (10) ceases to be a designated enforcer;
of any change in the name or purpose of a designated enforcer in respect of which he has given such notice;
of any change to the Community infringements in respect of which a designated enforcer is designated.
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An enforcer must not make an application for an enforcement order unless he has engaged in appropriate consultation with—
the person against whom the enforcement order would be made, and
the OFT (if it is not the enforcer).
Appropriate consultation is consultation for the purpose of—
achieving the cessation of the infringement in a case where an infringement is occurring;
ensuring that there will be no repetition of the infringement in a case where the infringement has occurred;
ensuring that there will be no repetition of the infringement in a case where the cessation of the infringement is achieved under paragraph (a);
ensuring that the infringement does not take place in the case of a Community infringement which the enforcer believes is likely to take place.
Subsection (1) does not apply if the OFT thinks that an application for an enforcement order should be made without delay.
Subsection (1) ceases to apply—
for the purposes of an application for an enforcement order at the end of the period of 14 days beginning with the day after the person against whom the enforcement order would be made receives a request for consultation from the enforcer;
for the purposes of an application for an interim enforcement order at the end of the period of seven days beginning with the day after the person against whom the interim enforcement order would be made receives a request for consultation from the enforcer.
The Secretary of State may by order make rules in relation to consultation under this section.
Such an order must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
In this section (except subsection (4)) and in sections 215 and 216 references to an enforcement order include references to an interim enforcement order.
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An application for an enforcement order must name the person the enforcer thinks—
has engaged or is engaging in conduct which constitutes a domestic or a Community infringement, or
is likely to engage in conduct which constitutes a Community infringement.
A general enforcer may make an application for an enforcement order in respect of any infringement.
A designated enforcer may make an application for an enforcement order in respect of an infringement to which his designation relates.
A Community enforcer may make an application for an enforcement order in respect of a Community infringement.
The following courts have jurisdiction to make an enforcement order—
the High Court or a county court if the person against whom the order is sought carries on business or has a place of business in England and Wales or Northern Ireland;
the Court of Session or the sheriff if the person against whom the order is sought carries on business or has a place of business in Scotland.
If an application for an enforcement order is made by a Community enforcer the court may examine whether the purpose of the enforcer justifies its making the application.
If the court thinks that the purpose of the Community enforcer does not justify its making the application the court may refuse the application on that ground alone.
The purpose of a Community enforcer must be construed by reference to the Injunctions Directive.
An enforcer which is not the OFT must notify the OFT of the result of an application under this section.
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This section applies if the OFT believes that an enforcer other than the OFT intends to apply for an enforcement order.
In such a case the OFT may direct that if an application in respect of a particular infringement is to be made it must be made—
only by the OFT, or
only by such other enforcer as the OFT directs.
If the OFT directs that only it may make an application that does not prevent—
the OFT or any enforcer from accepting an undertaking under section 219, or
the OFT from taking such other steps it thinks appropriate (apart from making an application) for the purpose of securing that the infringement is not committed, continued or repeated.
The OFT may vary or withdraw a direction given under this section.
The OFT must take such steps as it thinks appropriate to bring a direction (or a variation or withdrawal of a direction) to the attention of enforcers it thinks may be affected by it.
But this section does not prevent an application for an enforcement order being made by a Community enforcer.
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This section applies if an application for an enforcement order is made under section 215 and the court finds that the person named in the application has engaged in conduct which constitutes the infringement.
This section also applies if such an application is made in relation to a Community infringement and the court finds that the person named in the application is likely to engage in conduct which constitutes the infringement.
If this section applies the court may make an enforcement order against the person.
In considering whether to make an enforcement order the court must have regard to whether the person named in the application—
has given an undertaking under section 219 in respect of conduct such as is mentioned in subsection (3) of that section;
has failed to comply with the undertaking.
An enforcement order must—
indicate the nature of the conduct to which the finding under subsection (1) or (2) relates, and
direct the person to comply with subsection (6).
A person complies with this subsection if he—
does not continue or repeat the conduct;
does not engage in such conduct in the course of his business or another business;
does not consent to or connive in the carrying out of such conduct by a body corporate with which he has a special relationship (within the meaning of section 222(3)).
But subsection (6)(a) does not apply in the case of a finding under subsection (2).
An enforcement order may require a person against whom the order is made to publish in such form and manner and to such extent as the court thinks appropriate for the purpose of eliminating any continuing effects of the infringement—
the order;
a corrective statement.
If the court makes a finding under subsection (1) or (2) it may accept an undertaking by the person—
to comply with subsection (6), or
to take steps which the court believes will secure that he complies with subsection (6).
An undertaking under subsection (9) may include a further undertaking by the person to publish in such form and manner and to such extent as the court thinks appropriate for the purpose of eliminating any continuing effects of the infringement—
the terms of the undertaking;
a corrective statement.
If the court— it must not make an enforcement order in respect of the infringement to which the undertaking relates.
makes a finding under subsection (1) or (2), and
accepts an undertaking under subsection (9),
An enforcement order made by a court in one part of the United Kingdom has effect in any other part of the United Kingdom as if made by a court in that part.
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The court may make an interim enforcement order against a person named in the application for the order if it appears to the court—
that it is alleged that the person is engaged in conduct which constitutes a domestic or Community infringement or is likely to engage in conduct which constitutes a Community infringement,
that if the application had been an application for an enforcement order it would be likely to be granted,
that it is expedient that the conduct is prohibited or prevented (as the case may be) immediately, and
if no notice of the application has been given to the person named in the application that it is appropriate to make an interim enforcement order without notice.
An interim enforcement order must—
indicate the nature of the alleged conduct, and
direct the person to comply with subsection (3).
A person complies with this subsection if he—
does not continue or repeat the conduct;
does not engage in such conduct in the course of his business or another business;
does not consent to or connive in the carrying out of such conduct by a body corporate with which he has a special relationship (within the meaning of section 222(3)).
But subsection (3)(a) does not apply in so far as the application is made in respect of an allegation that the person is likely to engage in conduct which constitutes a Community infringement.
An application for an interim enforcement order against a person may be made at any time before an application for an enforcement order against the person in respect of the same conduct is determined.
An application for an interim enforcement order must refer to all matters—
which are known to the applicant, and
which are material to the question whether or not the application is granted.
If an application for an interim enforcement order is made without notice the application must state why no notice has been given.
The court may vary or discharge an interim enforcement order on the application of—
the enforcer who applied for the order;
the person against whom it is made.
An interim enforcement order against a person is discharged on the determination of an application for an enforcement order made against the person in respect of the same conduct.
If it appears to the court as mentioned in subsection (1)(a) to (c) the court may instead of making an interim enforcement order accept an undertaking from the person named in the application—
to comply with subsection (3), or
to take steps which the court believes will secure that he complies with subsection (3).
An interim enforcement order made by a court in one part of the United Kingdom has effect in any other part of the United Kingdom as if made by a court in that part.
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This section applies if an enforcer has power to make an application under section 215.
In such a case the enforcer may accept from a person to whom subsection (3) applies an undertaking that the person will comply with subsection (4).
This subsection applies to a person who the enforcer believes—
has engaged in conduct which constitutes an infringement;
is engaging in such conduct;
is likely to engage in conduct which constitutes a Community infringement.
A person complies with this subsection if he—
does not continue or repeat the conduct;
does not engage in such conduct in the course of his business or another business;
does not consent to or connive in the carrying out of such conduct by a body corporate with which he has a special relationship (within the meaning of section 222(3)).
But subsection (4)(a) does not apply in the case of an undertaking given by a person in so far as subsection (3) applies to him by virtue of paragraph (c).
If an enforcer accepts an undertaking under this section it must notify the OFT—
of the terms of the undertaking;
of the identity of the person who gave it.
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This section applies if the court—
makes an enforcement order under section 217,
makes an interim enforcement order under section 218, or
accepts an undertaking under either of those sections.
In such a case the OFT has the same right to apply to the court in respect of a failure to comply with the order or undertaking as the enforcer who made the application for the order.
An application to the court in respect of a failure to comply with an undertaking may include an application for an enforcement order or for an interim enforcement order.
If the court finds that an undertaking is not being complied with it may make an enforcement order or an interim enforcement order (instead of making any other order it has power to make).
In the case of an application for an enforcement order or for an interim enforcement order as mentioned in subsection (3) sections 214 and 216 must be ignored and sections 215 and 217 or 218 (as the case may be) apply subject to the following modifications—
section 215(1)(b) must be ignored;
section 215(5) must be ignored and the application must be made to the court which accepted the undertaking;
section 217(9) to (11) must be ignored;
section 218(10) must be ignored.
If an enforcer which is not the OFT makes an application in respect of the failure of a person to comply with an enforcement order, an interim enforcement order or an undertaking given under section 217 or 218 the enforcer must notify the OFT—
of the application;
of any order made by the court on the application.
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Subsection (2) applies to—
every general enforcer;
every designated enforcer which is a public body.
An enforcer to which this subsection applies has power to take proceedings in EEA States other than the United Kingdom for the cessation or prohibition of a Community infringement.
Subsection (4) applies to—
every general enforcer;
every designated enforcer.
An enforcer to which this subsection applies may co-operate with a Community enforcer—
for the purpose of bringing proceedings mentioned in subsection (2);
in connection with the exercise by the Community enforcer of its functions under this Part.
An EEA State is a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.
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This section applies if the person whose conduct constitutes a domestic infringement or a Community infringement is a body corporate.
If the conduct takes place with the consent or connivance of a person (an accessory) who has a special relationship with the body corporate, the consent or connivance is also conduct which constitutes the infringement.
A person has a special relationship with a body corporate if he is—
a controller of the body corporate, or
a director, manager, secretary or other similar officer of the body corporate or a person purporting to act in such a capacity.
A person is a controller of a body corporate if—
the directors of the body corporate or of another body corporate which is its controller are accustomed to act in accordance with the person’s directions or instructions, or
either alone or with an associate or associates he is entitled to exercise or control the exercise of one third or more of the voting power at any general meeting of the body corporate or of another body corporate which is its controller.
An enforcement order or an interim enforcement order may be made against an accessory in respect of an infringement whether or not such an order is made against the body corporate.
The court may accept an undertaking under section 217(9) or 218(10) from an accessory in respect of an infringement whether or not it accepts such an undertaking from the body corporate.
An enforcer may accept an undertaking under section 219 from an accessory in respect of an infringement whether or not it accepts such an undertaking from the body corporate.
Subsection (9) applies if—
an order is made as mentioned in subsection (5), or
an undertaking is accepted as mentioned in subsection (6) or (7).
In such a case for subsection (6) of section 217, subsection (3) of section 218 or subsection (4) of section 219 (as the case may be) there is substituted the following subsection—
A person is an associate of an individual if—
he is the spouse of the individual;
he is a relative of the individual;
he is a relative of the individual’s spouse;
he is the spouse of a relative of the individual;
he is the spouse of a relative of the individual’s spouse;
he lives in the same household as the individual otherwise than merely because he or the individual is the other’s employer, tenant, lodger or boarder;
he is a relative of a person who is an associate of the individual by virtue of paragraph (f);
he has at some time in the past fallen within any of paragraphs (a) to (g).
A person is also an associate of—
an individual with whom he is in partnership;
an individual who is an associate of the individual mentioned in paragraph (a);
a body corporate if he is a controller of it or he is an associate of a person who is a controller of the body corporate.
A body corporate is an associate of another body corporate if—
the same person is a controller of both;
a person is a controller of one and persons who are his associates are controllers of the other;
a person is a controller of one and he and persons who are his associates are controllers of the other;
a group of two or more persons is a controller of each company and the groups consist of the same persons;
a group of two or more persons is a controller of each company and the groups may be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he is an associate.
A relative is a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant.
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This section applies if a court makes an enforcement order or an interim enforcement order against a body corporate and—
at the time the order is made the body corporate is a member of a group of interconnected bodies corporate,
at any time when the order is in force the body corporate becomes a member of a group of interconnected bodies corporate, or
at any time when the order is in force a group of interconnected bodies corporate of which the body corporate is a member is increased by the addition of one or more further members.
The court may direct that the order is binding upon all of the members of the group as if each of them were the body corporate against which the order is made.
A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.
Any two bodies corporate are interconnected—
if one of them is a subsidiary of the other, or
if both of them are subsidiaries of the same body corporate.
“Subsidiary” must be construed in accordance with section 736 of the Companies Act 1985 (c. 6).
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The OFT may for any of the purposes mentioned in subsection (2) give notice to any person requiring the person to provide it with the information specified in the notice.
The purposes are—
to enable the OFT to exercise or to consider whether to exercise any function it has under this Part;
to enable a designated enforcer to which section 225 does not apply to consider whether to exercise any function it has under this Part;
to enable a Community enforcer to consider whether to exercise any function it has under this Part;
to ascertain whether a person has complied with or is complying with an enforcement order, an interim enforcement order or an undertaking given under section 217(9), 218(10) or 219.
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This section applies to—
every general enforcer (other than the OFT);
every designated enforcer which is a public body.
An enforcer to which this section applies may for any of the purposes mentioned in subsection (3) give notice to any person requiring the person to provide the enforcer with the information specified in the notice.
The purposes are—
to enable the enforcer to exercise or to consider whether to exercise any function it has under this Part;
to ascertain whether a person has complied with or is complying with an enforcement order or an interim enforcement order made on the application of the enforcer or an undertaking given under section 217(9) or 218(10) (as the case may be) following such an application or an undertaking given to the enforcer under section 219.
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This section applies to a notice given under section 224 or 225.
The notice must—
be in writing;
specify the purpose for which the information is required.
If the purpose is as mentioned in section 224(2)(a), (b) or (c) or 225(3)(a) the notice must specify the function concerned.
A notice may specify the time within which and manner in which it is to be complied with.
A notice may require the production of documents or any description of documents.
An enforcer may take copies of any documents produced in compliance with such a requirement.
A notice may be varied or revoked by a subsequent notice.
But a notice must not require a person to provide any information or produce any document which he would be entitled to refuse to provide or produce—
in proceedings in the High Court on the grounds of legal professional privilege;
in proceedings in the Court of Session on the grounds of confidentiality of communications.
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If a person fails to comply with a notice given under section 224 or 225 the enforcer who gave the notice may make an application under this section.
If it appears to the court that the person to whom the notice was given has failed to comply with the notice the court may make an order under this section.
An order under this section may require the person to whom the notice was given to do anything the court thinks it is reasonable for him to do for any of the purposes mentioned in section 224 or 225 (as the case may be) to ensure that the notice is complied with.
An order under this section may require the person to meet all the costs or expenses of the application.
If the person is a company or association the court in proceeding under subsection (4) may require any officer of the company or association who is responsible for the failure to meet the costs or expenses.
The court is a court which may make an enforcement order.
In subsection (5) an officer of a company is a person who is a director, manager, secretary or other similar officer of the company.
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Proceedings under this Part are civil proceedings for the purposes of—
section 11 of the Civil Evidence Act 1968 (c. 64) (convictions admissible as evidence in civil proceedings);
section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (c. 70) (corresponding provision in Scotland);
section 7 of the Civil Evidence Act (Northern Ireland) 1971 (c. 36 (N.I.)) (corresponding provision in Northern Ireland).
In proceedings under this Part any finding by a court in civil proceedings that an act or omission mentioned in section 211(2)(b), (c) or (d) or 212(1) has occurred—
is admissible as evidence that the act or omission occurred;
unless the contrary is proved, is sufficient evidence that the act or omission occurred.
But subsection (2) does not apply to any finding—
which has been reversed on appeal;
which has been varied on appeal so as to negative it.
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As soon as is reasonably practicable after the passing of this Act the OFT must prepare and publish advice and information with a view to—
explaining the provisions of this Part to persons who are likely to be affected by them, and
indicating how the OFT expects such provisions to operate.
The OFT may at any time publish revised or new advice or information.
Advice or information published in pursuance of subsection (1)(b) may include advice or information about the factors which the OFT may take into account in considering how to exercise the functions conferred on it by this Part.
Advice or information published by the OFT under this section is to be published in such form and in such manner as it considers appropriate.
In preparing advice or information under this section the OFT must consult such persons as it thinks are representative of persons affected by this Part.
If any proposed advice or information relates to a matter in respect of which another general enforcer or a designated enforcer may act the persons to be consulted must include that enforcer.
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This section applies if a local weights and measures authority in England and Wales intends to start proceedings for an offence under an enactment or subordinate legislation specified by the Secretary of State by order for the purposes of this section.
The authority must give the OFT—
notice of its intention to start the proceedings;
a summary of the evidence it intends to lead in respect of the charges.
The authority must not start the proceedings until whichever is the earlier of the following—
the end of the period of 14 days starting with the day on which the authority gives the notice;
the day on which it is notified by the OFT that the OFT has received the notice and summary given under subsection (2).
The authority must also notify the OFT of the outcome of the proceedings after they are finally determined.
But such proceedings are not invalid by reason only of the failure of the authority to comply with this section.
Subordinate legislation has the same meaning as in section 21(1) of the Interpretation Act 1978 (c. 30).
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
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This section applies if—
a person is convicted of an offence by or before a court in the United Kingdom, or
a judgment is given against a person by a court in civil proceedings in the United Kingdom.
The court may make arrangements to bring the conviction or judgment to the attention of the OFT if it appears to the court—
having regard to the functions of the OFT under this Part or under the Estate Agents Act 1979 (c. 38) that it is expedient for the conviction or judgment to be brought to the attention of the OFT, and
without such arrangements the conviction or judgment may not be brought to the attention of the OFT.
For the purposes of subsection (2) it is immaterial that the proceedings have been finally disposed of by the court.
Judgment includes an order or decree and references to the giving of the judgment must be construed accordingly.
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References in this Part to goods and services must be construed in accordance with this section.
Goods include—
buildings and other structures;
ships, aircraft and hovercraft.
The supply of goods includes—
supply by way of sale, lease, hire or hire purchase;
in relation to buildings and other structures, construction of them by one person for another.
Goods or services which are supplied wholly or partly outside the United Kingdom must be taken to be supplied to or for a person in the United Kingdom if they are supplied in accordance with arrangements falling within subsection (5).
Arrangements fall within this subsection if they are made by any means and—
at the time the arrangements are made the person seeking the supply is in the United Kingdom, or
at the time the goods or services are supplied (or ought to be supplied in accordance with the arrangements) the person responsible under the arrangements for effecting the supply is in or has a place of business in the United Kingdom.
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This section has effect for the purpose of references in this Part to a person supplying or seeking to supply goods under—
a hire-purchase agreement;
a credit-sale agreement;
a conditional sale agreement.
The references include references to a person who conducts any antecedent negotiations relating to the agreement.
The following expressions must be construed in accordance with section 189 of the Consumer Credit Act 1974 (c. 39) —
hire-purchase agreement;
credit-sale agreement;
conditional sale agreement;
antecedent negotiations.
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References in this Part to the supply of services must be construed in accordance with this section.
The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.
The supply of services includes—
performing for gain or reward any activity other than the supply of goods;
rendering services to order;
the provision of services by making them available to potential users.
The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.
The supply of services includes making arrangements by means of a relevant agreement (within the meaning of section 189(2) of the Broadcasting Act 1990 (c. 42)) for sharing the use of telecommunications apparatus.
The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State specifies by order.
The power to make an order under subsection (6) must be exercised by statutory instrument.
But no such order may be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.
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This section applies to specified information which relates to—
the affairs of an individual;
any business of an undertaking.
Such information must not be disclosed— unless the disclosure is permitted under this Part.
during the lifetime of the individual, or
while the undertaking continues in existence,
But subsection (2) does not prevent the disclosure of any information if the information has on an earlier occasion been disclosed to the public in circumstances which do not contravene—
that subsection;
any other enactment or rule of law prohibiting or restricting the disclosure of the information.
Nothing in this Part authorises a disclosure of information which contravenes the data protection legislation.
Nothing in this Part affects the Competition Appeal Tribunal.
This Part (except section 244) does not affect any power or duty to disclose information which exists apart from this Part.
In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
Information is specified information if it comes to a public authority in connection with the exercise of any function it has under or by virtue of—
Part 1, 3, 4, 6 or 7;
an enactment specified in Schedule 14;
such subordinate legislation as the Secretary of State may by order specify for the purposes of this subsection.
It is immaterial whether information comes to a public authority before or after the passing of this Act.
Public authority (except in the expression “overseas public authority”) must be construed in accordance with section 6 of the Human Rights Act 1998 (c. 42).
In subsection (1) the reference to an enactment includes a reference to an enactment contained in—
an Act of the Scottish Parliament;
Northern Ireland legislation;
subordinate legislation.
The Secretary of State may by order amend Schedule 14.
The power to make an order under subsection (5) includes power to add, vary or remove a reference to any provision of—
an Act of the Scottish Parliament;
Northern Ireland legislation.
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
This section applies for the purposes of this Part.
This Part does not prohibit the disclosure by a public authority of information held by it to any other person if it obtains each required consent.
If the information was obtained by the authority from a person who had the information lawfully and the authority knows the identity of that person the consent of that person is required.
If the information relates to the affairs of an individual the consent of the individual is required.
If the information relates to the business of an undertaking the consent of the person for the time being carrying on the business is required.
For the purposes of subsection (4) consent may be given—
in the case of a company by a director, secretary or other officer of the company;
in the case of a partnership by a partner;
in the case of an unincorporated body or association by a person concerned in the management or control of the body or association.
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A public authority which holds information to which section 237 applies may disclose that information for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment.
If information is disclosed under subsection (1) so that it is not made available to the public it must not be further disclosed by a person to whom it is so disclosed other than with the agreement of the public authority for the purpose mentioned in that subsection.
A public authority which holds information to which section 237 applies may disclose that information to any other person for the purpose of facilitating the exercise by that person of any function he has under or by virtue of—
this Act;
an enactment specified in Schedule 15;
such subordinate legislation as the Secretary of State may by order specify for the purposes of this subsection.
Information disclosed under subsection (1) so that it is not made available to the public must not be used by the person to whom it is disclosed for any purpose other than that mentioned in subsection (1).
Information disclosed under subsection (3) must not be used by the person to whom it is disclosed for any purpose other than a purpose relating to a function mentioned in that subsection.
In subsection (1) the reference to an enactment includes a reference to an enactment contained in—
an Act of the Scottish Parliament;
Northern Ireland legislation;
subordinate legislation.
The Secretary of State may by order amend Schedule 15.
The power to make an order under subsection (6) includes power to add, vary or remove a reference to any provision of—
an Act of the Scottish Parliament;
Northern Ireland legislation.
An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
A public authority which holds information to which section 237 applies may disclose that information to any person—
in connection with the investigation of any criminal offence in any part of the United Kingdom;
for the purposes of any criminal proceedings there;
for the purpose of any decision whether to start or bring to an end such an investigation or proceedings.
Information disclosed under this section must not be used by the person to whom it is disclosed for any purpose other than that for which it is disclosed.
A public authority must not make a disclosure under this section unless it is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it.
A public authority which holds prescribed information to which section 237 applies may disclose that information to any person—
for the purposes of, or in connection with, prescribed civil proceedings (including prospective proceedings) in the United Kingdom or elsewhere, or
for the purposes of obtaining legal advice in relation to such proceedings, or
otherwise for the purposes of establishing, enforcing or defending legal rights that are or may be the subject of such proceedings.
Subsection (1) does not apply to—
information which comes to a public authority in connection with an investigation under Part 4, 5 or 6 of the 1973 Act or under section 11 of the Competition Act 1980;
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information which comes to a public authority in connection with an investigation under Part 3 or 4 or section 174 of this Act;
information which comes to a public authority in connection with an investigation under the Competition Act 1998 (c. 41).
In subsection (1) “prescribed” means prescribed by order of the Secretary of State.
An order under this section—
may prescribe information, or civil proceedings, for the purposes of this section by reference to such factors as appear to the Secretary of State to be appropriate;
may prescribe for the purposes of this section all information, or civil proceedings, or all information or civil proceedings not falling within one or more specified exceptions;
must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Information disclosed under this section must not be used by the person to whom it is disclosed for any purpose other than those specified in subsection (1).
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A public authority which holds information to which section 237 applies (the discloser) may disclose that information to an overseas public authority for the purpose mentioned in subsection (2).
The purpose is facilitating the exercise by the overseas public authority of any function which it has relating to—
carrying out investigations in connection with the enforcement of any relevant legislation by means of civil proceedings;
bringing civil proceedings for the enforcement of such legislation or the conduct of such proceedings;
the investigation of crime;
bringing criminal proceedings or the conduct of such proceedings;
deciding whether to start or bring to an end such investigations or proceedings.
But subsection (1) does not apply to any of the following—
information which is held by a person who is designated by virtue of section 213(4) as a designated enforcer for the purposes of Part 8;
information which comes to a public authority in connection with an investigation under Part 4, 5 or 6 of the 1973 Act or under section 11 of the Competition Act 1980 (c. 21);
competition information within the meaning of section 351 of the Financial Services and Markets Act 2000 (c. 8);
information which comes to a public authority in connection with an investigation under Part 3 or 4 or section 174 of this Act.
The Secretary of State may direct that a disclosure permitted by this section must not be made if he thinks that in connection with any matter in respect of which the disclosure could be made it is more appropriate—
if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another specified country or territory;
if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another specified country or territory.
The Secretary of State must take such steps as he thinks are appropriate to bring a direction under subsection (4) to the attention of persons likely to be affected by it.
In deciding whether to disclose information under this section a public authority must have regard in particular to the following considerations—
whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;
whether the law of the country or territory to whose authority the disclosure would be made provides appropriate protection against self-incrimination in criminal proceedings;
whether the law of that country or territory provides appropriate protection in relation to the storage and disclosure of personal data;
whether there are arrangements in place for the provision of mutual assistance as between the United Kingdom and that country or territory in relation to the disclosure of information of the kind to which section 237 applies.
Protection is appropriate if it provides protection in relation to the matter in question which corresponds to that so provided in any part of the United Kingdom.
The Secretary of State may by order—
modify the list of considerations in subsection (6);
add to those considerations;
remove any of those considerations.
An order under subsection (8) must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Information disclosed under this section—
may be disclosed subject to the condition that it must not be further disclosed without the agreement of the discloser, and
must not otherwise be used by the overseas public authority to which it is disclosed for any purpose other than that for which it is first disclosed.
An overseas public authority is a person or body in any country or territory outside the United Kingdom which appears to the discloser to exercise functions of a public nature in relation to any of the matters mentioned in paragraphs (a) to (e) of subsection (2).
Relevant legislation is—
this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);
any enactment or subordinate legislation specified in an order under section 211(2);
any enactment or subordinate legislation specified in an order under section 212(3);
legislation in any country or territory outside the United Kingdom which appears to the discloser to make provision corresponding to this Act or to any such enactment or subordinate legislation.
A public authority must have regard to the following considerations before disclosing any specified information (within the meaning of section 238(1)).
The first consideration is the need to exclude from disclosure (so far as practicable) any sensitive information.
The second consideration is the need to exclude from disclosure (so far as practicable) any commercial information or private information.
commercial information whose disclosure the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
information relating to the private affairs of an individual whose disclosure the authority thinks might significantly harm the individual’s interests.
The third consideration is the extent to which the disclosure of the information mentioned in subsection (3)(a) or (b) is necessary for the purpose for which the authority is permitted to make the disclosure.
A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose of facilitating both—
the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment, and
the exercise by the overseas public authority of any function which it has relating to—
carrying out investigations in connection with the enforcement of any relevant law by means of civil proceedings;
bringing civil proceedings for the enforcement of such law or the conduct of such proceedings;
the investigation of crime;
bringing criminal proceedings or the conduct of such proceedings;
deciding whether to start or bring to an end such investigations or proceedings.
Subsection (1) does not apply to any of the following—
information which is held by a person who is a private designated enforcer for the purposes of Chapter 3 of Part 3 of the Digital Markets, Competition and Consumers Act 2024 (see section 151 of that Act);
information which comes to a public authority in connection with an investigation under Part 4 or section 174 of this Act;
information which comes to a public authority in connection with an investigation under section 11 of the Competition Act 1980;
legacy information within the meaning of subsection (5).
In subsection (1)(a), the reference to an enactment includes a reference to an enactment contained in—
an Act of the Scottish Parliament;
Northern Ireland legislation;
subordinate legislation.
In subsection (1)(b)(i), “relevant law” means—
this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);
any enactment, obligation or rule of law specified in Schedule 15 to the Digital Markets, Competition and Consumers Act 2024 (consumer protection enactments);
any legislation, or any obligation or rule of law in a country or territory outside the United Kingdom which appears to the discloser to make provision corresponding or similar to anything within paragraphs (a) and (b).
In subsection (2)(d), “legacy information” means information which—
comes to a public authority in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Parts 4 or 6 of the 1973 Act;
came to a public authority—
before the coming into force of this section, and
in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Part 5 of the 1973 Act;
came to a public authority—
before 1 July 2021, and
in connection with an investigation under Part 3 of the Enterprise Act 2002.
A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose mentioned in section 243A(1)(b).
Subsection (2) of section 243A applies for the purposes of subsection (1) of this section as it applies for the purposes of subsection (1) of that section.
A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for a purpose permitted under or by virtue of a designated cooperation arrangement.
“Designated cooperation arrangement” means an arrangement or agreement that meets all of Conditions A to D.
Condition A is that the arrangement or agreement is between—
a public authority and an overseas public authority, or
the United Kingdom and a country or territory.
Condition B is that the arrangement or agreement relates to cooperation between— for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).
the public authority and the overseas public authority, or
public authorities in the United Kingdom and persons or bodies in that country or territory,
Condition C is that the arrangement or agreement provides for— to provide corresponding or substantially similar assistance to each other for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).
the overseas public authority and the public authority, or
a person or body in that country or territory and public authorities in the United Kingdom,
Condition D is that the arrangement or agreement is designated in regulations made by the Secretary of State.
Before designating an arrangement or agreement in regulations under subsection (6), the Secretary of State must have regard in particular to whether the arrangement or agreement contains provision restricting or preventing—
the use for another purpose of information disclosed for a purpose permitted under or by virtue of the arrangement or agreement;
the further disclosure of such information.
The Secretary of State may not designate an arrangement or agreement in regulations under subsection (6) unless the Secretary of State is satisfied that—
the law and practice of the country or territory, or the country or territory of the overseas public authority, with whom the arrangement or agreement is with provides appropriate protection against self-incrimination in criminal proceedings, and
the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.
For the purposes of subsection (8), protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.
Regulations under subsection (6) are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Subsections (2) and (3) apply to information disclosed by virtue of section 243A to the extent that the disclosure was to facilitate the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment (“the original function”) in relation to a particular matter (“the original matter”).
The information must not be used by the overseas public authority other than for facilitating the exercise by the discloser of the original function in relation to the original matter unless—
the use is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (other than the original function) whether or not in relation to the original matter, and
the discloser consents to the use of that information for that purpose.
The information must not be further disclosed by the overseas public authority unless—
the further disclosure is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (whether or not the original function) whether or not in relation to the original matter, and
the discloser consents to the further disclosure of the information for that purpose.
Subsections (5) and (6) apply to information disclosed by virtue of section 243A or 243B to the extent that the disclosure was to facilitate the exercise of functions of an overseas public authority relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (“the original function”) in relation to a particular matter (“the original matter”).
The information must not be used by the overseas public authority other than for facilitating the exercise by the authority of the original function in relation to the original matter unless—
the use is for the purpose of facilitating the exercise of a function which the authority has relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (other than the original function) whether or not in relation to the original matter, and
the discloser consents to the use of that information for that purpose.
The information must not be further disclosed by the overseas public authority unless—
the further disclosure is for the purpose of facilitating the exercise of any of its functions relating to anything mentioned in sub-paragraphs (i) to (v) of subsection (1)(b) of section 243A (whether or not the original function) whether or not in relation to the original matter, and
the discloser consents to the further disclosure of the information for that purpose.
In deciding whether to consent to the use or further disclosure of information for the purposes of subsection (2)(b), (3)(b), (5)(b) or (6)(b), the discloser must have regard to the considerations in section 243F to which it would be required to have regard if it were deciding to disclose the information under 243A or 243B.
Nothing in this section prevents information being used, or further disclosed, by the overseas public authority if that use, or further disclosure, is required under the law of the country or territory of the authority.
The Secretary of State may direct that a disclosure permitted under section 243A or 243B must not be made if the Secretary of State thinks that, in connection with any matter in respect of which the disclosure could be made, it is more appropriate—
if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another specified country or territory (rather than by the overseas public authority);
if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another specified country or territory (rather than in the country or territory of the overseas authority).
In subsection (1), “specified” means specified in the direction.
The Secretary of State may not make a direction under this section in relation to a disclosure permitted under section 243A or 243B that relates to assistance provided by a relevant regulator to an overseas regulator by virtue of Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024.
The Secretary of State must take such steps as the Secretary of State thinks are appropriate to bring a direction under subsection (1) to the attention of persons likely to be affected by it.
This section applies when a public authority is deciding whether to make a disclosure under section 243A or 243B.
In deciding whether to make a disclosure under section 243A, the public authority must have regard in particular to the following considerations—
whether the law and practice of the country or territory to whose authority the disclosure would be made provides appropriate protection against self-incrimination in criminal proceedings;
whether the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.
In deciding whether to make a disclosure under section 243B, the public authority must have regard in particular to the considerations in subsection (2) and the following additional considerations—
whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;
whether the disclosure would further the aims or purposes of any convention or treaty relating in whole or in part to cooperation in matters relating to competition or consumer protection to which the United Kingdom and the country or territory of the authority to whom the disclosure would be made are parties;
whether there are arrangements in place for the provision of mutual assistance as between the United Kingdom and that country or territory to whose authority the disclosure would be made in relation to the disclosure of information of the kind to which section 237 applies;
whether a person or body in that country or territory would assist the public authority in a way that corresponds or is substantially similar to the assistance that it is proposed the public authority give to the overseas public authority by making the disclosure.
For the purposes of this section, protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.
The Secretary of State may by regulations amend subsections (2) and (3) so as to—
alter any consideration for the time being included in those subsections;
add further considerations;
remove any considerations.
Regulations under subsection (5) are to be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House of Parliament.
A person commits an offence if he discloses information to which section 237 applies in contravention of section 237(2).
A person commits an offence if he discloses information in contravention of a direction given under section 243E.
A person commits an offence if he uses information disclosed to him under this Part for a purpose which is not permitted under this Part.
A person who commits an offence under this section is liable—
on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both;
on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both.
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an Act of the Scottish Parliament;
Northern Ireland legislation.
The following enactments (which make provision as to the disclosure of certain information) shall cease to have effect—
section 28(5) and (5A) of the Trade Descriptions Act 1968 (c. 29);
sections 30(3) and 133 of the 1973 Act;
paragraph 12 of the Schedule to the Prices Act 1974 (c. 24);
section 174 of the Consumer Credit Act 1974 (c. 39);
section 10 of the Estate Agents Act 1979 (c. 38);
section 19(1) to (3), (4)(c), (d) and (f) and (5) and (6) of the Competition Act 1980 (c. 21);
section 38 of the Consumer Protection Act 1987 (c. 43);
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paragraph 5 of Schedule 2 to the Timeshare Act 1992 (c. 35);
sections 55 and 56 of and Schedule 11 to the Competition Act 1998 (c. 41);
section 351(1) to (3) and (7) of and Schedule 19 to the Financial Services and Markets Act 2000 (c. 8).
In this Part—
The following shall be substituted for Part II of the Insolvency Act 1986 (c. 45) (administration orders)—
The Schedule B1 set out in Schedule 16 to this Act shall be inserted after Schedule A1 to the Insolvency Act 1986.
Schedule 17 (minor and consequential amendments relating to administration) shall have effect.
The Secretary of State may by order amend an enactment in consequence of this section.
An order under subsection (4)—
must be made by statutory instrument, and
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Section 248 shall have no effect in relation to—
a company holding an appointment under Chapter I of Part II of the Water Industry Act 1991 (c. 56) (water and sewerage undertakers),
a protected railway company within the meaning of section 59 of the Railways Act 1993 (c. 43) (railway administration order) (including that section as it has effect by virtue of section 19 of the Channel Tunnel Rail Link Act 1996 (c. 61) (administration)),
a qualifying water supply licensee within the meaning of subsection (6) of section 23 of the Water Industry Act 1991 (meaning and effect of special administration order) or a qualifying sewerage licensee within the meaning of subsection (8) of that section,
a licence company within the meaning of section 26 of the Transport Act 2000 (c. 38) (air traffic services),
a public-private partnership company within the meaning of section 210 of the Greater London Authority Act 1999 (c. 29) (public-private partnership agreement), or
a building society within the meaning of section 119 of the Building Societies Act 1986 (c. 53) (interpretation).
A reference in an Act listed in subsection (1) to a provision of Part II of the Insolvency Act 1986 (or to a provision which has effect in relation to a provision of that Part of that Act) shall, in so far as it relates to a company or society listed in subsection (1), continue to have effect as if it referred to Part II as it had effect immediately before the coming into force of section 248.
But the effect of subsection (2) in respect of a particular class of company or society may be modified by order of—
the Treasury, in the case of building societies, or
the Secretary of State, in any other case.
An order under subsection (3) may make consequential amendment of an enactment.
An order under subsection (3)—
must be made by statutory instrument, and
may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
An amendment of the Insolvency Act 1986 (c. 45) made by this Act is without prejudice to any power conferred by Part VII of the Companies Act 1989 (c. 40) (financial markets) to modify the law of insolvency.
The following shall be inserted after Chapter III of Part III of the Insolvency Act 1986 (receivership: receivers’ powers)—
The Schedule 2A set out in Schedule 18 to this Act shall be inserted after Schedule 2 to the Insolvency Act 1986 (c. 45).
The following paragraphs of Schedule 6 to the Insolvency Act 1986 (categories of preferential debts) shall cease to have effect—
paragraphs 1 and 2 (debts due to Inland Revenue),
paragraphs 3 to 5C(debts due to Customs and Excise), and
paragraphs 6 and 7(social security contributions).
The following paragraphs of Schedule 3 to the Bankruptcy (Scotland) Act 1985 (c. 66) (list of preferred debts) shall cease to have effect—
paragraph 1 (debts due to Inland Revenue),
paragraph 2 (debts due to Customs and Excise), and
paragraph 3 (social security contributions).
In section 386 of the Insolvency Act 1986 (categories of preferential debts) for the parenthetical words after “Schedule 6 to this Act” there shall be substituted “ (contributions to occupational pension schemes; remuneration, &c. of employees; levies on coal and steel production) ”.
The following shall be inserted after section 176 of the Insolvency Act 1986 (winding up: preferential debt)—
The following shall be inserted in Part I of Schedule 4 to the Insolvency Act 1986 (c. 45) (liquidator’s powers in winding up: powers exercisable only with sanction) after paragraph 3—
The Secretary of State may by order provide for a provision of the Insolvency Act 1986 to apply (with or without modification) in relation to a company incorporated outside Great Britain.
An order under this section—
may make provision generally or for a specified purpose only,
may make different provision for different purposes, and
may make transitional, consequential or incidental provision.
An order under this section—
must be made by statutory instrument, and
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
The Treasury may with the concurrence of the Secretary of State by order provide for a company arrangement or administration provision to apply (with or without modification) in relation to—
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a society registered under section 7(1)(b), (c), (d), (e) or (f) of the Friendly Societies Act 1974 (c. 46),
a friendly society within the meaning of the Friendly Societies Act 1992 (c. 40), or
an unregistered friendly society.
In subsection (1) “company arrangement or administration provision” means—
a provision of Part I of the Insolvency Act 1986 (company voluntary arrangements),
a provision of Part II of that Act (administration), ...
Part 26 of the Companies Act 2006 (c. 6) (compromise or arrangement with creditors), and
Part 26A of that Act (compromise or arrangement with creditors where company in financial difficulty).
An order under this section may not provide for a company arrangement or administration provision to apply in relation to a society which is —
a private registered provider of social housing, or
registered as a social landlord under Part I of the Housing Act 1996 (c. 52) or under Part 2 of the Housing (Scotland) Act 2010 (asp 17) .
An order under this section—
may make provision generally or for a specified purpose only,
may make different provision for different purposes, and
may make transitional, consequential or incidental provision.
Provision by virtue of subsection (4)(c) may, in particular—
apply an enactment (with or without modification);
amend an enactment.
An order under this section—
must be made by statutory instrument, and
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
The following shall be substituted for section 279 of the Insolvency Act 1986 (c. 45) (duration of bankruptcy)—
Schedule 19 (which makes transitional provision in relation to this section)—
shall have effect, and
is without prejudice to the generality of section 276.
The following shall be inserted after section 281 of the Insolvency Act 1986 (c. 45) (bankruptcy: effect of discharge)—
The Schedule 4A set out in Schedule 20 to this Act shall be inserted after Schedule 4 to the Insolvency Act 1986.
The amendments set out in Schedule 21 (which specify the effect of a bankruptcy restrictions order or undertaking) shall have effect.
The following shall be substituted for section 289 of the Insolvency Act 1986 (official receiver’s duty to investigate)—
Section 310 of the Insolvency Act 1986 (income payments order) shall be amended as follows.
In subsection (1) omit “, on the application of the trustee,”.
After subsection (1) insert—
For subsection (6) substitute—
The following shall be inserted after section 310 of the Insolvency Act 1986 (c. 45) (income payments order)—
The following shall be inserted after section 283 of the Insolvency Act 1986 (definition of bankrupt’s estate)—
Section 313 of the Insolvency Act 1986 (c. 45) (charge on bankrupt’s home) shall be amended as follows—
in subsection (2) for “, up to the value from time to time of the property secured,” substitute “ , up to the charged value from time to time, ”,
after subsection (2) insert—, and
at the end insert—
The following shall be inserted after section 313 of that Act—
The following shall be inserted after section 307(2)(a) of the Insolvency Act 1986 (c. 45) (after-acquired property: exclusions)—.
section 313A;
section 313A (value of property below which application for sale, possession or charge to be dismissed);
In subsection (8)—
“pre-commencement bankrupt” means an individual who is adjudged bankrupt on a petition presented before subsection (1) above comes into force, and
“the transitional period” is the period of three years beginning with the date on which subsection (1) above comes into force.
If a pre-commencement bankrupt’s estate includes an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of him, his spouse or a former spouse of his, at the end of the transitional period that interest shall—
cease to be comprised in the estate, and
vest in the bankrupt (without conveyance, assignment or transfer).
But subsection (8) shall not apply if before or during the transitional period—
any of the events mentioned in section 283A(3) of the Insolvency Act 1986 (c. 45) (inserted by subsection (1) above) occurs in relation to the interest or the dwelling-house, or
the trustee obtains any order of a court, or makes any agreement with the bankrupt, in respect of the interest or the dwelling-house.
Subsections 283A(4) to (9) of that Act shall have effect, with any necessary modifications, in relation to the provision made by subsections (7) to (9) above; in particular—
a reference to the period mentioned in section 283A(2) shall be construed as a reference to the transitional period,
in the application of section 283A(5) a reference to the date of the bankruptcy shall be construed as a reference to the date on which subsection (1) above comes into force, and
a reference to the rules is a reference to rules made under section 412 of the Insolvency Act 1986 (for which purpose this section shall be treated as forming part of Parts VIII to XI of that Act).
The following shall be inserted in Part I of Schedule 5 to the Insolvency Act 1986 (powers of trustee in bankruptcy: powers exercisable only with sanction) after paragraph 2—
The following sections of the Insolvency Act 1986 shall cease to have effect—
section 361 (offence of failure to keep proper accounting records), and
section 362 (offence of gambling and speculation).
Schedule 22 (which makes provision about individual voluntary arrangements) shall have effect.
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must be made by statutory instrument, and
may not be made unless a draft has been laid before and approved by each House of Parliament.
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consequential provision (which may include provision amending the Insolvency Act 1986 or another enactment);
transitional provision.
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The following shall be inserted before section 427 of the Insolvency Act 1986 (c. 45) (the title to which becomes “ Disqualification from Parliament (Scotland and Northern Ireland) ”)—
In section 427 of the Insolvency Act 1986 the following shall cease to have effect—
in subsection (1), the words “England and Wales or”, and
subsection (7).
The Secretary of State may by order—
provide for section 426A or 426B of that Act (as inserted by subsection (1) above) to have effect in relation to orders made or undertakings accepted in Scotland or Northern Ireland under a system which appears to the Secretary of State to be equivalent to the system operating under Schedule 4A to that Act (as inserted by section 257 of this Act);
make consequential amendment of section 426A or 426B of that Act (as inserted by subsection (1) above);
make other consequential amendment of an enactment.
An order under this section may make transitional, consequential or incidental provision.
An order under this section—
must be made by statutory instrument, and
may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
The following shall be substituted for section 80(1)(b) of the Local Government Act 1972 (c. 70) (disqualification for membership of local authority: bankrupt)—.
Section 81(1) and (2) of that Act (which amplify the provision substituted by subsection (1) above) shall cease to have effect.
The Secretary of State may make an order under this section in relation to a disqualification provision.
A “disqualification provision” is a provision which disqualifies (whether permanently or temporarily and whether absolutely or conditionally) a bankrupt or a class of bankrupts from—
being elected or appointed to an office or position,
holding an office or position, or
becoming or remaining a member of a body or group.
In subsection (2) the reference to a provision which disqualifies a person conditionally includes a reference to a provision which enables him to be dismissed.
An order under subsection (1) may repeal or revoke the disqualification provision.
An order under subsection (1) may amend, or modify the effect of, the disqualification provision—
so as to reduce the class of bankrupts to whom the disqualification provision applies;
so as to extend the disqualification provision to some or all individuals who are subject to a bankruptcy restrictions regime;
so that the disqualification provision applies only to some or all individuals who are subject to a bankruptcy restrictions regime;
so as to make the application of the disqualification provision wholly or partly subject to the discretion of a specified person, body or group.
An order by virtue of subsection (5)(d) may provide for a discretion to be subject to—
the approval of a specified person or body;
appeal to a specified person or body.
An order by virtue of subsection (5)(d). . . may provide for a discretion to be subject to appeal to a specified court or tribunal ; but any such order must— .
if it relates to England and Wales, be made with the concurrence of the Lord Chief Justice of England and Wales;
if it relates to Northern Ireland, be made with the concurrence of the Lord Chief Justice of Northern Ireland
The Secretary of State may specify himself for the purposes of subsection (5)(d) or (6)(a) or (b).
In this section “bankrupt” means an individual—
who has been made bankrupt (under Part 9 of the Insolvency Act 1986),
whose estate has been sequestrated by a court in Scotland, or
who has been adjudged bankrupt by a court in Northern Ireland,
who has made an agreement with creditors of his for a composition of debts, for a scheme of arrangement of affairs, for the grant of a trust deed or for some other kind of settlement or arrangement.
In this section “bankruptcy restrictions regime” means an order or undertaking—
under Schedule 4A to the Insolvency Act 1986 (c. 45) (bankruptcy restrictions orders), or
under any system operating in Scotland or Northern Ireland which appears to the Secretary of State to be equivalent to the system operating under that Schedule.
In this section—
any market which operates only in a part of the United Kingdom;
Section 36 of the Coal Industry Act 1994 (insolvency of licensed operator) shall be amended as follows. After subsection (2) insert— In subsection (3)—
An order under this section—
may make provision generally or for a specified purpose only,
may make different provision for different purposes, and
may make transitional, consequential or incidental provision.
An order under this section—
must be made by statutory instrument, and
may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
A reference in this section to the Secretary of State shall be treated as a reference to the National Assembly for Wales in so far as it relates to a disqualification provision which—
is made by the National Assembly for Wales, or
relates to a function of the National Assembly.
Provision made by virtue of subsection (7) is subject to any order of the Lord Chancellor under section 56(1) of the Access to Justice Act 1999 (c. 22) (appeals: jurisdiction).
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (7).
The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (7)—
the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
a Lord Justice of Appeal (as defined in section 88 of that Act).
Schedule 23 (minor and consequential amendments relating to individual insolvency) shall have effect.
The following shall be inserted after section 415 of the Insolvency Act 1986 (c. 45) (fees orders: individual insolvency)—
An order made by virtue of subsection (1) may relate to the maintenance of recognition or authorisation granted before this section comes into force.
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In section 440(2)(c) of that Act (provisions not extending to Scotland) after “415,” there shall be inserted “ 415A(3), ”.
The following shall be inserted after paragraph 16 of Schedule 8 to the Insolvency Act 1986 (company insolvency rules: money)—
The following shall be inserted after paragraph 21 of Schedule 9 to the Insolvency Act 1986 (individual insolvency rules: money)—
Section 405 of the Insolvency Act 1986 (operation of Investment Account) shall cease to have effect.
The following shall be substituted for section 408 of that Act (recourse to Consolidated Fund)—
In this Act—
“market in the United Kingdom” includes—
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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. 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.
For article 18 of the Electricity (Northern Ireland) Order 1992 (modification of licence conditions by order) there shall be substituted—
The Companies Act 1989 shall be amended as follows.
The Housing Act 1996 shall be amended as follows.
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An order may require any activities to be carried on separately from any other activities.
In section 158 (modification of insolvency law)—
in subsection (3) for paragraph (b) substitute—, and
after subsection (3) insert—
At the end of section 40 (initial notice to be given to Housing Corporation or Housing for Wales) add—
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In section 161(4) (disapplication of enactments to default proceedings) for “sections 10(1)(c), 11(3), 126, 128, 130, 185 or 285 of the Insolvency Act 1986” substitute “ section 126, 128, 130, 185 or 285 of, or paragraph 42 or 43 (including paragraph 43(6) as applied by paragraph 44) of Schedule B1 to, the Insolvency Act 1986 ”.
At the end of section 41 (further notice to be given to Housing Corporation or Housing for Wales) add—
After section 167(1) (application by exchange or clearing house about taking default proceedings) insert—
Section 175 (financial markets: administration) shall be amended as follows. For subsection (1) substitute— In subsection (2) for “an administration order has been made or a petition for an administration order has been presented” substitute “ the occurrence of an event to which subsection (2A) applies ”. After subsection (2) insert—
The Secretary of State may give financial assistance to any person for the purpose of assisting—
activities which the Secretary of State considers are of benefit to consumers; or
the provision of—
advice or information about consumer matters;
educational materials relating to consumer matters; or
advice or information to the Secretary of State in connection with the formulation of policy in respect of consumer matters.
There shall be paid out of money provided by Parliament—
any expenditure incurred by the OFT, the Secretary of State, any other Minister of the Crown or a government department by virtue of this Act; and
any increase attributable to this Act in the sums payable out of money so provided by virtue of any other Act.
Schedule 24 (which makes transitional and transitory provisions and savings) has effect.
The Secretary of State may by order made by statutory instrument make such transitional or transitory provisions and savings as he considers appropriate in connection with the coming into force of any provision of this Act.
An order under subsection (2) may modify any Act or subordinate legislation.
Schedule 24 does not restrict the power under subsection (2) to make other transitional or transitory provisions and savings.
The Secretary of State may by order make such supplementary, incidental or consequential provision as he thinks appropriate—
for the general purposes, or any particular purpose, of this Act; or
in consequence of any provision made by or under this Act or for giving full effect to it.
An order under this section may—
modify any Act or subordinate legislation (including this Act);
make incidental, supplementary, consequential, transitional, transitory or saving provision.
The power to make an order under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
The power conferred by this section is not restricted by any other provision of this Act.
Schedule 25 (which contains minor and consequential amendments) has effect.
Schedule 26 (which contains repeals and revocations) has effect.
The preceding provisions of this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.
Sections 256 to 265, 267, 269 and 272 extend only to England and Wales.
Sections 204, 248 to 255 and 270 extend only to England and Wales and Scotland (but subsection (3) of section 415A as inserted by section 270 extends only to England and Wales).
Any other modifications by this Act of an enactment have the same extent as the enactment being modified.
Otherwise, this Act extends to England and Wales, Scotland and Northern Ireland.
This Act may be cited as the Enterprise Act 2002.
Section 68F
Chapter 1 (other than sections 22 and 33) has effect as if— The references in sub-paragraph (1) to a reference under a section include —
Section 22(7)(a) (meaning of “the decision-making authority”) has effect as if after “section 33” there were inserted “, 68B or 68C”.
Section 23 (relevant merger situations) has effect as if—
in subsection (1), for paragraph (b) there were substituted—;
subsections (2) to (8) were omitted.
Section 28 (turnover test) has effect as if—
references to the United Kingdom were to Great Britain;
in subsection (5)—
in the words before paragraph (a), for “The CMA shall” there were substituted “The CMA and the Gas and Electricity Markets Authority must each”;
in paragraph (a), for “the sums for the time being mentioned in section 23(1)(b), (2)(c) and (4E)” there were substituted “the sum for the time being mentioned in section 23(1)(b)”;
in paragraph (b), for “sums are” there were substituted “sum is”;
in subsection (6)—
for “section 23(1)(b), (2)(c) and (4E)” there were substituted “paragraph 2(a) of Schedule 5A”;
for “sums” there were substituted “sum”.
Section 30 (relevant customer benefits) has effect as if—
in subsection (1)(a)(i), for “lessening of competition concerned” there were substituted “prejudice to the Gas and Electricity Markets Authority”;
in subsections (2)(b) and (3)(b), for “a similar lessening of competition” there were substituted “a similar prejudice to the Gas and Electricity Markets Authority”.
Section 34ZA (time-limits for decisions about references) has effect as if—
in subsection (1)(a)—
the reference to section 22(2) were to section 68B(2);
the reference to section 22(3) were to section 68B(3);
the reference to section 33(2) were to section 68C(2);
the reference to section 33(3) were to section 68C(3);
section (1A) were omitted.
Chapter 1 has effect as if sections 34ZD to 34ZF (fast-track reference requests) were omitted.
Section 35 (questions to be decided in relation to completed mergers) has effect as if—
in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;
in subsection (1)(b), for the words from “has resulted” to the end there were substituted “has caused, or may be expected to cause, substantial prejudice to the ability of the Gas and Electricity Markets Authority to make comparisons between energy network enterprises of the type involved in the energy network merger”;
for subsection (2) there were substituted—;
in subsection (3), for “an anti-competitive outcome (within the meaning given by subsection (2)(a))” there were substituted “a prejudicial outcome”;
in subsections (3)(a) and (b) and (4), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.
Section 36 (questions to be decided in relation to anticipated mergers) has effect as if—
in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;
in subsection (1)(b), for the words from “result” to the end there were substituted “cause substantial prejudice to the ability of the Gas and Electricity Markets Authority to make comparisons between energy network enterprises of the type involved in the energy network merger”;
after subsection (1) there were inserted—;
in subsection (2), for “an anti-competitive outcome (within the meaning given by section 35(2)(b))” there were substituted “a prejudicial outcome”;
in subsections (2)(a) and (b) and (3), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.
Section 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.
Section 41 (duty to remedy effects of completed or anticipated mergers) has effect as if—
in subsection (1), for “an anti-competitive outcome” there were substituted “a prejudicial outcome (within the meaning of section 35(2) or 36(1A))”;
in subsection (2)(a) and (b), for “lessening of competition” there were substituted “prejudice”;
in subsection (4), for “lessening of competition” there were substituted “prejudice”.
Section 70A
Sections 23 to 29 apply for the purposes of Chapter 3A of Part 1, subject to the following modifications. Section 23 is to be read as if— Section 24 is to be read as if— Section 25 is to be read as if— Section 26 is to be read as if— Section 27 is to be read as if— Section 28 is to be read as if, in subsection (4), the reference to the “decision-making authority” were to “the CMA or the Secretary of State”. Section 29 is to be read as if—
The Enterprise Act 2002 (Anticipated Mergers) Order 2003 applies for the purposes of Chapter 3A of Part 1, subject to the following modifications. In Article 3, the words before paragraph (a) are to be read as if, for “in relation to references and notices”, there were substituted “for the purposes of Chapter 3A of Part 1 of the Act”. Article 3(a) is to be read as if— Article 3(b) is to be read as if—
Section 70A
A foreign power is able to control or influence the policy of a person for the purposes of section 70A if one or more of the following conditions is met. Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person. Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person. Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person. Condition 4 is that the foreign power has the right or ability to direct, control or influence to any extent, the person’s policy or activities (in whole or in part, and whether directly or indirectly), despite not meeting condition 1, 2 or 3. Condition 5 is that— This paragraph is subject to Part 1A.
In this Schedule, “officer”—
in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;
in relation to a partnership, means a partner, a person purporting to act as a partner or a person concerned in the management or control of the partnership or who purports to act in the capacity of a person so concerned;
in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.
This Part applies where a foreign power would (apart from this Part of this Schedule) be able to control or influence the policy of a person (a “newspaper owner”) carrying on a newspaper enterprise for the purposes of section 70A by virtue of condition 1 or condition 2 in paragraph 1 (respectively, “the shares condition” and “the voting rights condition”).
A foreign power (“the main foreign power”) is not able to control or influence the policy of a newspaper owner by virtue of the shares condition or the voting rights condition where— The condition is that, before the end of the period of 14 days beginning with the acquisition date, the state owned investor— For the purposes of sub-paragraph (1A)— The information is— For the purposes of sub-paragraph (1)(c), holdings of a state owned investor acting on behalf of a foreign power of a country or territory other than the country or territory of the main foreign power are to be ignored where they comprise no more than 5% of the shares or voting rights in a quoted company within the meaning given by section 385(2) of the Companies Act 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
For the purposes of paragraph 2B, a person is a state owned investor acting on behalf of a foreign power where— Condition 1 is that the foreign power holds, directly or indirectly— Condition 2 is that— The requirements are that the trustees or members— Condition 3 is that— Condition 4 is that the principal source of the funds for the overseas investments is the foreign power or another foreign power of the same country or territory as the foreign power. Condition 5 is that the sole purpose of the overseas investments is to benefit—
A foreign power is not able to control or influence the policy of a newspaper owner by virtue of the shares condition or the voting rights condition where— A foreign power is not able to control or influence the policy of a newspaper owner by virtue of the shares condition where— For the purposes of sub-paragraph (2)(b)—
This Part makes provision about the interpretation of this Schedule.
If a foreign power holds a share or right jointly with another person (whether or not a foreign power), each of those persons is to be taken to hold that share or right.
If shares or rights held by a foreign power and shares or rights held by another person (whether or not a foreign power) are the subject of a joint arrangement between those persons, each of those persons is to be taken to hold the combined shares or rights of both persons. A “joint arrangement” is an arrangement between the holders of shares (or rights) that they will exercise all or substantially all the rights conferred by their respective shares (or rights) jointly in a way that is pre-determined by the arrangement. For the meaning of “arrangement”, see paragraph 12.
In relation to a person that has a share capital, a reference to holding any of the shares in that person is to holding any shares comprised in the issued share capital of that person. In relation to a person that does not have a share capital, a reference to holding any of the shares in that person is to holding a right to share to any extent in the capital or, as the case may be, profits of that person.
A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters. In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights, a reference to exercising voting rights in the person is to be read as a reference to exercising rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company.
In applying this Schedule, voting rights in a person held by the person itself are to be disregarded.
A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person— A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person— For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if—
A share held by a person as a nominee for another is to be treated as held by the other (and not by the nominee).
Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it). A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—
For the purposes of this Schedule, “arrangement” includes— But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).
Rights that are exercisable only in certain circumstances are to be taken into account only— But rights that are exercisable by an administrator or by creditors while a person is in relevant insolvency proceedings are not to be taken into account even while the person is in those proceedings. “Relevant insolvency proceedings” means— Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.
Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person—
where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and
where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.
The Secretary of State may by regulations make provision— The provision that may be made under this paragraph, read with section 124(2)(a), includes— Regulations under this paragraph may, among other things—