Enterprise Act 2002

2002 c. 40

An Act to establish and provide for the functions of the Office of Fair Trading, the Competition Appeal Tribunal and the Competition Service; to make provision about mergers and market structures and conduct; to amend the constitution and functions of the Competition Commission; to create an offence for those entering into certain anti-competitive agreements; to provide for the disqualification of directors of companies engaging in certain anti-competitive practices; to make other provision about competition law; to amend the law relating to the protection of the collective interests of consumers; to make further provision about the disclosure of information obtained under competition and consumer legislation; to amend the Insolvency Act 1986 and make other provision about insolvency; and for connected purposes.

Enacted [7th November 2002]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—^C477

^C368Part 1 General functions of the CMA¶

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^F6242 The Director General of Fair Trading¶

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^F6243 Annual plan¶

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^F6244 Annual and other reports¶

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General functions of the CMA ¶

5 Acquisition of information etc.¶

1 The CMA has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.

2 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.

3 In carrying out that function the CMA may carry out, commission or support (financially or otherwise) research.

6 Provision of information etc. to the public¶

1 The CMA has the function of—

a making the public aware of the ways in which competition may benefit consumers in, and the economy of, the United Kingdom; and

^C410b giving information or advice in respect of matters relating to any of its functions to the public.

2 In carrying out those functions the CMA may—

a publish educational materials or carry out other educational activities; or

b support (financially or otherwise) the carrying out by others of such activities or the provision by others of information or advice.

^C4357 Provision of information and advice to Ministers etc.¶

1 The CMA has the function of—

a making proposals, or

b giving other information or advice,

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).

1A 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.

1B 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.

2 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.

3 In this section—

“market in the United Kingdom” includes—
1. 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
2. any market which operates only in a part of the United Kingdom;
and the reference to a market for goods or services includes a reference to a market for goods and services; and
“Westminster legislation” means—
1. an Act of Parliament, or
2. subordinate legislation (within the meaning given by section 21 of the Interpretation Act 1978).

^F2668 Promoting good consumer practice¶

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8A Exclusion of public consumer advice scheme¶

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.

Miscellaneous¶

9 Repeal of certain powers of direction¶

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.

10 Part 2 of the 1973 Act¶

1 The following provisions of the 1973 Act shall cease to have effect—

a section 3 and Schedule 2 (which establish, and make provision with respect to, the Consumer Protection Advisory Committee);

b sections 13 to 21 (which relate to references made to, and reports of, that Committee); and

c section 22 (power of Secretary of State to make orders in pursuance of a report of that Committee).

^F16002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—

a repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and

b make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.

4 An order under subsection (3)—

a may make transitional or saving provision in connection with any modification made by the order; and

b shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

^C27911 Super-complaints to OFT¶

1 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.

2 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—

a whether it has decided to take any action, or to take no action, in response to the complaint, and

b if it has decided to take action, what action it proposes to take.

3 The response must state the CMA's reasons for its proposals.

4 The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.

5 “Designated consumer body” means a body designated by the Secretary of State by order.

6 The Secretary of State—

a may designate a body only if it appears to him to represent the interests of consumers of any description, and

b 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.

7 The CMA —

a must issue guidance as to the presentation by the complainant of a reasoned case for the complaint, and

b may issue such other guidance as appears to it to be appropriate for the purposes of this section.

8 An order under this section—

a shall be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

9 In this section—

a 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

b “consumer” means an individual who is a consumer within the meaning of that Part.

Part 2 The Competition Appeal Tribunal¶

The Competition Appeal Tribunal¶

12 The Competition Appeal Tribunal¶

1 There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).

2 The Tribunal shall consist of—

a a person appointed by the Lord Chancellor to preside over the Tribunal (in this Part referred to as “the President”);

aa 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;

ab 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;

ac such judges as are nominated from time to time by the Lord Chief Justice of Northern Ireland from the High Court in Northern Ireland;

b members appointed by the Lord Chancellor to form a panel of chairmen; and

c members appointed by the Secretary of State to form a panel of ordinary members.

3 The Tribunal shall have a Registrar appointed by the Secretary of State.

4 The expenses of the Tribunal shall be paid by the Competition Service.

5 Schedule 2 (which makes further provision about the Tribunal) has effect.

^I113 The Competition Service¶

1 There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).

2 The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.

3 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.

4 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).

5 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.

6 Schedule 3 (which makes further provision about the Service) has effect.

^I2^C35614 Constitution of Tribunal for particular proceedings and its decisions¶

1 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.

1A 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.

2 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.

3 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.

4 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.

5 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).

6 Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.

^C36615 Tribunal rules¶

1 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.

2 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.

3 Tribunal rules may—

a specify qualifications for appointment as Registrar;

b confer functions on the President or the Registrar in relation to proceedings before the Tribunal; and

c contain incidental, supplemental, consequential or transitional provision.

4 The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

5 Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).

16 Transfers of certain proceedings to and from Tribunal¶

1 The Lord Chancellor may by regulations—

a make provision enabling the court—

i to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and

ii to give effect to the determination of that issue by the Tribunal; and

b make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.

2 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.

3 Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).

4 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.

5 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.

6 In this section—

“the court” means—
1. the High Court or the county court; or
2. the Court of Session or a sheriff court; and
“infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition has been or is being committed;

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.

Proceedings under Part 1 of 1998 Act¶

17 Third party appeals¶

For section 47 of the 1998 Act (third party appeals) there is substituted—

18 Monetary claims¶

1 After section 47 of the 1998 Act there is inserted—

47A Monetary claims before Tribunal

1 This section applies to—

a any claim for damages, or3

b any other claim for a sum of money,

which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

2 In this section “relevant prohibition” means any of the following—

a the Chapter I prohibition;

b the Chapter II prohibition;

c the prohibition in Article 81(1) of the Treaty;

d the prohibition in Article 82 of the Treaty;

e the prohibition in Article 65(1) of the Treaty establishing the European Union ;

f the prohibition in Article 66(7) of that Treaty.

3 For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.

4 A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.

5 But no claim may be made in such proceedings—

a until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and

b otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.

6 The decisions which may be relied on for the purposes of proceedings under this section are —

a a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

b a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

c a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

d a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or

e a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Union has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.

7 The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—

a in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

b in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;

c in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

d in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.

8 The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—

a the period during which proceedings against the decision or finding may be instituted in the European Court; and

b if any such proceedings are instituted, the period before those proceedings are determined.

9 In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.

10 The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.

2 Section 47A applies to claims arising before the commencement of this section as it applies to claims arising after that time.

19 Claims on behalf of consumers¶

After section 47A of the 1998 Act (which is inserted by section 18), there is inserted—

47B Claims brought on behalf of consumers

1 A specified body may (subject to the provisions of this Act and Tribunal rules) bring proceedings before the Tribunal which comprise consumer claims made or continued on behalf of at least two individuals.

2 In this section “consumer claim” means a claim to which section 47A applies which an individual has in respect of an infringement affecting (directly or indirectly) goods or services to which subsection (7) applies.

3 A consumer claim may be included in proceedings under this section if it is—

a a claim made in the proceedings on behalf of the individual concerned by the specified body; or

b a claim made by the individual concerned under section 47A which is continued in the proceedings on his behalf by the specified body;

and such a claim may only be made or continued in the proceedings with the consent of the individual concerned.

4 The consumer claims included in proceedings under this section must all relate to the same infringement.

5 The provisions of section 47A(5) to (10) apply to a consumer claim included in proceedings under this section as they apply to a claim made in proceedings under that section.

6 Any damages or other sum (not being costs or expenses) awarded in respect of a consumer claim included in proceedings under this section must be awarded to the individual concerned; but the Tribunal may, with the consent of the specified body and the individual, order that the sum awarded must be paid to the specified body (acting on behalf of the individual).

7 This subsection applies to goods or services which—

a the individual received, or sought to receive, otherwise than in the course of a business carried on by him (notwithstanding that he received or sought to receive them with a view to carrying on a business); and

b were, or would have been, supplied to the individual (in the case of goods whether by way of sale or otherwise) in the course of a business carried on by the person who supplied or would have supplied them.

8 A business includes—

a a professional practice;

b any other undertaking carried on for gain or reward;

c any undertaking in the course of which goods or services are supplied otherwise than free of charge.

9 “Specified” means specified in an order made by the Secretary of State, in accordance with criteria to be published by the Secretary of State for the purposes of this section.

10 An application by a body to be specified in an order under this section is to be made in a form approved by the Secretary of State for the purpose.

Other amendments of 1998 Act¶

20 Findings of infringements¶

1 After section 58 of the 1998 Act there is inserted—

Findings of infringements

58A Findings of infringements

1 This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—

a the Chapter I prohibition;

b the Chapter II prohibition;

c the prohibition in Article 81(1) of the Treaty;

d the prohibition in Article 82 of the Treaty.

2 In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.

3 The decisions are—

a a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

b a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

c a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.

4 The periods mentioned in subsection (2) are—

a in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

b in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

c in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.

2 Section 58A does not apply in relation to decisions made before the commencement of this section.

3 In section 59(1) of that Act (interpretation), in the definition of “the court”, after “58” there is inserted “ , 58A ”.

21 Amendment of 1998 Act relating to the Tribunal¶

Schedule 5 (which contains amendments of the 1998 Act relating to, and to the proceedings of, the Tribunal) has effect.

^C273^C536^C534^C535^C531^C363^C525^C466^C386^C480^C468^C471^C488Part 3 Mergers¶

^C466^C386Chapter 1 Duty to make references¶

Duty to make references: completed mergers¶

22 ^C466^C386 Duty to make references in relation to completed mergers¶

1 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 a relevant merger situation has been created; and

b the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.

1A 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.

2 The CMA may decide not to make a reference under subsection (1) if it believes that—

a the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ^F1434...; or

b 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.

3 No reference shall be made under subsection (1) if—

za 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;

a the making of the reference is prevented by section ^F1. . . 74(1) ^F1596... or paragraph 4 of Schedule 7;

b the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;

c the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 33 ^F1265...; or

d 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

^F718e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F502f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4 A reference under this section shall, in particular, specify—

a the enactment under which it is made; and

b the date on which it is made.

5 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).

6 In this Part “market in the United Kingdom” includes—

a 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

b any market which operates only in a part of the United Kingdom;

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

7 In this Part “the decision-making authority” means—

a in the case of a reference or possible reference under this section or section 33 ^F775..., the CMA; and

b 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.

^C47623 ^C466^C386^C280 Relevant merger situations¶

1 For the purposes of this Part, a relevant merger situation has been created if—

a two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

b the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £100 million.

2 For the purposes of this Part, a relevant merger situation has also been created if—

a two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; ^F1194...

b as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent ; and

c the value of the turnover in the United Kingdom of—

i the enterprise being taken over, or

ii any other enterprise concerned,

exceeds £10 million.

^F10132A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2B 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.

3 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—

a are supplied by one and the same person or are supplied to one and the same person; or

b are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.

4 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—

a supply by one and the same person, or supply for one and the same person; or

b supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.

^F13004A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2424B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4C For the purposes of this Part, a relevant merger situation has also been created if—

a two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

b each of the conditions mentioned in subsections (4D) to (4F) is satisfied.

4D 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—

a by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or

b to that person or those persons,

in connection with E or any other enterprise concerned with which E is under common ownership or common control.

4E The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million.

4F 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—

a 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;

b the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom;

c 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.

4G The following enterprises are within this subsection—

a any enterprise concerned other than—

i E, or

ii any other enterprise with which E is under common ownership or common control;

b 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).

5 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.

6 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—

a as references to any of those forms of supply taken separately;

b as references to all those forms of supply taken together; or

c as references to any of those forms of supply taken in groups.

7 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—

a the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

b 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.

8 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.

9 ^C513For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—

a 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

b in any other case, immediately before the time when the reference has been, or is to be, made.

^F161810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F78923A Relevant enterprises¶

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^C476^C388^C38624 ^C466^C386^C281 Time-limits and prior notice¶

1 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—

a 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

b 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).

2 Notice of material facts is given in accordance with this subsection if—

a 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

b 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.

3 In this section—

“made public” means so publicised as to be generally known or readily ascertainable; and
“notice” includes notice which is not in writing.

^C47625 ^C466^C386^C282 Extension of time-limits¶

1 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).

2 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.

3 An extension under subsection (2) shall come into force when notice of the extension is given and end—

a 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

b if earlier, the CMA cancels the extension.

4 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.

5 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—

a the giving of the undertakings concerned;

b 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

c the cancellation by the CMA of the extension.

^F12756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C3549 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).

10 Subsection (11) applies where—

a the four month period mentioned in section 24(1)(a) or (2)(b) is further extended;

b the further extension and at least one previous extension is made under one or more of subsections (2) and (4); and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

11 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.

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

^C532^C355^C41826 Enterprises ceasing to be distinct enterprises¶

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).

^C422^C4612 Enterprises shall, in particular, be treated as being under common control if they are—

a enterprises of interconnected bodies corporate;

b enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or

c 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.

^C422^C4613 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.

^C422^C4614 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—

a 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

b 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.

^C287^C47627 ^C466^C386^C283 Time when enterprises cease to be distinct¶

1 Subsection (2) applies in relation to any arrangements or transaction—

a not having immediate effect or having immediate effect only in part; but

b under or in consequence of which any two enterprises cease to be distinct enterprises.

2 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.

3 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.

4 Subsections (1) to (3) are subject to subsections (5) to (8) and section 29.

5 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.

6 Subsection (5) applies to successive events—

a 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

b 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.

7 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.

8 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.

28 ^C466^C386^C284 Turnover test¶

1 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—

a the turnover in the United Kingdom of any enterprise which continues to be carried on under the same ownership and control; or

b 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.

2 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.

3 An order under subsection (2) may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;

b the date or dates by reference to which an enterprise’s turnover is to be determined;

c the connection with the United Kingdom by virtue of which an enterprise’s turnover is turnover in the United Kingdom.

4 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)).

5 The CMA shall—

a keep under review the sums for the time being mentioned in section 23(1)(b) , (2)(c) and (4E); and

b from time to time advise the Secretary of State as to whether the sums are still appropriate.

6 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.

^C288^C47629 ^C466^C386^C285 Obtaining control by stages¶

1 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.

2 This subsection applies to—

a any transaction which—

i 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;

ii enables that person or group of persons to do so to a greater degree; or

iii is a step (whether direct or indirect) towards enabling that person or group of persons to do so; and

b 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.

3 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).

4 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.

5 Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of this section to determine—

a whether an enterprise is brought under the control of a person or group of persons; and

b whether a transaction is one to which subsection (2) applies;

as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.

6 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.

^C47630 ^C466^C386^C286 Relevant customer benefits¶

1 For the purposes of this Part a benefit is a relevant customer benefit if—

a it is a benefit to relevant customers in the form of—

i lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets in which the substantial lessening of competition concerned has, or may have, occurred or (as the case may be) may occur); or

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

b the decision-making authority believes—

i in the case of a reference or possible reference under section 22 or 45(2), as mentioned in subsection (2); and

ii in the case of a reference or possible reference under section 33 or 45(4), as mentioned in subsection (3).

2 The belief, in the case of a reference or possible reference under section 22 or section 45(2), is that—

a 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

b the benefit was, or is, unlikely to accrue without the creation of that situation or a similar lessening of competition.

3 The belief, in the case of a reference or possible reference under section 33 or 45(4), is that—

a the benefit may be expected to accrue within a reasonable period as a result of the creation of the relevant merger situation concerned; and

b the benefit is unlikely to accrue without the creation of that situation or a similar lessening of competition.

4 In subsection (1) “relevant customers” means—

a 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;

b customers of such customers; and

c any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);

and in this subsection “customers” includes future customers.

^F154931 ^C386 Information powers in relation to completed mergers¶

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

^F95432 Supplementary provision for purposes of section 25¶

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

Duty to make references: anticipated mergers¶

33 ^C466^C386 Duty to make references in relation to anticipated mergers¶

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

b the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.

2 The CMA may decide not to make a reference under subsection (1) if it believes that—

a the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ^F951...;

b the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference ^F1003...; or

c 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.

3 No reference shall be made under subsection (1) if—

za 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;

a the making of the reference is prevented by section ^F2. . . 74(1) ^F826... or paragraph 4 of Schedule 7;

b the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;

c the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22 ^F499...; or

^F1110e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F213f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9463A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 A reference under this section shall, in particular, specify—

a the enactment under which it is made; and

b the date on which it is made.

34 ^C466^C386 Supplementary provision in relation to anticipated mergers¶

1 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—

a references under this Part which relate to arrangements which are in progress or in contemplation; or

b notices under section 42(2) or 59(2) which relate to such arrangements.

2 An order under subsection (1) may, in particular—

a 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;

b enable particular descriptions of events, arrangements or transactions which have already occurred—

i 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;

ii 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.

^C46634ZA ^C466^C386Time-limits for decisions about references¶

^C4891 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—

a 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

b inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.

1A 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.

2 Nothing in this section prevents the CMA from making a reference under section 22(1) or 33(1) in the event that—

a it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but

b no such undertakings are offered or accepted.

3 In this section—

“the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with—
1. where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and
2. in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference;
^F1306...

4 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—

a arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or

b the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.

^F13875 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C46634ZB ^C466^C386Extension of time-limits¶

1 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.

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

a any person carrying on any of the enterprises concerned;

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

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

3 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.

4 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.

^F3865 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 An extension under subsection (1) or (4) comes into force when published under section 107.

7 An extension under subsection (1) continues in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

^F16238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C46634ZC ^C466^C386Sections 34ZA and 34ZB: supplementary¶

1 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.

2 No more than one extension is possible under section 34ZB(4).

3 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).

4 Subsection (5) applies where—

a the period mentioned in section 34ZA(1) is further extended;

b the further extension and at least one previous extension is made under subsection (1) of section 34ZB; and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

5 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.

6 The Secretary of State may by order do either or both of the following—

a 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;

b 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.

7 But no alteration may be made by virtue of subsection (6) which results in—

a the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or

b the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.

8 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.

^F6449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34ZD Fast-track reference requests¶

1 Subsection (2) applies where the following conditions are met—

a arrangements or proposed arrangements might have resulted or might result in the creation of a relevant merger situation (the “arrangements concerned”),

b no reference has been made under section 22 or 33 in respect of the arrangements concerned, and

c 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.

2 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).

3 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.

34ZE Fast-track reference requests: procedure¶

1 This section applies where a fast-track reference request is made and not withdrawn.

2 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.

3 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.

4 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.

5 In this section—

“decision period” means, in relation to the arrangements concerned—
1. in a case where the initial period has not begun, that period, or
2. in a case where the initial period has begun, the period beginning with the day on which the fast-track reference request is made and ending at the end of the initial period;
“initial period” has the meaning given by section 34ZA(3).

34ZF Acceptance by the CMA of fast-track reference requests¶

1 The CMA may accept a fast-track reference request only if the condition in subsection (2) or (3) is met.

2 The condition in this subsection is that, in relation to the arrangements concerned—

a the CMA believes that it is or may be the case that a relevant merger situation has been created, and

b the CMA would not be prevented from making a reference under section 22(1) by reason of section 22(3).

3 The condition in this subsection is that, in relation to the arrangements concerned—

a 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

b the CMA would not be prevented from making a reference under section 33(1) by reason of section 33(3).

4 In deciding whether to accept a fast-track reference request under subsection (2) or (3), the CMA must have regard, in particular, to—

a whether the arrangements concerned raise any consideration specified in section 58;

b whether a special intervention notice (see section 59(2)) is in force in relation to the arrangements.

5 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)).

^F650...¶

^F65034A Duty of CMA where case referred by the European Commission¶

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

^F87334B Power to request information in referred cases¶

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

Determination of references¶

34C ^C527Functions to be exercised by CMA groups¶

1 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—

a sections 35 to 41B, except for sections 35(6) and (7), 36(5) and (6) and 37(6);

b where a reference is treated by virtue of section 37(2) as having been made under section 22, section 23(9)(a);

c section 76, as it applies in relation to orders under section 83, and sections 77, 78 and 80 to 84;

d section 87, so far as relating to an enforcement order made on behalf of the CMA by the group;

e 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;

f 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;

g section 107, so far as relating to anything done on behalf of the CMA by the group;

h 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;

i sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

j section 120(5)(b), so far as relating to a decision of the group;

k 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.

2 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.

3 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—

a 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;

b section 83 and Schedule 10, so far as relating to the making of an order under section 83;

c 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;

d section 87;

e sections 92(4) , 94 and 94AA.

^C4435 ^C466 Questions to be decided in relation to completed mergers¶

1 Subject to subsections (6) and (7) and section 127(3), the CMA shall, on a reference under section 22, decide the following questions—

a whether a relevant merger situation has been created; and

b 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.

2 For the purposes of this Part there is an anti-competitive outcome if—

a 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

b 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.

3 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—

a 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;

b 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

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

4 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.

5 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.

6 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—

a subsection (1) of section 23;

b subsection (2) of that section; or

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

7 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.

^C4536 ^C466 Questions to be decided in relation to anticipated mergers¶

1 Subject to subsections (5) and (6) and section 127(3), the CMA shall, on a reference under section 33, decide the following questions—

a whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and

b 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.

2 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—

^C289a 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;

^C289b 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

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

3 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.

4 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.

5 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—

a subsection (1) of section 23;

b subsection (2) of that section; or

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

6 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.

37 ^C466 Cancellation and variation of references under section 22 or 33¶

1 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.

2 The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under 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.

3 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.

4 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.

5 The undertaking or order shall, so far as applicable, continue in force as if—

a 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

b 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;

and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.

6 The CMA may at any time vary a reference under section 22 or 33.

^F16117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 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.

38 ^C466 Investigations and reports on references under section 22 or 33¶

1 The CMA shall prepare and publish a report on a reference under section 22 or 33 within the period permitted by section 39.

2 The report shall, in particular, contain—

a the decisions of the CMA on the questions which it is required to answer by virtue of section 35 or (as the case may be) 36;

b its reasons for its decisions; and

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

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

^F6944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 ^C466 Time-limits for investigations and reports¶

1 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.

2 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—

a within the period of 24 weeks beginning with the date of the reference; or

b if it is a shorter period, within such period as is necessary to ensure compliance with that article.

2A Where the CMA and the persons carrying on the enterprises concerned agree—

a that the period within which a report under section 38 is to be prepared and published (the “original period”) should be extended, and

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

the CMA may extend the original period by the extension period.

3 The CMA may extend, by no more than 8 weeks, the period within which a report under section 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.

3A 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.

4 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.

5 In this section “relevant person” means—

a any person carrying on any of the enterprises concerned;

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

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

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

7 An extension under subsection (2A), (3) , (3A) or (4) shall come into force when published under section 107.

7A An extension under subsection (2A) continues in force until—

a the end of the extension period, or

b an earlier time if, before the end of that period—

i the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time, and

ii the CMA publishes its decision to cancel the extension with effect from that time.

8 An extension under subsection (4) shall continue in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

8A 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 a relevant person has so requested before the end of the period of 3 weeks beginning with the date of the reference concerned; and

b the CMA reasonably believes that the arrangements in question might be abandoned.

8B If the CMA exercises the power under subsection (8A), the CMA shall publish a notice to that effect.

9 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.

10 This section is subject to section 40.

40 ^C466 Section 39: supplementary¶

1 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.

2 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.

3 A period extended under any subsection of section 39 may also be extended under any other subsection of that section.

4 No more than one extension is possible under section 39(3) or (3A).

5 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).

6 Subsection (7) applies where—

a the period within which the report under section 38 is to be prepared and published is further extended;

b the further extension and at least one previous extension is made under section 39(4); and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

7 In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.

8 The Secretary of State may by order amend section 39 so as to alter any one or more of the following periods—

a the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;

b the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;

c the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.

9 No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) or (2)(a) of section 39 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.

10 An order under subsection (8) shall not affect any period of time within which the CMA is under a duty to prepare and 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.

11 Before making an order under subsection (8) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.

12 The Secretary of State may make regulations for the purposes of section 39(8).

13 The regulations may, in particular—

a provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the CMA for the purposes of section 39(8));

b provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the CMA for the purposes of section 39(8));

c provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the fact that—

i the CMA is satisfied as to the provision of the information or documents required by it; or

ii the person concerned has appeared as a witness in accordance with the requirements of the CMA;

d provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 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.

41 ^C466 Duty to remedy effects of completed or anticipated mergers¶

1 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.

2 The CMA shall take such action under section 82 or 84 as it considers to be reasonable and practicable—

a to remedy, mitigate or prevent the substantial lessening of competition concerned; and

b to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition.

3 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.

4 In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.

5 In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

^C46641A ^C466Time-limit for discharging duty under section 41¶

1 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.

2 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.

3 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.

4 In subsection (3), “relevant person” means—

a any person carrying on any of the enterprises concerned;

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

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

5 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.

6 An extension under subsection (2) or (3) comes into force when published under section 107.

7 An extension under subsection (3) continues in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

^C46641B ^C466Section 41A: supplementary¶

1 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).

2 No more than one extension is possible under section 41A(2).

3 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).

4 Subsection (5) applies where—

a the period within which the CMA must discharge its duty under section 41(2) is further extended;

b the further extension and at least one previous extension is made under section 41A(3); and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

5 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.

6 The Secretary of State may by order amend section 41A so as to alter either or both of the following periods—

a 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;

b 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.

7 But no alteration may be made by virtue of subsection (6) which results in—

a the period for the time being mentioned in section 41A(1) exceeding 12 weeks; or

b the period for the time being mentioned in section 41A(2) exceeding 6 weeks.

8 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.

^C386Chapter 2 Public interest cases¶

Power to make references¶

42 Intervention by Secretary of State in certain public interest cases¶

1 Subsection (2) applies where—

a 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;

b no reference under section 22, 33, 68B or 68C has been made in relation to the relevant merger situation concerned;

c 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

d no reference is prevented from being made under section 22, 33, 68B or 68C by virtue of—

i 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); ^F712...

^F712ii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 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.

3 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.

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

5 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).

6 In their application by virtue of subsection (5) sections 23 to 30 shall have effect as if—

a for paragraph (a) of section 23(9) there were substituted—

;

b the references to the CMA in section 25(1) to (3) ^F375... included references to the Secretary of State;

c the references to the CMA in section 25(4) and (5) were references to the Secretary of State;

d the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;

e after section 25(5) there were inserted—

;

f in section 25(10)(b) for “ and (4) ” there were substituted “, (4) and (5A)”;

g 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;

h the powers to extend time-limits under section 25 as applied by subsection (5) above ^F1156... 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;

i 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;

^F516j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

k 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; ^F1019...

^F1019l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 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.

8 For the purposes of this Part a public interest consideration is finalised if—

a it is specified in section 58 otherwise than by virtue of an order under subsection (3) of that section; or

b it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (7) of section 124 and within the period mentioned in that subsection.

43 Intervention notices under section 42¶

1 An intervention notice shall state—

a the relevant merger situation concerned;

b the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and

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

2 Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to 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.

3 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.

4 For the purposes of this Part, a matter to which an intervention notice relates is finally determined under this Chapter if—

a the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under section 44 or (as the case may be) 44A has expired and no such report has been made;

b the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 45;

c the Secretary of State otherwise decides not to make a reference under that section;

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

e 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;

f 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;

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

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

i 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

j 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.

5 For the purposes of this Part the time when a matter to which an intervention notice relates is finally determined under this Chapter is—

a in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;

b in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;

c in a case falling within subsection (4)(c), (d), (g) or (h), the making of the decision concerned;

d 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

e 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.

6 In this Part “OFCOM” means the Office of Communications.

44 Investigation and report by CMA¶

1 Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.

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

3 The report shall contain—

a advice from the CMA on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and

b a summary of any representations about the case which have been received by the CMA and which relate to any public interest consideration mentioned in the 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.

4 The report shall, in particular, include decisions as to whether the CMA believes that it is, or may be, the case that—

a 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;

b the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

c the market or markets concerned would not be of sufficient importance to justify the making of a reference ^F1637... under section 22 or 33;

d 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;

e 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

f 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.

5 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.

5A 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.

6 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.

7 The CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

8 In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned—

a is specified in section 58(2A) to (2C); or

b in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58.

9 In this Part “broadcasting” means the provision of services the provision of which—

a 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

b would be required to be so licensed if provided by a person subject to licensing under the Part in question.

10 In this Part, “newspaper” means a publication which—

a consists of, or includes, news-related material which is subject to editorial control;

b is published on any periodic basis; and

c is connected with the United Kingdom.

10A For the purposes of subsection (10)—

a “news-related material” means—

i news or information about current affairs; or

ii opinion about matters relating to the news or current affairs;

b news-related material contained in a publication is subject to editorial control if the publisher of the publication has editorial or equivalent responsibility for—

i the content of the material (which may include commissioning it);

ii how the material is presented; and

iii the decision to first publish the material;

c a publication is not to be treated as consisting of, or including, news-related material if the news-related material contained in the publication—

i is included only incidentally to the main content of the publication; or

ii relates wholly to a particular pastime, hobby, trade, business, industry or profession;

d “publication” means a publication which is—

i online; or

ii in hard copy,

and references to “publish” or a “publisher” are to be construed accordingly;

e 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;

f a publication is connected with the United Kingdom if—

i the majority of its readership is in the United Kingdom;

ii the majority of editorial decisions about the publication are taken in the United Kingdom; or

iii the registered or principal office of the publisher of the publication is in the United Kingdom.

11 The Secretary of State may by order amend subsections (9) and (10).

44A Additional investigation and report by OFCOM: media mergers¶

1 Subsection (2) applies where—

a the Secretary of State has given an intervention notice in relation to a relevant merger situation; and

b the intervention notice mentions any media public interest consideration.

2 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.

3 The report shall contain—

a 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

b a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

4 OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

45 Power of Secretary of State to refer matter to CMA ¶

1 Subsections (2) to (5) apply where the Secretary of State—

a has given an intervention notice in relation to a relevant merger situation; and

b 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.

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

a a relevant merger situation has been created;

b the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

c one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

d taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

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

a a relevant merger situation has been created;

b the creation of that situation has not resulted, and may be expected not to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

c one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

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

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

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

b the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

c one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

d taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.

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

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

b the creation of that situation may be expected not to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;

c one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and

d taking account only of the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.

6 For the purposes of this Chapter any anti-competitive outcome shall be treated as being adverse to the public interest unless it is justified by one or more than one public interest consideration which is relevant.

7 This section is subject to section 46.

46 References under section 45: supplementary¶

1 No reference shall be made under section 45 if—

a the making of the reference is prevented by section ^F11. . . 74(1) ^F406... or paragraph 4 of Schedule 7; or

^F1016b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F649c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F10771A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 The Secretary of State, in deciding whether to make a reference under section 45, shall accept the decisions of the CMA included in its report by virtue of subsection (4) of section 44 and any descriptions of undertakings as mentioned in subsection (5) of that section.

3 Where the decision to make a reference under section 45 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised before the end of that period.

4 Subject to subsection (5), where the decision to make a reference under section 45(2) or (4) is made at any time before the end of the period of 24 weeks beginning with the giving of the intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the intervention notice but which has not been finalised if its effect would be to prevent, or to help to prevent, an anti-competitive outcome from being adverse to the public interest.

5 The Secretary of State may, if he believes that there is a realistic prospect of the public interest consideration mentioned in subsection (4) being finalised within the period of 24 weeks beginning with the giving of the intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.

6 A reference under section 45 shall, in particular, specify—

a the subsection of that section under which it is made;

b the date on which it is made; and

c the public interest consideration or considerations mentioned in the intervention notice concerned which the Secretary of State is not under a duty to disregard by virtue of subsection (3) above and which he believes are or may be relevant to a consideration of the relevant merger situation concerned.

^F1086...¶

^F108646A Cases referred by the European Commission where intervention notice is in force¶

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

^F140846B Extension of preliminary assessment period¶

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

^F135946C Power to request information in referred cases¶

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

Reports on references¶

46D ^C458Functions to be exercised by CMA groups¶

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—

a sections 47 to 53;

b 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));

c 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;

d section 107, so far as relating to anything done on behalf of the CMA by the group;

e 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;

f sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

g section 118(4);

h section 120(5)(b), so far as relating to a decision of the group.

^C4647 Questions to be decided on references under section 45¶

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

2 If the CMA decides that such a situation has been created, it shall, on a reference under section 45(2), decide the following additional questions—

a whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and

b whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

3 If the CMA decides that a relevant merger situation has been created, it shall, on a reference under section 45(3), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.

4 The CMA shall, on a reference under section 45(4) or (5), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation.

5 If the CMA decides that such arrangements are in progress or in contemplation, it shall, on a reference under section 45(4), decide the following additional questions—

a whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services; and

b whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.

6 If the CMA decides that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, it shall, on a reference under section 45(5), decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.

7 The CMA shall, if it has decided on a reference under section 45 that the creation of a relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions—

a whether action should be taken by the Secretary of State under section 55 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation;

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

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

8 Where the CMA has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition within any market or markets in the United Kingdom for goods or services, it shall also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 56(6))—

a whether action should be taken by it under section 41 for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;

b whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and

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

9 In deciding the questions mentioned in subsections (7) and (8) the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

a the adverse effects to the public interest; or

b (as the case may be) the substantial lessening of competition and any adverse effects resulting from it.

10 In deciding the questions mentioned in subsections (7) and (8) in a case where it has decided by virtue of subsection (2)(a) or (5)(a) that there is or will be a substantial lessening of competition, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

11 In this section “admissible public interest consideration” means any public interest consideration which is specified in the reference under section 45 and which the CMA is not under a duty to disregard.

48 Cases where references or certain questions need not be decided¶

1 The CMA shall cancel a reference under section 45(4) or (5) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.

2 In relation to the question whether a relevant merger situation has been created or the question whether a relevant merger situation will be created, a reference under section 45 may be framed so as to require the CMA to exclude from consideration—

a subsection (1) of section 23;

b subsection (2) of that section; or

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

3 In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen or the question whether any such result will arise, a reference under section 45 may be framed so as to require the CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.

49 Variation of references under section 45¶

1 The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat—

a a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or

b a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;

and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.

2 Where, by virtue of subsection (1), the CMA treats a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section, paragraphs ^F1339... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (4) or (as the case may be) (5) of that section instead of under subsection (2) or (3) of that section.

3 Where, by virtue of subsection (1), the CMA treats a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section, paragraphs ^F1692... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (2) or (as the case may be) (3) of that section instead of under subsection (4) or (5) of that section.

4 Subsection (5) applies in relation to ^F1341... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (1), treats a reference as mentioned in subsection (1).

5 The ^F1624... order shall, so far as applicable, continue in force as if—

a in the case of an ^F1624... order which relates to a reference under subsection (2) or (3) of section 45 ^F1192... made in relation to a reference made under subsection (4) or (as the case may be) (5) of that section; and

b in the case of an ^F1624... order which relates to a reference made under subsection (4) or (5) of that section ^F1192... made in relation to a reference made under subsection (2) or (as the case may be) (3) of that section;

and the ^F1624... order concerned may be varied ^F1601... or revoked accordingly.

6 The Secretary of State may at any time vary a reference under section 45.

7 The Secretary of State shall consult the CMA before varying any such reference.

8 Subsection (7) shall not apply if the CMA has requested the variation concerned.

9 No variation by the Secretary of State under this section shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by section 51 within which the report of the CMA under section 50 is to be prepared and given to the Secretary of State.

50 Investigations and reports on references under section 45¶

1 The CMA shall prepare a report on a reference under section 45 and give it to the Secretary of State within the period permitted by section 51.

2 The report shall, in particular, contain—

a the decisions of the CMA on the questions which it is required to answer by virtue of section 47;

b its reasons for its decisions; and

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

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

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

51 Time-limits for investigations and reports by CMA ¶

1 The CMA shall prepare its report under section 50 and give it to the Secretary of State under that section within the period of 24 weeks beginning with the date of the reference concerned.

2 Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 45, the CMA shall prepare its report under section 50 and give it to the Secretary of State—

a within the period of 24 weeks beginning with the date of the reference; or

b if it is a shorter period, within such period as is necessary to ensure compliance with that article.

2A Where —

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

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

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

b the Secretary of State consents to the original period being extended by the extension period,

the CMA may extend the original period by the extension period.

3 The CMA may extend, by no more than 8 weeks, the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.

4 The CMA may extend the period within which a report under section 50 is to be prepared and given to the Secretary of State if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.

5 In subsection (4) “relevant person” means—

a any person carrying on any of the enterprises concerned;

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

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

7 An extension under subsection (2A), (3) or (4) shall come into force when published under section 107.

7A An extension under subsection (2A) continues in force until—

a the end of the extension period, or

b an earlier time if, before the end of that period—

i the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time,

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

iii the CMA publishes its decision to cancel the extension with effect from that time.

8 An extension under subsection (4) shall continue in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

9 This section is subject to sections 52 and 53.

52 Section 51: supplementary¶

1 No extension is possible under subsection (3) or (4) of section 51 where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(b) of that section.

2 Where the period within which the report is to be prepared and given to the Secretary of State is determined by virtue of subsection (2)(a) of section 51, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.

3 A period extended under any subsection of section 51 may also be extended under any other subsection of that section.

4 No more than one extension is possible under section 51(3).

5 Where a period within which a report under section 50 is to be prepared and given to the Secretary of State is extended or further extended under section 51(2A), (3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

6 Subsection (7) applies where—

a the period within which the report under section 50 is to be prepared and given to the Secretary of State is further extended;

b the further extension and at least one previous extension is made under section 51(4); and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

7 In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.

8 The Secretary of State may by order amend section 51 so as to alter any one or more of the following periods—

a the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;

b the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;

c the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.

9 No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) or (2)(a) of section 51 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.

10 An order under subsection (8) shall not affect any period of time within which the CMA is under a duty to prepare and give to the Secretary of State its report under section 50 in relation to a reference under section 45 if the CMA is already under that duty in relation to that reference when the order is made.

11 Before making an order under subsection (8) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.

12 The Secretary of State may make regulations for the purposes of section 51(8).

13 The regulations may, in particular—

i the CMA is satisfied as to the provision of the information or documents required by it; or

ii the person concerned has appeared as a witness in accordance with the requirements of the CMA;

d provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 51(8) applies, of the time at which the CMA is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.

53 Restrictions on action where public interest considerations not finalised¶

1 The CMA shall cancel a reference under section 45 if—

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

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

c at least 24 weeks has elapsed since the giving of the notice; and

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

2 Where a reference ^F1305... under section 45 specifies a public interest consideration which has not been finalised before the making of the reference, the CMA shall not give its report to the Secretary of State under section 50 in relation to that reference unless—

a the period of 24 weeks beginning with the giving of the intervention notice concerned has expired; or

b the public interest consideration concerned has been finalised; or

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

3 The CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which has not been finalised before the giving of the report.

4 The CMA shall, in reporting on any of the questions mentioned in section 47(2)(b), (3), (5)(b), (6) and (7), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.

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

Decisions of the Secretary of State¶

54 Decision of Secretary of State in public interest cases¶

1 Subsection (2) applies where the Secretary of State has received a report of the CMA under section 50 in relation to a relevant merger situation.

2 The Secretary of State shall decide whether to make an adverse public interest finding in relation to the relevant merger situation and whether to make no finding at all in the matter.

3 For the purposes of this Part the Secretary of State makes an adverse public interest finding in relation to a relevant merger situation if, in relation to that situation, he decides—

a in connection with a reference ^F969... under subsection (2) of section 45, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (3) of that section;

b in connection with a reference ^F969... under subsection (3) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection;

c in connection with a reference ^F969... under subsection (4) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection or subsection (5) of that section; and

d in connection with a reference ^F969... under subsection (5) of that section, that it is the case as mentioned in paragraphs (a) to (d) of that subsection.

4 The Secretary of State may make no finding at all in the matter only if he decides that there is no public interest consideration which is relevant to a consideration of the relevant merger situation concerned.

5 The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 working days beginning with the receipt of the report of the CMA under section 50.

6 In making a decision under subsections (2) to (4), the Secretary of State shall disregard any public interest consideration not specified in the reference under section 45 and any public interest consideration disregarded by the CMA for the purposes of its report.

7 In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept—

a in connection with a reference ^F801... under section 45(2) or (4), the decision of the report of the CMA under section 50 as to whether there is an anti-competitive outcome; and

b in connection with a reference ^F801... under section 45(3) or (5)—

i the decision of the report of the CMA under section 50 as to whether a relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and

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

^F7248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

55 Enforcement action by Secretary of State¶

1 Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 54 within the period required by subsection (5) of that section to make an adverse public interest finding in relation to a relevant merger situation and has published his decision within the period so required.

2 The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the relevant merger situation concerned.

3 In making a decision under subsection (2) the Secretary of State shall, in particular, have regard to the report of the CMA under section 50.

4 In making a decision under subsection (2) in any case of a substantial lessening of competition, the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

Other¶

56 Competition cases where intervention on public interest grounds ceases¶

1 Where the Secretary of State decides not to make a reference under section 45 on the ground that no public interest consideration to which he is able to have regard is relevant to a consideration of the relevant merger situation concerned, he shall by notice require the CMA to deal with the matter otherwise than under this Chapter.

2 Where a notice is given to the CMA in the circumstances mentioned in subsection (1), the CMA shall decide whether to make a reference under section 22 , 33, 68B or 68C; and any time-limits in relation to the Secretary of State’s decision whether to make a reference under section 45 (including any remaining powers of extension) shall apply in relation to the decision of the CMA whether to make a reference under section 22 , 33, 68B or 68C.

3 Where the CMA cancels under section 53(1) a reference under section 45 and its report under section 44 contains the decision that it is or may be the case that there is an anti-competitive outcome in relation to the relevant merger situation concerned, the CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ^F1068....

4 In proceeding by virtue of subsection (3) to prepare and publish a report under section 38, the CMA shall proceed as if—

a the reference under section 22 or 33 had been made at the same time as the reference under section 45;

b the timetable for preparing and giving its report under section 50 (including any remaining powers of extension and as extended by an additional period of 20 working days) were the timetable for preparing and publishing its report under section 38; and

c in relation to the question whether a relevant merger situation has been created or the question whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, the CMA were confined to the questions on the subject to be investigated by it under section 47.

^F6745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Where the Secretary of State decides under section 54(2) to make no finding at all in the matter in connection with a reference under section 45(2) or (4), the CMA shall proceed under this Part as if a reference under section 22 or (as the case may be) 33 had been made ^F466... instead of a reference under section 45 and as if its report to the Secretary of State under section 50 had been prepared and published by it under section 38 within the period permitted by section 39.

7 In relation to proceedings by virtue of subsection (6), the reference in section 41(3) to decisions of the CMA as included in its report by virtue of section 35(3) or 36(2) shall be construed as a reference to decisions which were included in the report of the CMA by virtue of section 47(8).

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

a references in this Part to references under sections 22 and 33 shall, so far as may be necessary, be construed accordingly; and, in particular, sections 77 to 81 shall apply as if a reference has been made ^F274... under section 22 or (as the case may be) 33; and

b for the purposes of section 34C, the group constituted in consequence of the reference under section 45 is to be treated as if it were constituted in consequence of a reference under section 22 or (as the case may be) 33.

57 Duties of CMA and OFCOM to inform Secretary of State¶

1 The CMA shall, in considering whether to make a reference under section 22, 33, 68B or 68C, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 58 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.

2 The CMA and OFCOM shall bring to the attention of the Secretary of State any representations about exercising his powers under section 58(3) which have been made to the CMA or (as the case may be) OFCOM.

58 Specified considerations¶

^F16031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2A The need for—

a accurate presentation of news; and

b free expression of opinion;

in news media is specified in this section.

2B The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in news media in each market for news media in the United Kingdom or a part of the United Kingdom is specified in this section.

2C The following are specified in this section—

a the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;

b the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and

c the need for persons carrying on enterprises consisting in or involving broadcasting, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.

2D The interest of maintaining the stability of the UK financial system is specified in this section ^F1099....

2E The need to maintain in the United Kingdom the capability to combat, and to mitigate the effects of, public health emergencies is specified in this section.

2F In this Part, “news media” means—

a newspapers; or

b news programmes.

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

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

b included in broadcasting.

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

a “news-related material” includes—

i news or information about current affairs; and

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

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

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

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

3 The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.

4 An order under this section may, in particular—

a provide for a consideration to be specified in this section for a particular purpose or purposes or for all purposes;

b apply in relation to cases under consideration by the CMA, OFCOM or the Secretary of State before the making of the order as well as cases under consideration on or after the making of the order.

58A Construction of consideration specified in section 58(2C)¶

1 For the purposes of this Part an enterprise is a media enterprise if it consists in or involves broadcasting or is a newspaper enterprise.

^F3172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers.

4 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.

5 For the purposes of section 58, where two or more media enterprises—

a would fall to be treated as under common ownership or common control for the purposes of section 26, or

b are otherwise in the same ownership or under the same control,

they shall be treated (subject to subsection (4)) as all under the control of only one person.

6 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—

a as a reference to any one of the audiences served by that enterprise, taking them separately;

b as a reference to all the audiences served by that enterprise, taking them together;

c as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or

d as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.

7 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—

a shall be such as the decision-making authority considers appropriate in the circumstances of the case; and

b may allow for persons to be treated as members of an audience if they are only potentially members of it.

8 In this section “audience” includes readership.

9 The power under subsection (3) of section 58 to modify that section includes power to modify this section.

Chapter 3 Other special cases¶

Special public interest cases¶

59 Intervention by Secretary of State in special public interest cases¶

1 Subsection (2) applies where the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

2 The Secretary of State may give a notice to the CMA (in this Part “a special intervention notice”) if he believes that it is or may be the case that one or more than one consideration specified in section 58 is relevant to a consideration of the special merger situation concerned.

3 For the purposes of this Part, a special merger situation has been created if—

a two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24;

b no relevant merger situation has been created; and

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

^F3493B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3C The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on.

3D The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.

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

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

b for paragraph (b) there were substituted—

;

c after that paragraph there were inserted—

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

5 For the purposes of deciding whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24, whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 to 30 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).

6 In their application by virtue of subsection (5) sections 23 to 30 shall have effect as if—

a for paragraph (a) of section 23(9) there were substituted—

;

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

c the references to the CMA in section 25(1) to (3) ^F1653... included references to the Secretary of State;

d the references to the CMA in section 25(4) and (5) were references to the Secretary of State;

e the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;

f the reference in section 25(12) to one extension were a reference to one extension by the CMA and one extension by the Secretary of State;

g the powers to extend time-limits under section 25 as applied by subsection (5) above ^F1106... were not exercisable by the CMA or the Secretary of State before the giving of a special intervention notice;

^F526h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i in the case of the giving of special intervention notices, the references in sections 23 to 30 to the making of a reference or a reference were, so far as necessary, references to the giving of a special intervention notice or a special intervention notice; ^F680...

^F680j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6A The Secretary of State may by order —

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

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

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

^F16068 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59A Construction of conditions in section 59(3C) and (3D)¶

1 For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to—

a newspapers of any description, or

b broadcasting 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.

2 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—

a as references to any of those forms of supply taken separately;

b as references to all those forms of supply taken together; or

c as references to any of those forms of supply taken in groups.

3 For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—

a the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

b 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.

4 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—

a as references to any of those forms of provision taken separately;

b as references to all those forms of provision taken together; or

c as references to any of those forms of provision taken in groups.

5 For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—

a the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

b 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.

6 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.

7 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.

60 Special intervention notices under section 59¶

1 A special intervention notice shall state—

a the special merger situation concerned; and

b the consideration specified in section 58 or considerations so specified which are, or may be, relevant to the special merger situation concerned.

2 Where the Secretary of State believes that it is or may be the case that two or more considerations specified in section 58 are relevant to a consideration of the special merger situation concerned, he may decide not to mention in the special intervention notice such of those considerations as he considers appropriate.

3 A special intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.

4 For the purposes of this Part, a matter to which a special intervention notice relates is finally determined under this Chapter if—

a the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under section 61 or (as the case may be) 61A has expired and no such report has been made;

b the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 62;

c the Secretary of State otherwise decides not to make a reference under that section;

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

e the time within which theCMA is to prepare a report under section 65 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;

f the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

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

h the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or

i the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.

5 For the purposes of this Part the time when a matter to which a special intervention notice relates is finally determined under this Chapter is—

a in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;

b in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;

c in a case falling within subsection (4)(c), (d) or (g), the making of the decision concerned;

d in a case falling within subsection (4)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and

e in a case falling within subsection (4)(i), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

61 Initial investigation and report by CMA ¶

1 Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.

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

3 The report shall contain—

b a summary of any representations about the case which have been received by the CMA and which relate to any consideration mentioned in the special intervention notice concerned (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

4 The report shall include a decision as to whether the CMA believes (disregarding section 59(3B)(b)) that it is, or may be, the case that a special merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

4A The report may, in particular, contain a summary of any representations about the case which have been received by the CMA and which relate to any consideration which—

a is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and

b is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

5 The report may, in particular, include advice and recommendations on any consideration mentioned in the special intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

6 The CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

61A Additional investigation and report by OFCOM: certain media mergers¶

1 Subsection (2) applies where—

a the Secretary of State has given a special intervention notice in relation to a special merger situation; and

b 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).

2 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.

3 The report shall contain—

a advice and recommendations on any consideration which—

i 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

ii is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and

b a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

4 OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

62 Power of Secretary of State to refer the matter¶

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

a has given a special intervention notice in relation to a special merger situation; and

b has received a report of the CMA under section 61, and any report of OFCOM which is required by virtue of section 61A, in relation to the matter.

a a special merger situation has been created;

b one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

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

a arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;

b one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

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

4 No reference shall be made under this section if the making of the reference is prevented by ^F21. . . paragraph 4 of Schedule 7.

5 The Secretary of State, in deciding whether to make a reference under this section, shall accept the decision of the CMA included in its report under section 61 by virtue of subsection (4) of that section.

6 A reference under this section shall, in particular, specify—

a the subsection of this section under which it is made;

b the date on which it is made; and

c the consideration or considerations mentioned in the special intervention notice which the Secretary of State believes are, or may be, relevant to a consideration of the special merger situation concerned.

62A ^C472Functions to be exercised by CMA groups¶

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—

a sections 63 to 65;

b 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));

c 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;

d section 107, so far as relating to anything done on behalf of the CMA by the group;

e 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;

f sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;

g section 118(4);

h section 120(5)(b), so far as relating to a decision of the group.

^C4763 Questions to be decided on references under section 62¶

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

2 The CMA shall, on a reference under section 62(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

3 If the CMA decides that a special merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation, it shall, on a reference under section 62, decide whether, taking account only of the consideration or considerations mentioned in the reference, the creation of that situation operates or may be expected to operate against the public interest.

4 The CMA shall, if it has decided on a reference under section 62 that the creation of a special merger situation operates or may be expected to operate against the public interest, decide the following additional questions—

a whether action should be taken by the Secretary of State under section 66 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned;

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

64 Cancellation and variation of references under section 62¶

1 The CMA shall cancel a reference under section 62(3) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.

2 The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section; and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.

3 Where, by virtue of subsection (2), the CMA treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section, paragraphs ^F1239... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (3) or (as the case may be) (2) of that section instead of under subsection (2) or (3) of that section.

4 Subsection (5) applies in relation to ^F947... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (2), treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section.

5 The ^F756... order shall, so far as applicable, continue in force as if—

a in the case of an ^F756... order which relates to a reference under subsection (2) of section 62^F1719... made in relation to a reference made under subsection (3) of that section; and

b in the case of an ^F756... order which relates to a reference made under subsection (3) of that section^F1719... made in relation to a reference made under subsection (2) of that section;

and the ^F756... order concerned may be varied^F855... or revoked accordingly.

6 The Secretary of State may at any time vary a reference under section 62.

7 The Secretary of State shall consult the CMA before varying any such reference.

8 Subsection (7) shall not apply if the CMA has requested the variation concerned.

9 No variation by the Secretary of State under this section shall be capable of altering the consideration or considerations specified in the reference or the period permitted by virtue of section 65 within which the report of the CMA under that section is to be prepared and given to the Secretary of State.

65 Investigations and reports on references under section 62¶

1 The CMA shall prepare a report on a reference under section 62 and give it to the Secretary of State within the period permitted by virtue of this section.

2 The report shall, in particular, contain—

a the decisions of the CMA on the questions which it is required to answer by virtue of section 63;

b its reasons for its decisions; and

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

2A Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the CMA shall give a copy of its report (whether or not published) to OFCOM.

3 Sections 51 and 52 (but not section 53) shall apply for the purposes of a report under this section as they apply for the purposes of a report under section 50.

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

66 Decision and enforcement action by Secretary of State¶

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

2 The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the CMA is required to decide by virtue of section 63(1) to (3).

3 The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the CMA under section 65; and subsection (8) of section 54 shall apply for the purposes of this subsection as it applies for the purposes of subsection (5) of that section.

4 In making his decisions under subsection (2), the Secretary of State shall accept the decisions of the report of the CMA under section 65 as to whether a special merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.

5 Subsection (6) applies where the Secretary of State has decided under subsection (2) that—

a a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;

b at least one consideration which is mentioned in the special intervention notice concerned is relevant to a consideration of the special merger situation concerned; and

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

and has so decided, and published his decision, within the period required by subsection (3).

6 The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation concerned.

7 In making a decision under subsection (6), the Secretary of State shall, in particular, have regard to the report of the CMA under section 65.

^F1055...¶

^F105567 Intervention to protect legitimate interests¶

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

^F90068 Scheme for protecting legitimate interests¶

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

Mergers of energy network enterprises in Great Britain¶

68A Relevant merger situations involving energy network mergers¶

1 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.

2 For the purposes of this Part, the types of “energy network enterprise” are—

a an enterprise holding a licence under section 7 of the Gas Act 1986 (gas transporter);

b an enterprise holding a licence under section 6(1)(b) of the Electricity Act 1989 (transmission of electricity), except as mentioned in subsection (3);

c an enterprise holding a licence under section 6(1)(c) of the Electricity Act 1989 (distribution of electricity), except as mentioned in subsection (3).

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—

a the licence was granted following a tender exercise, and

b either—

i the enterprise does not hold any other licence of a type mentioned in subsection (2), or

ii 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.

4 The Secretary of State may by regulations amend this section by—

a 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;

b creating an exception in relation to a type of enterprise specified in subsection (2);

c amending or removing an exception that applies in relation to a type of enterprise specified in subsection (2).

5 Before making regulations under subsection (4), the Secretary of State must consult—

a the Gas and Electricity Markets Authority, and

b the CMA.

6 In this section, “tender exercise” has the same meaning as in section 6CD of the Electricity Act 1989.

68B Further duty to make references in relation to completed mergers¶

1 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—

a a relevant merger situation involving an energy network merger has been created, and

b 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;

but this is subject to subsections (2) and (3).

2 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).

3 The CMA may not make a reference under this section—

a in any circumstances mentioned in section 22(3)(za) to (b) or (d), or

b if the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 68C.

4 A reference under this section must, in particular, specify—

a the enactment under which it is made, and

b the date on which it is made.

68C Further duty to make references in relation to anticipated mergers¶

a 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

b 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,

but this is subject to subsections (2) and (3).

2 The CMA may decide not to make a reference under this section if it believes that—

a the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference, or

b any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the prejudice mentioned in subsection (1)(b).

3 The CMA may not make a reference under this section—

a in any circumstances mentioned in section 33(3)(za) to (b) or (d), or

b if the arrangements concerned are being, or have been, dealt with in connection with a reference under section 68B.

4 A reference under this section must, in particular, specify—

a the enactment under which it is made, and

b the date on which it is made.

68D Opinion of the Gas and Electricity Markets Authority¶

1 Before forming a view for the purposes of section 68B(1)(b) or (2) or 68C(1)(b) or (2)(b), the CMA must—

a ask the Gas and Electricity Markets Authority to give an opinion, and

b consider that opinion.

2 Where the CMA makes a request under this section, the Gas and Electricity Markets Authority must give its opinion on—

a 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

b whether any prejudice is outweighed by any relevant customer benefits in relation to the creation of the relevant merger situation.

3 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).

4 The statement must, in particular, set out—

a 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

b the relative weight to be given to the criteria.

5 Before preparing or altering the statement, the Gas and Electricity Markets Authority must consult—

a the Secretary of State,

b the Scottish Ministers,

c the Welsh Ministers,

d the CMA, and

e each energy network enterprise.

6 The Gas and Electricity Markets Authority must from time to time—

a review the statement, and

b where appropriate, change the statement and publish the new version.

7 In forming its opinion under this section, the Gas and Electricity Markets Authority must apply the methods set out in its latest statement.

68E Combined references¶

1 In respect of a relevant merger situation involving an energy network merger, the CMA may—

a make a reference under both section 22 and section 68B, or

b make a reference under both section 33 and section 68C.

2 If the CMA does so—

a the references may be decided by the same group constituted under Schedule 4 to the Enterprise and Regulatory Reform Act 2013;

b 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

c 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.

68F Modification of this Part¶

1 In relation to—

a a reference, or possible reference, under section 68B, and

b a reference, or possible reference, under section 68C,

Chapter 1 of this Part applies with the modifications set out in Schedule 5A.

2 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.

Other¶

69 Newspaper mergers¶

^F63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70 Water mergers¶

1 For sections 32 to 35 of the Water Industry Act 1991 (c. 56) (special provision for water merger references) there shall be substituted—

32 Duty to refer merger of water or sewerage undertaking

Subject to section 33 below, it shall be the duty of the OFT to make a merger reference to the Competition Commission if the OFT believes that it is or may be the case—

a that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises; or

b that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) above.

33 Exclusion of small mergers from duty to make reference

1 The OFT shall not make a merger reference under section 32 above in respect of any actual or prospective merger of two or more water enterprises if it appears to the OFT—

a that the value of the turnover of the water enterprise being taken over does not exceed or, as the case may be, would not exceed £10 million; or

b that the only water enterprises already belonging to the person making the take over are enterprises each of which has a turnover the value of which does not exceed or, as the case may be, would not exceed £10 million.

2 For the purposes of subsection (1)(a) above, the value of the turnover of the water enterprise being taken over shall be determined by taking the total value of the turnover of the water enterprises ceasing to be distinct enterprises and deducting—

a the turnover of any water enterprise continuing to be carried on under the same ownership and control; or

b if there is no water enterprise continuing to be carried on under the same ownership and control, the turnover which, of all the turnovers concerned, is the turnover of the highest value.

3 For the purposes of subsection (1)(b) above—

a every water enterprise ceasing to be a distinct enterprise and whose turnover is to be deducted by virtue of subsection (2)(a) or (b) above shall be treated as a water enterprise belonging to the person making the take over; and

b water enterprises shall be treated as separate enterprises so far as they are carried on by different companies holding appointments under Chapter 1 of this Part.

4 For the purposes of this section the turnover of a water enterprise shall be determined in accordance with such provisions as may be specified in regulations made by the Secretary of State.

5 Regulations under subsection (4) above may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover; and

b the date or dates by reference to which an enterprise’s turnover is to be determined.

6 Regulations under subsection (4) above may, in particular, make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (5) above).

7 The Secretary of State may by regulations amend subsection (1) above so as—

a to alter the sum for the time being mentioned in paragraph (a) of that subsection or otherwise to modify the condition set out in that paragraph; or

b to alter the sum for the time being mentioned in paragraph (b) of that subsection or otherwise to modify the condition set out in that paragraph.

8 Regulations under subsection (7) above—

a shall not make any modifications in relation to mergers on or before the coming into force of the regulations; and

b may, in particular, include supplemental, consequential or transitional provision amending or repealing any provision of this section.

9 References in this section to enterprises being carried on under the same ownership and control shall be construed in accordance with Part 3 of the 2002 Act.

34 Application of provisions of Enterprise Act 2002

The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises.

35 Construction of merger provisions

1 In this Chapter (including Schedule 4ZA)—

“enterprise” has the same meaning as in Part 3 of the 2002 Act; and
“water enterprise” means an enterprise carried on by a water undertaker.

2 References in this Chapter (including Schedule 4ZA), in relation to any two or more enterprises, to the merger of those enterprises are references to those enterprises ceasing, within the meaning of Part 3 of the 2002 Act, to be distinct enterprises; and sections 27 and 29 of that Act and any provision made under section 34 of that Act (time at which enterprises cease to be distinct) shall have effect for the purposes of this Chapter (including Schedule 4ZA) as they have effect for the purposes of that Part.

3 Nothing in sections 32 to 34 above (including Schedule 4ZA) shall prejudice any power of the OFT or the Secretary of State, in a case in which, or to any extent to which, the OFT is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act in respect of any actual or prospective merger of two or more water enterprises.

4 Where two or more enterprises have merged or will merge as part of transactions or arrangements which also involve an actual or prospective merger of two or more water enterprises, Part 3 of the 2002 Act shall apply in relation to the actual or prospective merger of the enterprises concerned excluding the water enterprises; and references in that Part to the creation of a relevant merger situation shall be construed accordingly.

5 Subject to subsections (3) and (4), Part 3 of the 2002 Act shall not apply in a case in which the OFT is required to make a reference under section 32 above except as applied by virtue of Schedule 4ZA.

2 Before Schedule 4A to the Act of 1991 there shall be inserted, as Schedule 4ZA, the Schedule set out in Schedule 6 to this Act.

Chapter 3A Mergers involving newspaper enterprises and foreign powers¶

70A Intervention by the Secretary of State¶

1 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 a foreign state newspaper merger situation has been created, or

b arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

2 A foreign state intervention notice must describe the foreign state newspaper merger situation to which it relates.

3 For the purposes of this Chapter a foreign state newspaper merger situation has been created where—

a 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,

b one of the enterprises concerned is a newspaper enterprise, and

c 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.

4 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).

5 A foreign state intervention notice—

a comes into force when it is given, and

b ceases to be in force when the matter to which it relates is finally determined under this Chapter (see section 70F).

70B Investigation and report by the CMA¶

1 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.

2 The report must include—

a a summary of representations relevant to the case that have been received by the CMA, and

b a decision as to whether the CMA believes that—

i a foreign state newspaper merger situation has been created, or

ii arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

3 The CMA must carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

4 For the purposes of its investigation the CMA must invite representations from the enterprises concerned in the case.

70C Intervention to prevent foreign control of a newspaper enterprise¶

1 Subsection (2) applies where the Secretary of State has received a report under section 70B stating that the CMA believes that—

a a foreign state newspaper merger situation has been created, or

b arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

2 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.

3 An order under subsection (2) may contain—

a anything permitted by Schedule 8 (provision that may be contained in certain enforcement orders), and

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

4 An order under subsection (2)—

a comes into force at such time as is determined by or under the order, and

b may be varied or revoked by another order.

5 Paragraph 2 of Schedule 7 (enforcement regime for public interest and special public interest cases: order for the purposes of preventing pre-emptive action)—

a applies in relation to a foreign state intervention notice as it applies in relation to an intervention notice, and

b for this purpose, is to be read as if—

i sub-paragraph (10) were omitted;

ii for sub-paragraph (12), there were substituted—

70D Other powers under this Part¶

1 Nothing in this Chapter limits the exercise of powers in relation to a foreign state newspaper merger situation under other provisions of this Part.

2 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.

3 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).

70E Meaning of “foreign power”¶

1 In this Chapter, “foreign power” means—

a the sovereign or other head of a foreign state in their public or private capacity,

b a foreign government or part of a foreign government,

c the head or senior members of a foreign government in their private capacity,

d an agency or authority of a foreign government, or of part of a foreign government,

e 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,

f 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,

g a political party which is a governing political party of a foreign government, or

h the officers of a political party, which is a governing political party of a foreign government, in their private capacity.

2 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—

a hold those posts as a result of, or in the course of, their membership of the party, or

b in exercising the functions of those posts, are subject to the direction or control of, or significantly influenced by, the party.

3 In this section—

“foreign country or territory” means a country or territory outside the United Kingdom, the Channel Islands, the Isle of Man or the British Overseas Territories;
“foreign government” means the government of a foreign country or territory;
a “government” includes persons exercising the functions of a government;
“territory” includes the constituent territories of a federal state.

70F Other interpretation¶

^F3311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 For the purposes of this Chapter, a matter is finally determined when the Secretary of State—

a makes an order under section 70C(2), or

b 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—

i no foreign state newspaper merger situation has been created, or

ii 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.

70G Regulations¶

1 The Secretary of State may by regulations change the meaning of—

a “foreign power”, or

b “newspaper”,

for the purposes of this Chapter.

2 Regulations under subsection (1)(a) may, among other things—

a provide for a description of person to be treated as if they were not a foreign power, and

b frame any such description by reference to—

i the independence of persons from other descriptions of foreign power, or

ii the interest which persons have in a newspaper enterprise.

3 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).

4 Regulations under this section may, among other things, make provision having effect on or after 13 March 2024.

^C466Chapter 4 Enforcement¶

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

^F97171 Initial undertakings: completed mergers¶

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

72 ^C466Initial enforcement orders: completed or anticipated mergers ¶

1 Subsection (2) applies where—

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

b the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct.

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

a prohibit or restrict the doing of things which the CMA considers would constitute pre-emptive action;

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

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

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

^F11763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3A Subsection (3B) applies where—

a subsection (1)(a) and (b) applies; and

b the CMA also has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

3B The CMA may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

a do anything mentioned in subsection (2)(b) to (d);

b impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

3C A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.

4 An order under this section—

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

b may be varied or revoked by another order.

^F16635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

a where the CMA has decided to make the reference concerned ^F829... —

i if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and

ii otherwise on the final determination of the reference concerned;

b where the CMA has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;

c where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and

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

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

8 In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.

73 Undertakings in lieu of references under section 22(1), 33(1), 68B or 68C ¶

1 Subsection (2) applies if the CMA considers that it is under a duty to make a reference under section 22(1) or 33(1) (disregarding the operation of section 22(3)(b) or (as the case may be) 33(3)(b) but taking account of the power of the CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).

2 The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

3 In proceeding under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.

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

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

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

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

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

b any adverse effect which has or may have resulted from it or may be expected to result from it,

accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

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

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

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

b consider the Authority’s opinion.

4 In proceeding under subsection (2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

5 An undertaking under this section—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; and

c may be released by the CMA.

6 An undertaking under this section which is in force in relation to a relevant merger situation shall cease to be in force if an order comes into force under section 75 or 76 in relation to that undertaking.

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

^C46673A ^C466Time-limits for consideration of undertakings¶

1 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—

a the day after the CMA gives the person the notice required by section 34ZA(1)(b); ^F1586...

^F1586b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 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)—

a 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

b if it considers that it might be, give notice to the person who offered the undertaking that it is considering it.

3 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).

4 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.

5 The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4).

6 The CMA may revise any such guidance and, where it does so, shall publish the revised statement.

7 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.

8 In subsection (7), “relevant person” means—

a any person carrying on any of the enterprises concerned;

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

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

9 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.

10 An extension under subsection (4) or (7) comes into force when published under section 107.

11 An extension under subsection (7) continues in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

^F148712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C46673B ^C466Section 73A: supplementary¶

1 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).

2 No more than one extension is possible under section 73A(4).

3 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).

4 Subsection (5) applies where—

a the period within which the CMA must discharge its duty under section 73A(3) is further extended,

b the further extension and at least one previous extension is made under section 73A(7), and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

5 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.

6 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.

7 But no alteration may be made by virtue of subsection (6) which results in—

a the period mentioned in section 73A(1) exceeding 5 working days;

b the period mentioned in section 73A(2) exceeding 10 working days;

c the period mentioned in section 73A(3) exceeding 50 working days;

d the period mentioned in section 73A(4) exceeding 40 working days.

8 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.

74 ^C466 Effect of undertakings under section 73¶

1 The relevant authority shall not make a reference under section 22, 33 or 45 in relation to the creation of a relevant merger situation if—

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

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

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

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

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

2 Subsections (1) and (1A) do not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the CMA or made public before any undertaking concerned was accepted.

3 For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.

4 In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.

5 In this section “relevant authority” means—

a in relation to a possible reference under section 22 , 33, 68B or 68C, the CMA; and

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

75 ^C466 Order-making power where undertakings under section 73 not fulfilled etc.¶

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

a an undertaking accepted by it under section 73(2) or (3B) has not been, is not being or will not be fulfilled; or

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

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

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

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

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

3B In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

4 An order under this section may contain—

^C1^C9^C17a anything permitted by Schedule 8; and

b such supplementary, consequential or incidental provision as the CMA considers appropriate.

5 An order under this section—

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

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

c may be varied or revoked by another order.

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

76 ^C466 Supplementary interim order-making power¶

1 Subsection (2) applies where—

a the CMA has the power to make an order under section 75 in relation to a particular undertaking and intends to make such an order; or

b the CMA has the power to make an order under section 83 in relation to a particular undertaking and intends to make such an order.

2 The CMA may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this section.

3 No order shall be made under subsection (2) unless the CMA has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under section 75 or (as the case may be) 83 is in progress or in contemplation.

4 An order under subsection (2) may—

a prohibit or restrict the doing of things which the CMA considers would prejudice the making of the order under section 75 or (as the case may be) 83;

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

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

5 An order under this section—

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

b may be varied or revoked by another order.

6 An order under this section shall, if it has not previously ceased to be in force, cease to be in force on—

a the coming into force of an order under section 75 or (as the case may be) 83 in relation to the undertaking concerned; or

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

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

Interim restrictions and powers¶

77 Restrictions on certain dealings: completed mergers¶

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

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

b no undertakings under section ^F1233... 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.

2 No relevant person shall, without the consent of the CMA —

a complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;

b make any further arrangements in consequence of that result (other than arrangements which reverse that result); or

c transfer the ownership or control of any enterprises to which the reference relates.

3 No relevant person shall, without the consent of the CMA, assist in any of the activities mentioned in paragraphs (a) to (c) of subsection (2).

4 The prohibitions in subsections (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.

5 The consent of the CMA under subsection (2) or (3)—

a may be general or special;

b may be revoked by the CMA; and

c shall be published in such manner as the CMA considers appropriate for the purpose of bringing it to the attention of any person entitled to the benefit of it.

6 Paragraph (c) of subsection (5) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.

7 Subsections (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

a a United Kingdom national;

b a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c a person carrying on business in the United Kingdom.

8 In this section “relevant person” means—

a any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;

b any subsidiary of any person falling within paragraph (a); or

c any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated.

78 Restrictions on certain share dealings: anticipated mergers¶

1 Subsection (2) applies where—

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

b no undertakings under section 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.

2 No relevant person shall, without the consent of the CMA, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.

3 The consent of the CMA under subsection (2)—

a may be general or special;

b may be revoked by the CMA; and

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

4 Paragraph (c) of subsection (3) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.

5 Subsection (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

a a United Kingdom national;

b a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c a person carrying on business in the United Kingdom.

6 In this section and section 79—

“company” includes any body corporate;
“relevant period” means the period beginning with the making of the reference concerned and ending when the reference is finally determined;
“relevant person” means—
1. any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
2. any subsidiary of any person falling within paragraph (a); or
3. any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and
“share” means share in the capital of a company, and includes stock.

^C318^C50179 Sections 77 and 78: further interpretation provisions¶

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

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

b the time within which the CMA is to prepare and publish a report under section 38 in relation to the reference has expired and no such report has been prepared and published;

c the report of the CMA under that section contains the decision that—

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

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

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

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

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

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

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

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

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

the CMA has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.

2 For the purposes of this Part the time when a reference under section 22 , 33, 68B or 68C is finally determined is—

a in a case falling within subsection (1)(a), the making of the decision concerned;

b in a case falling within subsection (1)(b), the expiry of the time concerned;

c in a case falling within subsection (1)(c), the publication of the report;

d in a case falling within subsection (1)(d), the making of the decision under section 41(2); and

e in a case falling within subsection (1)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

3 For the purposes of section 78 and subject to subsection (4) below, the circumstances in which a person acquires an interest in shares include those where—

a he enters into a contract to acquire the shares (whether or not for cash);

b he is not the registered holder but acquires the right to exercise, or to control the exercise of, any right conferred by the holding of the shares; or

c he—

i acquires a right to call for delivery of the shares to himself or to his order or to acquire an interest in the shares; or

ii assumes an obligation to acquire such an interest.

4 The circumstances in which a person acquires an interest in shares for the purposes of section 78 do not include those where he acquires an interest in pursuance of an obligation assumed before the publication by the CMA of the reference concerned.

5 The circumstances in which a person acquires a right mentioned in subsection (3)—

a include those where he acquires a right, or assumes an obligation, whose exercise or fulfilment would give him that right; but

b do not include those where he is appointed as proxy to vote at a specified meeting of a company or of any class of its members or at any adjournment of the meeting or he is appointed by a corporation to act as its representative at any meeting of the company or of any class of its members.

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

6 References to rights and obligations in subsections (3) to (5) include conditional rights and conditional obligations.

7 References in sections 77 and 78 to a person carrying on or having control of any enterprise includes a group of persons carrying on or having control of an enterprise and any member of such a group.

8 Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of sections 77 and 78 to determine whether any person or group of persons has control of any enterprise and whether persons are associated as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.

9 Section 1159 of, and Schedule 6 to, the Companies Act 2006 shall apply for the purposes of sections 77 and 78 to determine whether a company is a subsidiary of an individual or of a group of persons as they apply to determine whether it is a subsidiary of a company; and references to a subsidiary in paragraph 8 of Schedule 6 as so applied shall be construed accordingly.

80 Interim undertakings¶

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

2 The CMA may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

2A Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

2B 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.

^F4783 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 An undertaking under this section—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; and

c may be released by the CMA.

^F12536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 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.

8 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.

9 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.

10 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.

81 Interim orders¶

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

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

a prohibit or restrict the doing of things which the CMA considers would constitute pre-emptive action;

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

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

2A 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—

a do anything mentioned in subsection (2)(b) to (d);

b impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

2B 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.

^F3213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F3214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 An order under this section—

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

b may be varied or revoked by another order.

^F6276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 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.

8 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.

9 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.

Final powers¶

82 Final undertakings¶

1 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.

2 An undertaking under this section—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; and

c may be released by the CMA.

3 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.

4 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—

a section 76(1)(b) or 83 in relation to the subject-matter of the undertaking; or

b section 84 in relation to that reference.

5 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.

83 Order-making power where final undertakings not fulfilled¶

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

a an undertaking accepted by it under section 82 has not been, is not being or will not be fulfilled; or

2 The CMA may, for any of the purposes mentioned in section 41(2), make an order under this section.

3 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.

4 An order under this section may contain—

^C2^C10^C18a anything permitted by Schedule 8; and

b such supplementary, consequential or incidental provision as the CMA considers appropriate.

5 An order under this section—

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

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

c may be varied or revoked by another order.

^F8836 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

84 Final orders¶

1 The CMA may, in accordance with section 41, make an order under this section.

2 An order under this section may contain—

^C3^C11^C19a anything permitted by Schedule 8; and

b such supplementary, consequential or incidental provision as the CMA considers appropriate.

3 An order under this section—

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

b may be varied or revoked by another order.

^F4114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 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.

Public interest and special public interest cases¶

^C45385 Enforcement regime for public interest and special public interest cases¶

1 Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.

2 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.

Undertakings and orders: general provisions¶

^C290^C45386 Enforcement orders: general provisions¶

1 An enforcement order may extend to a person’s conduct outside the United Kingdom if (and only if) he is—

a a United Kingdom national;

b a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c a person carrying on business in the United Kingdom.

^C502 Nothing in an enforcement order shall have effect so as to—

a cancel or modify conditions in licences granted—

i 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

ii in respect of a design registered under the Registered Designs Act 1949 (c. 88);

by the proprietor of the patent or design; or

b 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.

^C273 An enforcement order may prohibit the performance of an agreement already in existence when the order is made.

4 Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.

5 Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.

6 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.

^C28^C51^C291^C45387 Delegated power of directions¶

1 An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—

a a person specified in the directions; or

b the holder for the time being of an office so specified in any body of persons corporate or unincorporate.

2 Directions fall within this subsection if they are directions—

a 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

b 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.

3 An enforcement order may authorise the person making the order to vary or revoke any directions so given.

4 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.

5 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.

6 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.

7 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.

8 In this section “the court” means—

a in relation to England and Wales or Northern Ireland, the High Court; and

b in relation to Scotland, the Court of Session.

^C52^C292^C45388 Contents of certain enforcement orders¶

1 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.

2 The order or any explanatory material accompanying the order shall state—

a 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;

b the date on which the order comes into force;

c the possible consequences of not complying with the order; and

d the section of this Part under which a review can be sought in relation to the order.

^C293^C45389 Acceptance and subject-matter of undertakings¶

A1 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.

^C4^C12^C201 The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

2 In this Part “enforcement undertaking” means an undertaking under section ^F1204... 73, 80 or 82 or under paragraph ^F1373... 3 or 9 of Schedule 7.

3 In this section, “appropriate authority” has the same meaning as in section 94AA.

^C319^C45390 Procedural requirements for certain undertakings and orders¶

Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.

^C294^C320^C45391 Register of undertakings and orders¶

1 The CMA shall compile and maintain a register for the purposes of this Part.

2 The register shall be kept in such form as the CMA considers appropriate.

^C533 The CMA shall ensure that the following matters are entered in the register—

a the provisions of any enforcement undertaking accepted under this Part;

b the provisions of any enforcement order made under this Part;

c the details of any variation, release or revocation of such an undertaking or order; and

d 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.

4 The duty in subsection (3) does not extend to anything of which the CMA is unaware.

5 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.

6 The CMA shall ensure that the contents of the register are available to the public—

a during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and

b subject to such reasonable fees (if any) as the CMA may determine.

7 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.

8 In subsection (5), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

Enforcement functions of CMA ¶

^C295^C321^C45392 Duty of CMA to monitor undertakings and orders¶

1 The CMA shall keep under review—

^C54a the carrying out of any enforcement undertaking or any enforcement order; and

b 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.

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

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

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

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

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

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

3 The CMA shall give ^F503... the Secretary of State such advice as it considers appropriate in relation to—

a any possible variation or release by ^F620... the Secretary of State of an enforcement undertaking accepted by ^F708... him;

b any possible new enforcement undertaking to be accepted by ^F1757... the Secretary of State so as to supersede another enforcement undertaking given to ^F1757... the Secretary of State;

c any possible variation or revocation by ^F1757... the Secretary of State of an enforcement order made by ^F1757... the Secretary of State;

d any possible enforcement undertaking to be accepted by ^F1757... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ^F1757... the Secretary of State instead of an enforcement undertaking;

e the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or

f 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.

4 The CMA shall take such action as it considers appropriate in relation to—

a any possible variation or release by it of an enforcement undertaking accepted by it;

b any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;

c any possible variation or revocation by it of an enforcement order made by it;

d 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;

e the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or

f 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.

5 The CMA shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

6 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).

7 The CMA shall—

^F398a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b give a copy of any report prepared by it under subsection (6) to the Secretary of State; and

c publish the report.

8 In this section, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

^C296^C322^C45393 Further role of CMA in relation to undertakings and orders¶

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

^F1433a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b the Secretary of State is considering whether to accept undertakings under paragraph ^F187...3 or 9 of Schedule 7.

2 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 ^F936... paragraph ^F639... 3 or 9 of Schedule 7.

3 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.

4 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 ^F630... paragraph ^F1262... 3 or 9 of Schedule 7.

5 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.

6 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.

Other¶

^C297^C323^C45394 ^C466 Rights to enforce undertakings and orders¶

^C561 This section applies to any enforcement undertaking or enforcement order.

^C292 Any person to whom such an undertaking or order relates shall have a duty to comply with it.

^C2743 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.

^C2754 Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

^C2765 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.

6 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.

^F8147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C2778 Compliance with an undertaking under paragraph ^F360... 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.

^C2789 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.

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

10 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.

^F54194A Interim undertakings and orders under this Part: penalties¶

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

94AA Enforcement of undertakings and orders: imposition of penalties¶

1 The appropriate authority may, in accordance with section 94AB, impose a penalty on a person—

a from whom the authority has accepted an enforcement undertaking, or

b to whom an enforcement order is addressed,

where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.

2 In this section and in section 94AB, “the appropriate authority” means—

a in relation to an enforcement undertaking or enforcement order made by the Secretary of State under Schedule 7, the Secretary of State;

b in relation to any other enforcement undertaking or enforcement order, the CMA.

3 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.

94AB Penalties under section 94AA: amount¶

1 A penalty under section 94AA(1) is to be such amount as the appropriate authority considers appropriate.

2 The amount must be—

a a fixed amount,

b an amount calculated by reference to a daily rate, or

c a combination of a fixed amount and an amount calculated by reference to a daily rate.

3 A penalty imposed under section 94AA(1) on a person who does not own or control an enterprise must not—

a in the case of a fixed amount, exceed £30,000;

b in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;

c 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.

4 A penalty imposed under section 94AA(1) on any other person must not—

a 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;

b 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;

c 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.

5 In imposing a penalty by reference to a daily rate—

a 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

b 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.

6 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—

a 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));

b section 114(5A) is to be read as if the words “or OFCOM” were omitted;

c section 114(12) is to be read as if, for paragraph (b), there were substituted—

7 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.

8 Before making regulations under subsection (7) the Secretary of State must consult—

a the CMA, and

b such other persons as the Secretary of State considers appropriate.

9 The Secretary of State may by regulations make provision for determining, for the purposes of this section—

a when an enterprise is to be treated as being controlled by a person;

b the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

10 Regulations under subsection (9)(b) may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;

b the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.

11 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)).

^C466^C45394B ^C466Statement of policy in relation to functions under sections 94 and 94AA¶

1 The CMA shall prepare and publish a statement of policy in relation to the exercise of functions under—

a section 94 ^F1442...; and

b section 94AA.

2 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.

3 The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.

4 The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

5 A statement or revised statement of policy may not be published under this section unless the Secretary of State approves the statement.

^F8026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C298^C453^C39295 ^C466 Rights to enforce statutory restrictions¶

1 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.

2 Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

3 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.

4 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.

5 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.

6 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.

Transferred EU merger commitments ¶

95A Transferred EU merger commitments¶

1 The CMA must—

a monitor compliance with transferred EU merger commitments; and

b take such action (if any) under subsection (3) or section 95B as it considers appropriate.

2 Any person to whom transferred EU merger commitments relate has a duty to comply with those commitments.

3 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.

4 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.

5 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.

6 In this Part “transferred EU merger commitments” means EU merger commitments—

a 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

b which have not been waived or substituted by the European Commission.

7 In this section—

“Article 95(2) transfer decision” means an instrument issued by the European Commission in accordance with Article 95(2) of the EU withdrawal agreement transferring responsibility for the monitoring and enforcement of EU merger commitments to the CMA;
“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.

8 So far as the context permits or requires, transferred EU merger commitments are to be treated for the purposes of this Part as if—

a any reference to the area of the European Union or of the European Economic Area included the United Kingdom;

b any reference to the internal market included the United Kingdom;

c any reference to a member State included the United Kingdom;

d any reference to a party to the EEA agreement included the United Kingdom.

9 Subsection (8) is subject to any different provision made by the Article 95(2) transfer decision in question.

95B Power of directions in connection with transferred EU merger commitments¶

1 The CMA may give directions falling within subsection (2) to—

a a person specified in the directions; or

b the holder for the time being of an office so specified in any body of persons corporate or unincorporate.

2 Directions fall within this subsection if they are directions—

a 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

b 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.

3 The CMA may vary or revoke any directions so given.

4 Directions under this section may extend to a person’s conduct outside the United Kingdom if (and only if) the person is—

a a person bound by the transferred EU merger commitments concerned;

b a United Kingdom national;

c a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

d a person carrying on business in the United Kingdom.

5 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.

6 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.

7 An order under subsection (5) or (6) may only be made on the application of the CMA.

8 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.

9 In this section “the court” means—

a in relation to England and Wales or Northern Ireland, the High Court; and

b in relation to Scotland, the Court of Session.

^C466Chapter 5 Supplementary¶

Merger notices¶

96 ^C466 Merger notices¶

1 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.

2 Any such notice (in this Part a “merger notice”)—

a shall be in the prescribed form;

aa shall contain the prescribed information; and

b shall state that the existence of the proposal has been made public.

2A 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.

^F8843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F8844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 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.

6 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.

^F79397 ^C466 Period for considering merger notices¶

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

^F136398 ^C466 Section 97: supplementary¶

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

99 ^C466 Certain functions of CMA in relation to merger notices¶

1 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—

a the existence of the proposal;

b the fact that the merger notice has been given; and

c the date on which the period for considering the notice may expire;

to the attention of those whom the CMA considers would be affected if the arrangements were carried into effect.

^F17272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F17273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F17274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 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—

a 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;

b the CMA suspects that it is not proposed to carry the notified arrangements into effect; or

c 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; ^F1134...

^F1134d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—

a any person who, for the purposes of section 127, is associated with him; or

b any subsidiary of the person who gave the merger notice or of any person so associated with him.

100 ^C466 Exceptions to protection given by merger notices¶

1 Sections 22(3)(za) and 33(3)(za) do not prevent any reference being made under section 22 , 33, 68B or 68C if—

a 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);

^F1374b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c any information (whether prescribed information or not) that—

i is, or ought to be, known to the person who gave the merger notice or any connected person; and

ii is material to the notified arrangements;

is not disclosed to the CMA ^F1562...;

d 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;

e 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;

f the merger notice is withdrawn; or

g 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.

2 Subsection (3) applies where—

a 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

b sections 22(3)(za) and 33(3)(za) do not prevent such a reference in relation to the last of those transactions.

3 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—

a that date; or

b 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).

4 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.

5 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.

101 ^C466 Merger notices: regulations¶

1 The Secretary of State may make regulations for the purposes of sections 96 to 100.

2 The regulations may, in particular—

a provide for ^F471... 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;

b 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;

^F1747c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1747d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1747e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1747f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

102 ^C466 Power to modify sections 97 to 101¶

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.

General duties in relation to references¶

^C299103 ^C466 Duty of expedition in relation to references under section 45 or 62¶

^F6581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 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.

^C300^C466^C424104 ^C466 Certain duties of relevant authorities to consult¶

1 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.

2 The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.

3 In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

4 In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—

a any restrictions imposed by any timetable for making the decision; and

b any need to keep what is proposed, or the reasons for it, confidential.

5 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.

6 In this section—

“the relevant authority” means the CMA, the Commission or the Secretary of State;
“relevant decision” means—
1. in the case of the CMA, any decision by the CMA—
  1. as to whether to make a reference under section 22(1), 33(1) , 68B or 68C or accept undertakings under section 73 instead of making such a reference; or
  2. to vary under section 37 a reference under section 22, 33, 68B or 68C ; or
  3. on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63;
2. ^F1036...
3. in the case of the Secretary of State, any decision by the Secretary of State—
  1. as to whether to make a reference under section 45 or 62; or
  2. to vary under section 49 or (as the case may be) 64 such a reference; and
“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.

^C428^C466^C324104A ^C428^C466Public consultation in relation to media mergers¶

1 Subsection (2) applies where the CMA—

a is preparing—

i a report under section 50 on a reference which specifies a media public interest consideration; or

ii a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and

b is not under a duty to disregard the consideration concerned.

2 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.

3 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.

Information and publicity requirements¶

^C301105 General information duties of CMA ¶

1 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.

1A 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.

2 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.

3 The CMA shall give the ^F858... OFCOM—

a such information in its possession as ^F334...OFCOM may reasonably require to enable the ^F334...OFCOM to carry out its functions under this Part; and

b any other assistance which the ^F1715... 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.

3A OFCOM shall give the CMA —

a such information in their possession as the CMA may reasonably require to enable the CMA to carry out its functions under this Part; and

b 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.

4 The CMA shall give the OFCOM any information in its possession which has not been requested by the ^F1017... OFCOM but which, in the opinion of the CMA, would be appropriate to give to the ^F1017... OFCOM for the purpose of assisting it in carrying out its functions under this Part.

4A 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.

5 The CMA and OFCOM shall give the Secretary of State—

a 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

b 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.

6 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.

7 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).

7A OFCOM shall have regard to any information given to them under subsection (3) or (4); ^F836...

8 Any direction given under subsection (5)—

a shall be in writing; and

b may be varied or revoked by a subsequent direction.

106 Advice and information about references under section 22, 33, 68B or 68C ¶

1 ^F1609... The CMA shall prepare and publish general advice and information about—

a the making and consideration by it of references under section 22 , 33, 68B or 68C, and

b the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.

2 The CMA may at any time publish revised, or new, advice or information.

^F13133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Advice and information published under this section shall be prepared with a view to—

a explaining relevant provisions of this Part to persons who are likely to be affected by them; and

b indicating how the CMA or (as the case may be) the Commission expects such provisions to operate.

6 Advice (or information) published by virtue of subsection (1) ^F1539... 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.

7 Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.

8 In preparing any advice or information under this section, the CMA shall consult such persons as it considers appropriate.

^F2899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

106A Advice and information in relation to media mergers¶

1 The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C).

2 The Secretary of State may at any time publish revised, or new, advice or information.

3 Advice or information published under this section shall be prepared with a view to—

a explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and

b indicating how the Secretary of State expects this Part to operate in relation to such considerations.

4 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.

5 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.

^C325106B General advisory functions of OFCOM¶

1 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—

a any report made in such a case by the CMA under section 50 or 65; and

b the taking by the Secretary of State of enforcement action under Schedule 7.

2 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.

3 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.

107 Further publicity requirements¶

1 The CMA shall publish—

a 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;

aa 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));

aaa any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;

ab any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3);

ac any extension by it under section 34ZB of the initial period;

ad any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b);

^F1030ae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F817af . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F431ag . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F506ah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b any variation made by it under section 37 of a reference under section 22 , 33, 68B or 68C;

c 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;

^F498d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

e any enforcement order made by it under section 72 ^F1324... or paragraph 2 of Schedule 7;

ea any notice given by it under section 73A(2)(b);

eb any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73;

ec any decision made by it to cancel an extension as mentioned in section 73A(11)(b);

f any variation, release or revocation of an order mentioned in paragraph (e)

^F1084g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1084h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .; and

i any notice given by it under section 96(2A).

2 The CMA shall also publish—

a any cancellation by it under section 37(1) of a reference under section 33 or 68C;

b 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;

c any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;

d any decision made by it to cancel an extension as mentioned in section 39(7A)(b) or (8)(b);

e 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;

ea any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged;

eb any decision made by it to cancel an extension as mentioned in section 41A(7)(b);

f 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;

g 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;

h any decision made by it under section 49(1) to treat—

i 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

ii 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;

i any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;

j any decision made by it under section 51(7A)(b) or (8)(b) to cancel such an extension;

k 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;

l any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;

m 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;

n any decision made by it as mentioned in section 76(6)(b);

o any enforcement order made by it under section 76 or 81;

p any enforcement undertaking accepted by it under section 80;

q any variation, release or revocation of such an order or undertaking; and

r any decision made by it to dispense with the requirements of Schedule 10.

3 The Secretary of State shall publish—

a any intervention notice or special intervention notice given by him;

b any report of the CMA under section 44 or 61 which has been received by him;

ba any report of OFCOM under section 44A or 61A which has been received by him;

c any reference made by him under section 45 or 62 or any decision made by him not to make such a reference;

d any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;

e any report of the CMA under section 50 or 65 which has been received by him;

f 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;

g any notice given by him under section 56(1);

ga any foreign state intervention notice given by the Secretary of State;

gb any report of the CMA under section 70B which the Secretary of State has received;

^F1554h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1554i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

j any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and

k any decision made by him to dispense with the requirements of Schedule 10.

4 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.

5 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.

6 Subsections (4) and (5) shall not apply in relation to—

a any decision published under subsection (1)(aaa), or

b any information published under subsection (1)(c).

7 The Secretary of State shall publish his reasons for—

a any decision made by him under section 54(2) or 66(2); or

b any decision to make an order under section 58(3) or vary or revoke such an order.

8 Such reasons may be published after—

a in the case of subsection (7)(a), the publication of the decision concerned; and

b in the case of subsection (7)(b), the making of the order or of the variation or revocation;

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.

9 The Secretary of State shall publish—

a 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

b 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.

10 The Secretary of State shall publish—

a 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

b 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.

11 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

12 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.

^C302108 Defamation¶

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.

Investigation powers¶

^C142^C141^C126^C125^C117^C109^C102^C94^C84^C73^C70^C67^C66^C65^C64^C63^C62^C61^C60^C59^C58^C57^C30^C303^C470^C400^C402^C507^C495^C395^C464^C384^C394^C378^C516^C430^C396^C367^C459^C417^C521^C391^C438^C474^C425^C409^C439^C455^C423^C463^C519^C450^C486109 Attendance of witnesses and production of documents etc.¶

A1 For the purposes of this section, the permitted purposes are the following—

a 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;

b 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.

1 The CMA may, for a permitted purpose, give notice to any person requiring him—

a to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and

b to give evidence to the CMA or a person nominated by the CMA for the purpose.

2 The CMA may, for a permitted purpose, give notice to any person requiring him—

a to produce any documents which—

i are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and

ii are in that person’s custody or under his control; and

b to produce them at a time and place so specified and to a person so specified.

3 The CMA may, for a permitted purpose, give notice to any person who carries on any business requiring him—

a to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and

b to supply it at a time and place, and in a form and manner, so specified and to a person so specified.

4 A notice under this section shall—

a specify the permitted purpose for which the notice is given, including the function or functions in question; and

b include information about the possible consequences of not complying with the notice.

5 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.

6 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.

7 No person shall be required under this section—

a 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

b to supply any information which he could not be compelled to supply in evidence in such proceedings.

8 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.

8A In subsection (A1), “enforcement functions” means—

a in relation to the CMA—

i functions conferred by virtue of section 87 on the CMA by enforcement orders;

ii functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

iii functions of the CMA under or by virtue of section 75, 76, 83 or 92 in relation to enforcement undertakings or enforcement orders;

b in relation to the Secretary of State—

i functions conferred by virtue of section 87 on the Secretary of State by enforcement orders;

ii 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;

iii 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.

9 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.

10 In this section “the court” means—

a in relation to England and Wales or Northern Ireland, the High Court; and

b in relation to Scotland, the Court of Session.

109A Transferred EU merger commitments: witnesses, documents etc¶

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.

109B Extra-territorial application of notices under section 109¶

1 This section applies to the exercise of the CMA’s power to give a person a notice under section 109(2) or (3).

2 The power is exercisable so as to—

a give the notice to a person who is outside the United Kingdom (subject to subsection (3));

b require the production of documents, or the supply of information, held outside the United Kingdom.

3 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—

a 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

b the person has a UK connection.

4 For the purposes of subsection (3)(b), a person has a UK connection if the person—

a is a United Kingdom national;

b is an individual who is habitually resident in the United Kingdom;

c is a body incorporated under the law of any part of the United Kingdom;

d carries on business in the United Kingdom.

5 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.

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1 The CMA may impose a penalty on a person in accordance with section 111 where the CMA considers that—

a the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109;

b the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 109(6);

c 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.

1A The appropriate authority may impose a penalty on a person in accordance with section 111 where the authority considers that—

a 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;

b 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.

1B In this section, and in sections 111 to 117, “the appropriate authority” means—

a the CMA;

b the Secretary of State;

c OFCOM.

1C 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.

2 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.

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9 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))—

a 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;

b 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.

10 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.

110A ^C411^C374Restriction on powers to impose penalties under section 110¶

1 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.

2 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.

3 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.

4 Except where subsection (3) applies, the relevant day is the day determined in accordance with the following provisions of this section.

5 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.

6 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).

7 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.

8 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.

8A 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).

9 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.

10 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—

a 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—

i 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

ii the relevant person has appeared as a witness in accordance with the requirements of the CMA;

b 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

c 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.

11 In subsection (10), “the relevant person” means the person given the notice under section 109.

110B ^C440Section 110A: supplementary provision¶

1 For the purpose of section 110A(5), the CMA finally decides whether to make a reference under section 22 , 33, 68B or 68C if—

a the CMA decides that the duty to make such a reference applies;

b the CMA accepts an undertaking under section 73;

c the CMA decides not to make such a reference (otherwise than because it has accepted an undertaking under section 73);

d 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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f 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.

2 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—

a in a case falling within subsection (1)(a), the making of the decision that the duty to make such a reference applies;

b in a case falling within subsection (1)(b), the acceptance of the undertaking;

c in a case falling within subsection (1)(c), the making of the decision not to make the reference;

d in a case falling within subsection (1)(d), the expiry of the initial period;

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f in a case falling within subsection (1)(f), the expiry of the period in question.

3 For the purpose of section 110A(7), the Secretary of State finally decides whether to make a reference under section 45 or 62 if—

a the Secretary of State makes such a reference;

b the Secretary of State accepts an undertaking under paragraph 3 of Schedule 7;

c 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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4 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—

a in a case falling within subsection (3)(a), the making of the reference;

b in a case falling within subsection (3)(b), the acceptance of the undertaking;

c in a case falling within subsection (3)(c), the making of the decision not to make the reference;

^F933d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 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.

6 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.

^C178^C177^C176^C175^C174^C173^C172^C171^C170^C169^C168^C146^C145^C132^C129^C119^C111^C104^C96^C85^C80^C75^C74^C470^C456^C509^C362^C466^C508^C434^C377^C377^C426^C426^C508111 ^C466 Penalties : amount ¶

1 A penalty imposed under section 110(1) or (1A) shall be of such amount as the appropriate authority considers appropriate.

2 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.

3 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.

4 A penalty imposed under section 110(1) or (1A) on a person who does not own or control an enterprise must not—

a in the case of a fixed amount, exceed £30,000;

b in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; and

c 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 ^F915....

4A A penalty imposed under section 110(1) or (1A) on any other person must not—

a 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;

c 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.

^C377^C4265 In imposing a penalty by reference to a daily rate—

a 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

b 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—

i the day on which the requirement of the notice concerned under section 109 is satisfied ^F692...;^F328...

ii ^F560... the day which is the relevant day in the case in question for the purposes of section 110A.

iii 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.

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7A 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.

8 Before making regulations under subsection (7A) the Secretary of State shall consult the CMA , OFCOM and such other persons as he considers appropriate.

9 The Secretary of State may by regulations make provision for determining, for the purposes of this section—

a when an enterprise is to be treated as being controlled by a person;

b the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

10 Regulations under subsection (9)(b) may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;

b the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.

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A1 Before the appropriate authority imposes a penalty under section 110(1) or (1A), the authority must give the person concerned a provisional penalty notice.

A2 A provisional penalty notice must—

a contain a draft of the final penalty notice the appropriate authority is minded to give to the person under subsection (1),

b invite the making of representations by the person to the authority about the proposed final penalty notice, and

c specify the means by which, and the time by which, such representations must be made.

A3 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).

1 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.

2 The final penalty notice shall state—

a that the appropriate authority has imposed a penalty on the person concerned;

b 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;

c 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;

d the act or omission in question which the appropriate authority considers gave it the power to impose the penalty;

e any other facts which the appropriate authority considers justify the imposition of a penalty and the amount or amounts of the penalty;

f the manner in which, and place at which, the penalty is required to be paid to the appropriate authority;

g 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;

h 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

i 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.

3 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.

3A 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.

4 A final penalty notice shall be given by—

a serving a copy of the notice on the person on whom the penalty was imposed; and

b publishing the notice.

5 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.

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1 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).

2 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.

3 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.

4 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.

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1 This section applies if a person on whom a penalty is imposed under section 110(1) or (1A) is aggrieved by—

a the imposition or nature of the penalty;

b the amount or amounts of the penalty; or

c 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.

2 The person aggrieved may apply to the Competition Appeal Tribunal.

3 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—

a the period of 28 days starting with the day on which the copy was served on the person concerned; or

b such other period as the Secretary of State may by order specify.

4 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—

a the period of 28 days starting with the day on which the person concerned is notified of the decision; or

b such other period as the Secretary of State may by order specify.

5 On an application under this section, the Competition Appeal Tribunal may—

a quash the penalty;

b substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or

c in a case falling within subsection (1)(c), substitute for the date or dates imposed by the appropriate authority an alternative date or dates;

if it considers it appropriate to do so.

5A 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.

6 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.

7 Where an application has been made under this section—

a the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and

b the appropriate authority may agree to reduce the amount or amounts of the penalty in settlement of the application.

8 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.

9 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.

10 An appeal lies to the appropriate court—

a on a point of law arising from a decision of the Tribunal in proceedings under this section; or

b from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.

11 An appeal under subsection (10)—

a may be brought by a party to the proceedings before the Tribunal; and

b requires the permission of the Tribunal or the appropriate court.

12 In this section

a “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.

b “the relevant guidance” means—

i 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;

ii 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.

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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—

a no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or

b any such application which has been made has been determined, withdrawn or otherwise dealt with,

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.

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1 The CMA must prepare and publish a statement of policy in relation to—

a the imposition of penalties under section 110, and

b the enforcement of notices under section 109.

2 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).

3 The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.

4 The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

5 A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.

116A Intentional destruction etc of documents¶

1 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.

2 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.

3 A person who commits an offence under subsection (1) is liable—

a on summary conviction, to a fine not exceeding the statutory maximum;

b on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

4 In this section—

a 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;

b the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

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1 A person commits an offence if—

a he supplies any information to the appropriate authority in connection with any of their functions under this Part;

b the information is false or misleading in a material respect; and

c 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.

2 A person commits an offence if he—

a supplies any information to another person which he knows to be false or misleading in a material respect; or

b recklessly supplies any information to another person which is false or misleading in a material respect;

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.

2A 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.

3 A person who commits an offence under subsection (1) or (2) shall be liable—

a on summary conviction, to a fine not exceeding the statutory maximum;

b on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.^F1046

Reports¶

^C309118 ^C518^C466 Excisions from reports¶

1 Subsection (2) applies where the Secretary of State is under a duty to publish—

a a report of the CMA under section 44 or 61;

aa a report of OFCOM under section 44A or 61A;^F1299...

b a report of the CMA under section 50 or 65 , or

c a report of the CMA under section 70B.

2 The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.

3 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.

^C5184 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).

5 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.

^C310119 ^C466 Minority reports of CMA¶

1 Subsection (2) applies where, on a reference to the CMA under this Part, a member of a group constituted in connection with the reference ^F1213..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.

2 The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Further provision about media mergers¶

^C327119A Other general functions of OFCOM in relation to this Part¶

1 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.

2 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.

3 In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research.

4 Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.

119B Monitoring role for CMA in relation to media mergers¶

1 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).

2 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.

3 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).

Miscellaneous¶

^C311^C408120 ^C466^C398 Review of decisions under Part 3¶

1 Any person aggrieved by a decision mentioned in subsection (1A) may apply to the Competition Appeal Tribunal for a review of that decision.

1A The decisions are—

a 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;

aa a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;

b a decision of the CMA under this Part in connection with transferred EU merger commitments.

c 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.

2 For this purpose “decision”—

a does not include a decision to impose a penalty under section 94AA(1) or 110(1) or (1A); but

b includes a failure to take a decision permitted or required by

i this Part in connection with a reference or possible reference or transferred EU merger commitments

ia Chapter 3A of this Part;

ii 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.

3 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.

4 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.

5 The Competition Appeal Tribunal may—

a dismiss the application or quash the whole or part of the decision to which it relates; and

^C398b 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.

^C337^C349^C350^C5116 An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

^C337^C349^C350^C5117 An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

^C337^C349^C350^C5118 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
“Tribunal rules” has the meaning given by section 15(1).

121 ^C466 Fees¶

1 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, ^F43. . . and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).

2 An order under this section may, in particular, provide for fees to be payable—

a in respect of a merger notice; or

b ^F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c on the occurrence of any event specified in the order.

3 The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—

a 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;

b 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;

c the decision by the Secretary of State in relation to a possible reference under section 62 that—

i 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

ii one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

d 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.

4 An order under this section may, in particular, contain provision—

a for ascertaining the persons by whom fees are payable;

b specifying whether any fee is payable to the Secretary of State or the CMA;

c for the amount of any fee to be calculated by reference to matters which may include—

i ^F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii ^F46. . . , the value of the turnover of the enterprises concerned;

d as to the time when any fee is to be paid; and

e for the repayment by the Secretary of State or the CMA of the whole or part of any fee in specified circumstances.

5 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.

6 Provision made by virtue of subsection (5) may, in particular, include provision—

a as to the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;

b as to the date or dates by reference to which an enterprise’s turnover is to be determined;

c restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.

7 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)).

8 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 ^F47. . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.

9 Fees paid to the Secretary of State or the CMA under this section shall be paid into the Consolidated Fund.

10 ^F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F841122 ^C466 Primacy of EU law¶

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

123 ^C466 Power to alter conditions for a relevant merger situation ¶

1 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.

2 The Secretary of State shall not exercise his power under subsection (1)—

a to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;

b to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.

c to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.

3 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.

3A 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.

4 Before making an order under this section the Secretary of State shall consult the CMA.

5 An order under this section may provide for the delegation of functions to the decision-making authority.

Other¶

^C312124 ^C466 Orders and regulations under Part 3¶

1 Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.

2 Any power of the Secretary of State to make an order or regulations under this Part—

a may be exercised so as to make different provision for different cases or different purposes; and

b includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

3 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.

4 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), ^F1135... 73B(6)^F307... 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.

5 ^F1564... 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) ^F329..., 114(3)(b) or (4)(b) or 121 or Schedule 7 is subject to the negative procedure.

5A Regulations made under section 68A, 94AB(9) or 111(9) are subject to the negative procedure.

6 An order made by the Secretary of State under section 34, 44(11), section 59(6A)(b), ^F290... 102, 123 or 128(6) is subject to the affirmative procedure.

6A Regulations made under section 70G, 94AB(7) or 111(7A), or paragraph 15 of Schedule 6B, are subject to the affirmative procedure.

6B 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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.

^C264^C478125 ^C466 Offences by bodies corporate¶

1 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—

a a director, manager, secretary or other similar officer of the body corporate, or

b a person purporting to act in such a capacity,

he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.

2 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.

3 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.

4 In subsection (3) “partner” includes a person purporting to act as a partner.

^C313^C452126 Service of documents by the CMA, OFCOM or the Secretary of State¶

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

2 The document may be served by—

a delivering it to the person,

b leaving it at the person’s proper address,

c sending it by post to the person at that address, or

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

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

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

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

6 A person’s proper address is—

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

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

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

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

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

c in the case of an unincorporated body or association, the principal office of the body or association;

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

8 A person’s email address is—

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

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

9 In the case of—

a a body corporate registered outside the United Kingdom,

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

c any other body with offices outside the United Kingdom,

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

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

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

^C314^C328^C505^C533^C530127 Associated persons¶

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

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

aa for the purposes of section 58(2C); ^F1425...

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

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

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

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

4 For the purposes of this section—

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

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

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

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

shall be regarded as associated with one another.

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

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

^C315128 ^C466 Supply of services and market for services etc.¶

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

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

3 The supply of services includes—

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

b rendering services to order;

c the provision of services by making them available to potential users.

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

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

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

^C316129 ^C466 Other interpretation provisions¶

1 In this Part, unless the context otherwise requires—

“action” includes omission; and references to the taking of action include references to refraining from action;
“agreement” means any agreement or arrangement, in whatever way and whatever form it is made, and whether it is, or is intended to be, legally enforceable or not;
“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;
“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;
^F1465...
“consumer” means any person who is—
1. a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or
2. a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;
and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
“customer” includes a customer who is not a consumer;
^F1699...
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
“enterprise” means the activities, or part of the activities, of a business;
“the European Merger Regulations” means Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997;
“foreign state intervention notice” means a notice under section 70A(1);
“foreign state newspaper merger situation” is to be interpreted in accordance with section 70A(3);
“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;
“modify” includes amend or repeal;
“notice” means notice in writing;
“price” includes any charge or fee (however described);
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;
“subsidiary” has the meaning given by section 1159 of the Companies Act 2006 (c. 6);
“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person;
“the UK financial system” means the financial system in the United Kingdom; and
“United Kingdom national” means an individual who is—
1. a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
2. a person who under the British Nationality Act 1981 (c. 61) is a British subject; or
3. a British protected person within the meaning of that Act.
“working day” means any day other than—
1. a Saturday or Sunday, or
2. a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

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

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

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

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

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

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

130 ^C466 Index of defined expressions¶

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)
^F1096. . .	^F1096. . .
The CMA	Section 273
^F781. . .	^F781. . .
Consumer	Section 129(1)
Customer	Section 129(1)
Date of reference	Section 39(9)
The decision-making authority	Section 22(7)
^F1621. . .	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)
^F1096. . .	^F1096. . .
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)
^F1409. . .	^F1409. . .
United Kingdom national	Section 129(1)
Working day	Section 129(1)

^C43^C42^C41^C40^C39^C38^C36^C37^C469^C520^C479^C359^C529^C431^C358^C522^C451^C399^C420^C462^C517^C523^C370Part 4 Market Studies and Market Investigations¶

^C359^C529^C431^C358^C522^C451^C399^C420^C462^C517Chapter 1 Market Studies and market investigation references¶

Market studies¶

^C498^C475^C385^C454^C526^C441^C497^C432^C360^C492^C473^C436^C491^C465^C467 130A Duty to publish market study notice¶

1 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”).

2 The purposes are—

a 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

b to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects.

3 A market study notice shall, in particular, specify—

a the matter in relation to which the CMA is proposing to carry out its functions under section 5;

b the period during which representations may be made to the CMA in relation to the matter; and

c the dates by which the CMA is required to comply with the requirements imposed on it by sections 131A and 131B.

Making of references¶

131 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Power of CMA to make references¶

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

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

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

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

c any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services.

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

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

4 No reference shall be made under this section if—

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

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

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

6 In this Part—

“cross-market reference” means a reference under this section which falls within subsection (2A) or a reference under section 132 which falls within subsection (3A) of that section (and see section 140A);
“market in the United Kingdom” includes—
1. 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
2. any market which operates only in a part of the United Kingdom;
“market investigation reference” means a reference under this section or section 132 or 140A(6);
“ordinary reference” means a reference under this section or section 132 which is not a cross-market reference (and see section 140A);

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

^C359^C529^C431^C358^C522^C451^C399^C420^C462131A ^C359^C529^C431^C358^C522^C451^C399^C420^C462Decisions about references under section 131: consultation¶

1 This section applies to a case where the CMA has published a market study notice and—

a the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or

b 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.

2 The CMA shall—

a publish notice of the proposal concerned; and

b consult the relevant persons about the proposal, in such manner as it considers practicable, before deciding whether to make a reference.

3 The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious.

4 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.

5 In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal.

6 In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to—

a the restrictions imposed by the time-table for making the decision (see section 131B); and

b any need to keep what is proposed, or the reasons for it, confidential.

^C359^C529^C431^C358^C522^C451^C399^C420^C462131B ^C359^C529^C431^C358^C522^C451^C399^C420^C462Market studies and the making of decisions to refer: time-limits etc¶

^F15551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 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—

a the findings of the CMA in relation to the matter specified in the notice; and

b the action (if any) which the CMA proposes to take , or has taken, in relation to the matter.

5 In a case to which section 131A applies, the market study report shall, in particular, contain—

a 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;

b the CMA's reasons for the decision; and

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

6 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.

7 Subsections (4) to (6) are subject to section 140A (duty of Secretary of State to refer in public interest intervention cases).

8 Where the CMA—

a has published a market study notice, and

b has decided not to make a reference under section 131 in relation to the matter specified in the notice,

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.

9 This subsection applies where—

a 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

b there has been a material change in circumstances since the preparation of the report.

^C359^C529^C431^C358^C522^C451^C399^C420^C462131C ^C359^C529^C431^C358^C522^C451^C399^C420^C462Time-limits under section 131B: supplementary¶

1 The Secretary of State may by order amend section 131B so as to alter one or more of the following periods—

^F688a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period.

2 But no alteration may be made by virtue of subsection (1) which results in—

^F1613a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b the period for the time being mentioned in subsection (4) exceeding 12 months.

3 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.

132 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Ministerial power to make references¶

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

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

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

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

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

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

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

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

4 No reference shall be made under this section if—

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

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

5 In this Part “the appropriate Minister” means—

a the Secretary of State; ^F1242...

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

c the Scottish Ministers and the Secretary of State acting jointly; or

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

133 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Contents of references¶

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

a the enactment under which it is made;

b the date on which it is made; ^F1331...

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

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

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

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

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

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

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

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

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

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

Determination of references¶

133A Functions to be exercised by CMA groups¶

1 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—

a sections 134 to 137, except for section 135(1);

aa 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);

b sections 140B to 145, 148, 148A and 151;

ba section 154A, so far as relating to undertakings in lieu of a report;

c sections 157 and 158;

d section 159;

e section 160, except for subsection (6) of that section;

f section 161, except for subsection (5) of that section;

fa section 161C;

g section 162(4), so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;

h section 164(2)(b), so far as relating to an enforcement order made on behalf of the CMA by the group;

i sections 167 and 167A, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;

j section 168;

k 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;

l section 172, so far as relating to anything done on behalf of the CMA by the group;

m 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;

n sections 174A to 174D, so far as relating to a notice given under section 174 on behalf of the CMA by the group;

o section 179(5)(b), so far as relating to a decision of the group;

p 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.

2 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—

za section 154A, so far as relating to undertakings in lieu of a report;

a section 160 and Schedule 10, so far as relating to the making of an order under section 160;

b 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;

c section 162(4);

ca section 162B;

d section 164(2)(b);

e sections 167 and 167A.

^C48134 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Questions to be decided on market investigation references¶

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

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

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

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

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

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

b a combination of such features.

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

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

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

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

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

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

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

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

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

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

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

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

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

b less innovation in relation to such goods or services.

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

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

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

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

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

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

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

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

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

135 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Variation of market investigation references¶

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

2 The Office of Fair Trading^F961... appropriate Minister shall consult the CMA before varying any such reference made by him.

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

^F2774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

136 Investigations and reports on market investigation references¶

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

2 The report shall, in particular, contain—

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

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

b its reasons for its decisions; and

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

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

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

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

^F15086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 In this Part “relevant sectoral enactment” means—

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

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

c in relation to the Water Services Regulation Authority , section 31 of the Water Industry Act 1991 (c. 56);

d ^F102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

f ^F103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

^F199i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

8 In this Part “relevant sectoral regulator” means the Director General of Telecommunications , the Gas and Electricity Markets Authority, the Water Services Regulation Authority, ^F104. . . , the Office of Rail and Road, the Financial Conduct Authority,^F105. . . , the Civil Aviation Authority or the Office of Communications, the Northern Ireland Authority for Utility Regulation ^F916... or the Payment Systems Regulator.

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

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

137 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Time-limits for market investigations and reports¶

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

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

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

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

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

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

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

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

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

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

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

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

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

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

138 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Duty to remedy adverse effects¶

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

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

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

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

3 The decisions of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the CMA otherwise has a special reason for deciding differently.

4 In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.

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

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

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

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

^C359^C529^C431^C358^C522^C451^C399^C420^C462138A ^C359^C529^C431^C358^C522^C451^C399^C420^C462Time-limits for discharging duty under section 138¶

A1 Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA—

a has begun an implementation trial under section 161C, or

b 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.

A2 Subsection (1) applies in relation to any other adverse effect on competition.

A3 Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).

1 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.

2 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.

3 The CMA may extend the period within which its duty under section 138(2) is required to be discharged if it considers that—

a 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

b the failure is preventing the CMA from properly discharging its duty under section 138(2).

4 An extension under subsection (2) or (3) shall come into force when published under section 172.

5 An extension under subsection (3) continues in force until—

a the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

b the CMA publishes its decision to cancel the extension.

^C359^C529^C431^C358^C522^C451^C399^C420^C462138B ^C359^C529^C431^C358^C522^C451^C399^C420^C462Section 138A: supplementary¶

1 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).

2 No more than one extension is possible under section 138A(2).

3 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).

4 Subsection (5) applies where—

a the period within which the CMA shall discharge its duty under section 138(2) is further extended;

b the further extension and at least one previous extension is made under section 138A(3); and

c the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

5 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.

6 The Secretary of State may by order amend section 138A so as to alter one or more of the following periods—

a the period of 6 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;

b the period of 4 months mentioned in subsection (2) or any period for the time being there mentioned in substitution for that period.

7 But no alteration shall be made by virtue of subsection (6) which results in—

a the period for the time being mentioned in section 138A(1) exceeding 6 months; or

b the period for the time being mentioned in section 138A(2) exceeding 4 months.

8 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.

^C359^C529^C431^C358^C522^C451^C399^C420^C462Chapter 2 Public interest cases¶

Intervention notices¶

139 Public interest intervention by Secretary of State¶

A1 This section applies where—

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

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

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

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

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

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

c the making of such a reference in relation to the matter; or

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

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

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

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

c the making of such a reference in relation to the matter.

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

a the CMA is considering whether to accept—

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

ii an undertaking varying or superseding any such undertaking;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Intervention notices under section 139(1)¶

140 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Intervention notices under section 139(1)¶

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

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

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

c the public interest consideration or considerations which are, or may be, relevant to the matter; and

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

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

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

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

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

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

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

c at least 24 weeks has elapsed since the giving of the notice;

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

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

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

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

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

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

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

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

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

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

4D In a case to which this subsection applies—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c in a case falling within subsection (5)(c), the publication of the report concerned; and

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

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

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

140A Section 139(1) intervention notices: Secretary of State's duty to refer¶

1 This section applies where—

a the CMA has prepared a market study report in relation to a matter within the period permitted by section 131B(4);

b 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

c 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.

2 This section also applies where—

a 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;

b 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

c an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA makes that decision.

3 The CMA—

a shall not exercise the power under section 131 to refer the matter;

b 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

c in a case falling within subsection (2), shall give to the Secretary of State a document containing—

i its decision and the reasons for its decision; and

ii such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision.

4 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.

5 Where the Secretary of State decides that there is no relevant public interest consideration—

a 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

b 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.

6 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.

7 The Secretary of State shall specify in a reference made under subsection (6)—

a the relevant public interest consideration or considerations; and

b whether the reference is a restricted PI reference or a full PI reference (as to which, see sections 141 and 141A respectively).

8 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.

9 For the purposes of this Part, a reference under subsection (6) is to be treated—

a in a case where the decision of the CMA was that it should make an ordinary reference, as an ordinary reference;

b in a case where the decision of the CMA was that it should make a cross-market reference, as a cross-market reference.

10 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.

11 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.

12 In this Part—

“full PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a full PI reference;
“restricted PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a restricted PI reference.

140B Variation of restricted PI references and full PI references¶

1 The Secretary of State may at any time vary a restricted PI reference or a full PI reference.

2 The Secretary of State shall consult the CMA before varying any such reference.

3 But subsection (2) does not apply if the CMA requested the variation concerned.

4 No variation under this section is capable of altering the public interest consideration or considerations specified in the reference.

^C49141 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Restricted PI references: questions to be decided by CMA¶

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

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

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

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

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

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

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

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

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

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

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

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

141A Full PI references: questions to be decided by CMA¶

1 This section applies where the Secretary of State makes a full PI reference.

3 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.

4 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.

5 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—

a 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;

b whether the CMA should recommend the taking of other action by the Secretary of State, or action by persons other than itself and the Secretary of State, for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned; and

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

6 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))—

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

7 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.

8 In deciding the questions mentioned in subsection (5), the CMA shall, in particular, have regard to—

a the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and

b any detrimental effects on customers so far as resulting from those effects.

9 In deciding the questions mentioned in subsection (6), the CMA shall, in particular, have regard to—

a the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned; and

b any detrimental effects on customers so far as resulting from it.

10 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.

11 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.

141B Full PI references: power of Secretary of State to appoint expert¶

1 This section applies where the Secretary of State makes a full PI reference.

2 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.

3 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.

4 Each person so appointed is referred to in this Part as a “public interest expert”.

5 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.

6 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.

7 Before appointing a public interest expert the Secretary of State shall consult the chair of the CMA.

142 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Investigations and reports by CMA ¶

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

2 The report shall, in particular, contain—

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

b its reasons for its decisions; ^F853...

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

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

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

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

143 ^C359^C529^C431^C358^C522^C451^C399^C420^C462Restricted PI references: publication¶

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

1 The CMA shall publish the report if it contains—

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

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

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

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

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143A Full PI references: publication etc of reports of CMA¶

1 This section applies in relation to a report prepared under section 142 in respect of a full PI reference.

2 The CMA shall publish the report if it contains—

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

b 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

c 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.

3 The CMA shall give the report to the Secretary of State if it contains the decisions of the CMA—

a 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

b in relation to at least one effect adverse to the public interest concerned, that action should be taken by the Secretary of State.

4 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).

144 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Time-limits for investigations and reports: Part 4¶

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

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

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

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

i the date of the appointment of the expert;

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

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

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

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

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

2 The Secretary of State may by order amend —

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

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

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

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

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

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

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

145 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Restrictions where public interest considerations not finalised: Part 4¶

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

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

c at least 24 weeks has elapsed since the giving of the notice; and

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

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

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

146 Restricted PI references: decision of Secretary of State¶

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

a has been prepared under section 142;

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

c has been given to the Secretary of State as required by section 143(3).

2 The Secretary of State shall decide whether—

a any eligible public interest consideration is relevant; or

b any eligible public interest considerations are relevant;

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

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

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

a was mentioned in the intervention notice concerned; and

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

146A Full PI references: decision of Secretary of State¶

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

a has been prepared under section 142;

b 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

c has been given to the Secretary of State as required by section 143A(3).

2 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.

3 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—

a that there is an adverse effect on competition;

b that there is one or more than one admissible public interest consideration which is relevant to the matter; and

c 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.

4 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.

5 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.

6 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.

7 In this section “admissible public interest consideration” means a public interest consideration which—

a was mentioned in the intervention notice concerned; and

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

147 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Restricted PI references: remedial action by Secretary of State¶

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

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

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

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

a reasonable and practicable—

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

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

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

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

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

b the report of the CMA under section 142.

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

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

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

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

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

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

147A Full PI references: remedial action by Secretary of State¶

1 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.

2 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.

3 In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to the report of the CMA under section 142.

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

a the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and

b any detrimental effects on customers so far as resulting from those effects.

148 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Restricted PI references: reversion of the matter to CMA¶

1 If—

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

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

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

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

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

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

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

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

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

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

148A Full PI references: reversion of the matter to CMA¶

1 This section applies if—

a the Secretary of State decides under section 146A(2) to make no finding at all in the matter; or

b 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.

2 The CMA shall proceed under section 138 as if—

a a reference under section 131 had been made (in accordance with the requirements imposed by this Part) instead of a full PI reference; and

b its report had been prepared and published under section 136 within the period permitted by section 137.

3 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).

4 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).

5 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.

6 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.

7 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.

8 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.

9 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.

10 In this section “admissible public interest consideration” has the same meaning as in section 146A.

Intervention notices under section 139(2)¶

149 Intervention notices under section 139(2)¶

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

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

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

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

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

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

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

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

5 The events are—

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

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

c the decision of the Secretary of State to revoke the intervention notice concerned.

150 Power of veto of Secretary of State¶

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

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

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

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

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

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

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

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

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

Other¶

151 ^C359^C529^C431^C358^C522^C451^C399^C420^C462Public interest intervention cases: interaction with general procedure¶

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

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

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

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

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

^F4586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

a a Saturday or Sunday, or

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

152 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Certain duties of CMA ¶

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

^F12262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

153 ^C359^C529^C431^C358^C522^C451^C399^C420^C462Specified considerations: Part 4¶

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

^F2352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 An order under this section may apply in relation to cases under consideration by the CMA, by the Secretary of State or by the appropriate Minister (other than the Secretary of State acting alone) ^F1085... before the making of the order as well as cases under consideration on or after the making of the order.

^C359^C529^C431^C358^C522^C451^C399^C420^C462Chapter 3 Enforcement¶

^F320...¶

^F320154 Undertakings in lieu of market investigation references¶

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

Undertakings in lieu¶

154A Undertakings fully or partially in lieu of references or reports¶

1 This section applies where—

a 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,

b a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or

c a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.

2 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)—

a any adverse effect on competition concerned, or

b any detrimental effect on customers so far as—

i it has resulted from the adverse effect on competition, or

ii it may be expected to result from the adverse effect on competition.

3 An undertaking under this section is known as—

a 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);

b an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).

4 The CMA may accept—

a undertakings in lieu of a reference either—

i instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or

ii in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);

b undertakings in lieu of a report either—

i instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or

ii in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).

5 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—

a the adverse effect on competition concerned, and

b any detrimental effects on customers so far as resulting from the adverse effect on competition.

6 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.

7 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).

8 An undertaking under this section—

a comes into force when accepted;

b may be varied or superseded by another undertaking;

c may be released by the CMA.

9 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.

10 This section is subject to sections 150 and 155.

155 Undertakings in lieu: procedural requirements¶

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

a publish notice of the proposed undertaking; and

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

2 A notice under subsection (1) shall state—

a that the CMA proposes to accept the undertaking;

b the purpose and effect of the undertaking;

c the situation that the undertaking is seeking to deal with;

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

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

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

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

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

a publishes notice of the proposed modifications; and

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

5 A notice under subsection (4) shall state—

a the proposed modifications;

b the reasons for them; and

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

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

a not to accept the undertaking concerned; and

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

it shall publish notice of that decision.

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

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

b publish the undertaking.

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

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

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

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

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

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

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

156 Effect of undertakings in lieu¶

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

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

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

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

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

a the CMA has , instead of making an ordinary reference, accepted an undertaking or group of undertakings in lieu of a reference under section 154A within the previous 12 months; ^F1602...

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

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

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

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

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

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

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

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

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

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

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

a the CMA’s decision to accept the undertaking,

b the reasons for the decision, and

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

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

Interim undertakings and orders¶

157 Interim undertakings: Part 4¶

1 Subsection (2) applies where—

a a market investigation reference has been made;

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

c the market investigation reference concerned is not finally determined.

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

2A Subsection (2B) applies where—

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

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

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

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

3 An undertaking under this section—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; and

c may be released by the relevant authority.

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

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

6 In this section and section 158—

“pre-emptive action” means action which might impede the taking of any action under section 138(2) , 147(2) or (as the case may be) 147A(2) in relation to the market investigation reference concerned; and
“the relevant authority” means—
1. in the case of a restricted PI reference or a full PI reference, the Secretary of State;
2. in any other case, the CMA.

158 Interim orders: Part 4¶

1 Subsection (2) applies where—

a a market investigation reference has been made;

c the market investigation reference concerned is not finally determined.

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

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

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

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

2A Subsection (2B) applies where—

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

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

2B The relevant authority may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

a do anything mentioned in subsection (2)(b) to (d);

b impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

3 An order under this section—

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

b may be varied or revoked by another order.

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

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

Final undertakings and orders¶

159 Final undertakings: Part 4¶

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 An order under this section may contain—

^C5^C13^C21^C246^C249a anything permitted by Schedule 8; and

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

5 An order under this section—

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

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

c may be varied or revoked by another order.

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

7 In this section “the relevant authority” means—

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

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

161 Final orders: Part 4¶

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

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

3 An order under this section may contain—

^C6^C14^C22^C247^C250a anything permitted by Schedule 8; and

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

4 An order under this section—

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

b may be varied or revoked by another order.

^C3645 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 ^F1027....

161A Acceptance of enforcement undertakings: Part 4¶

1 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.

2 In subsection (1), “the relevant authority” means—

a in the case of a restricted PI reference or a full PI reference, the Secretary of State;

b in any other case, the CMA.

Implementation trials of final orders and undertakings¶

161B Implementation trials: purpose and interpretation¶

1 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”).

2 In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State.

3 In this Part—

“implementation trial measure” means an undertaking accepted, or order made, under section 161C (and references to the imposition of such a measure are to be read as the acceptance of an undertaking or the making of an order, as the case may be);
“implementation trial period” means, in relation to an implementation trial measure, the period—
1. beginning with the day on which the relevant authority begins the implementation trial, and
2. ending with the last day on which the implementation trial measure is to have effect (see subsections (4) and (5));
“qualifying remedial action” means remedial action in respect of—
1. a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), or
2. any other matter specified in regulations made by the Secretary of State;
“relevant adverse effect” means—
1. where the relevant authority is the CMA, an adverse effect on competition identified in the report mentioned in section 138(1);
2. where the relevant authority is the Secretary of State—
  1. an adverse effect on competition identified in the report mentioned in section 146(1);
  2. an effect adverse to the public interest identified in the report mentioned in section 146A(1);
“remedial action” means an action—
1. where the relevant authority is the CMA, to be taken in accordance with section 138(2) or section 162A(5);
2. where the relevant authority is the Secretary of State, to be taken in accordance with section 147(2) or 147A(2) (as the case may be).

4 The last day on which an implementation trial measure is to have effect is the earlier of—

a the day specified under section 161D(5)(b)(ii), and

b 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.

5 But where—

a an implementation trial measure is imposed in accordance with this section, and

b 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 last day on which the implementation trial measure is to have effect is the last day of that period as so extended.

161C Power to conduct implementation trials¶

1 The CMA may, in relation to a market investigation reference, begin an implementation trial where—

a subsection (2) of section 138 applies (see subsection (1) of that section), and

b the CMA has not taken, but is minded to take, qualifying remedial action.

2 The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where—

a 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

b the Secretary of State has not taken, but is minded to take, qualifying remedial action.

3 Subsections (1) and (2) are subject to the duty to publish notices in section 161D.

4 The relevant authority begins an implementation trial by—

a accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or

b making an order under this section,

for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action.

5 Where the relevant authority begins an implementation trial, the relevant authority may also—

a accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or

b make an order under this section,

in the circumstances mentioned in subsection (6).

6 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—

a 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;

b 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.

161D Implementation trials: notices¶

1 Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish—

a a provisional implementation trial notice, and

b a final implementation trial notice (but see subsection (4)).

2 A provisional implementation trial notice must—

a specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial;

b specify the relevant adverse effect with which each measure is seeking to deal;

c specify any other facts which the relevant authority considers justify the imposition of each measure;

d specify, in relation to each measure—

i how the relevant authority intends to assess the likely effect of the measure, and

ii the last day on which the relevant authority intends for the measure to have effect;

e 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;

f specify the means by which, and the time by which, such representations must be made.

3 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.

4 A relevant authority may publish a final implementation trial notice only where—

a the relevant authority has published a provisional implementation trial notice under subsection (1),

b the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and

c 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).

5 A final implementation trial notice must specify—

a the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial,

b in relation to each such measure—

i how the relevant authority intends to assess the likely effect of the measure, and

ii the last day on which the measure is to have effect.

161E Implementation trials: supplementary¶

1 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.

2 The CMA may not begin an implementation trial under section 161C(4)—

a 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;

b 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).

3 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).

4 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).

5 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).

6 Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1).

7 Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).

Undertakings and orders: monitoring, consultation and advice¶

162 Duty of CMA to monitor the carrying out of undertakings and orders: Part 4¶

^C55^C265^C2671 The CMA shall keep under review the carrying out of any enforcement undertaking or any enforcement order.

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

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

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

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

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

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

3 The CMA shall give ^F1720... the Secretary of State such advice as it considers appropriate in relation to—

a any possible variation or release by ^F1680...the Secretary of State of an enforcement undertaking accepted by ^F1362... him;

b any possible new enforcement undertaking to be accepted by ^F709... the Secretary of State so as to supersede another enforcement undertaking given to ^F709... the Secretary of State;

c any possible variation or revocation by ^F709... the Secretary of State of an enforcement order made by ^F709... the Secretary of State;

d any possible enforcement undertaking to be accepted by ^F709... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ^F709... the Secretary of State instead of an enforcement undertaking; or

e the enforcement by virtue of section 167(6) and (7) of any enforcement undertaking or enforcement order.

4 The CMA shall take such action as it considers appropriate in relation to—

a any possible variation or release by it of an undertaking accepted by it under section 154A;

b any possible new undertaking to be accepted by it under section 154A so as to supersede another undertaking given to it under that section;

ba any possible variation or release by it of an enforcement undertaking accepted by it;

bb any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;

bc any possible variation or revocation by it of an enforcement order made by it;

bd 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

c the enforcement by it by virtue of section 167(6) of any enforcement undertaking or enforcement order.

^F15155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 In this Part—

“enforcement order” means an order made under section 158, 160 or 161; and
“enforcement undertaking” means an undertaking accepted under section 154A, 157 or 159.

162A Duty of CMA to monitor effectiveness of undertakings and orders: Part 4¶

1 The CMA must keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

2 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).

3 The CMA must—

a give a copy of any report prepared by it under subsection (2) to the Secretary of State, and

b publish the report.

4 Subsection (5) applies, in relation to an adverse effect on competition identified in a report mentioned in section 138(1), where—

a the report was published within the previous 10 years,

b the CMA last took action in accordance with section 138(2) or subsection (5) of this section no less than two years ago, and

c 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.

5 The CMA must take such action as it considers appropriate for the purposes mentioned in section 138(2) in relation to—

a any possible variation or release by the CMA of an enforcement undertaking accepted by it;

b any possible new enforcement undertaking to be accepted by the CMA so as to supersede another enforcement undertaking given to it;

c any possible variation or revocation by the CMA of an enforcement order made by it;

d 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.

6 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).

7 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—

a the report was laid before each House of Parliament in accordance with section 172(10) within the previous 10 years,

b 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

c 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.

8 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—

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

b 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;

c any possible variation or revocation by the Secretary of State of an enforcement order made by the Secretary of State;

d 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.

162B Power to vary etc undertakings and orders: implementation trials¶

1 This section applies in relation to implementation trial measures imposed in accordance with section 161C.

2 The CMA must keep under review the effectiveness of the implementation trial measures.

3 The CMA must, in particular, from time to time consider—

a whether an implementation trial measure has been or is being complied with;

b whether an undertaking accepted under section 161C is no longer appropriate and—

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

ii it needs to be varied or to be superseded by a new undertaking under that section; and

c whether an order made under section 161C is no longer appropriate and needs to be varied or revoked.

4 The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to—

a any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C;

b 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;

c any possible variation or revocation by the Secretary of State of an order made by the Secretary of State under that section;

d 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.

5 The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to—

a any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C;

b 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;

c any possible variation or revocation by the relevant authority of an order made by it under that section;

d 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.

6 But the relevant authority may not do anything under this section that would result in—

a the implementation trial period being extended;

b an order or undertaking made under section 161C being out of compliance with any provision of that section.

7 In this section “relevant authority” has the meaning given by section 161B(2).

8 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).

9 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).

10 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).

163 Role of CMA in relation to undertakings and orders in public interest cases: Part 4¶

1 Subsections (2) and (3) apply where ^F1391... the Secretary of State ^F1057... is considering whether to accept undertakings under section 157 or 159.

3 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.

4 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.

5 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 ^F1289....

6 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.

Supplementary¶

164 Enforcement undertakings and orders under this Part: general provisions¶

^C7^C15^C23^C248^C2511 The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

2 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—

a section 86(1) to (5) (enforcement orders: general provisions); and

b section 87 (power of directions conferred by enforcement order).

3 An enforcement order under section 160 or 161 or any explanatory material accompanying the order shall state—

a 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;

b the date on which the order comes into force;

c the possible consequences of not complying with the order; and

d the section of this Part under which a review can be sought in relation to the order.

165 Procedural requirements for certain undertakings and orders: Part 4¶

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.

166 Register of undertakings and orders: Part 4¶

1 The CMA shall compile and maintain a register for the purposes of this Part.

2 The register shall be kept in such form as the CMA considers appropriate.

^C252^C266^C2683 The CMA shall ensure that the following matters are entered in the register—

a the provisions of any enforcement undertaking accepted by virtue of this Part ^F1266...;

b the provisions of any enforcement order made by virtue of this Part ^F1122...; and

c the details of any variation, release or revocation of such an undertaking or order.

4 The duty in subsection (3) does not extend to anything of which the CMA is unaware.

5 The ^F1462... 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.

6 The CMA shall ensure that the contents of the register are available to the public—

a during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and

b subject to such reasonable fees (if any) as the CMA may determine.

167 Rights to enforce undertakings and orders under this Part¶

1 This section applies to

a any enforcement undertaking or enforcement order;

b any undertaking accepted, or order made, under section 161C.

2 Any person to whom such an undertaking or order relates shall have a duty to comply with it.

3 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.

4 Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

5 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.

6 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.

7 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.

^F8688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 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.

10 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.

167A Enforcement of undertakings and orders etc: imposition of penalties¶

^F9871 The relevant authority may, in accordance with section 167B, impose a penalty on a person—

a from whom the authority has accepted an enforcement undertaking, or

b to whom an enforcement order is addressed,

where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.

2 In this section and in section 167B, “the relevant authority” means—

a in the case of a restricted PI reference or a full PI reference, the Secretary of State;

b in any other case, the CMA.

3 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.

167B Penalties under section 167A: amount¶

1 A penalty under section 167A(1) is to be such amount as the relevant authority considers appropriate.

2 The amount must be—

a a fixed amount,

b an amount calculated by reference to a daily rate, or

c a combination of a fixed amount and an amount calculated by reference to a daily rate.

3 A penalty imposed under section 167A(1) on a person who does not own or control an enterprise must not—

a in the case of a fixed amount, exceed £30,000;

b in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;

c 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.

4 A penalty imposed under section 167A(1) on any other person must not—

a 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;

c 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.

5 In imposing a penalty by reference to a daily rate—

a 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

b 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

i the enforcement undertaking or enforcement order , or

ii the undertaking accepted, or order made, under section 161C.

6 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—

a 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));

b section 114(5A) is to be read as if the words “or OFCOM” were omitted;

c section 114(12) is to be read as if, for paragraph (b), there were substituted—

8 Before making regulations under subsection (7) the Secretary of State must consult—

a the CMA, and

b such other persons as the Secretary of State considers appropriate.

9 The Secretary of State may by regulations make provision for determining, for the purposes of this section—

a when an enterprise is to be treated as being controlled by a person;

b the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

10 Regulations under subsection (9)(b) may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;

b the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.

11 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)).

167C Statement of policy in relation to functions under sections 167 and 167A¶

1 The CMA must prepare and publish a statement of policy in relation to the exercise of functions under sections 167 and 167A.

2 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.

3 The CMA may revise its statement of policy and, where it does so, it must publish the revised statement.

4 The CMA must consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

5 A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.

^C359^C529^C431^C358^C522^C451^C399^C420^C462Chapter 4 Supplementary¶

Regulated markets¶

^C344^C481168 Regulated markets¶

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.

2 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.

3 In this section “relevant action” means—

a modifying the conditions of a licence granted under section 7 of the Telecommunications Act 1984 (c. 12);

^F638b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44);

d modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);

e modifying networking arrangements (within the meaning given by section 290 of the Communications Act 2003);

f modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);

ff 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;

g modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));

^C343h modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);

hh modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;

i 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);

^F876j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

k modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

^F706l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

m modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38);

n modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006;

o modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;

p modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012;

q modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012; or

r modifying the conditions of a licence granted under section 7 of the Energy Act 2023.

4 In this section “relevant statutory functions” means—

a 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;

^F1681b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c 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;

d 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;

e 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;

f 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;

ff 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);

g 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));

^C342h 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;

hh 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;

i 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);

j 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;

k 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;

^F456l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

m 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;

^F1683n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

o 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;

p 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;

q 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;

r 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;

s 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

t 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.

5 In this section “sectoral regulator” means—

a the Civil Aviation Authority;

b the Northern Ireland Authority for Utility Regulation.

d the Director General of Telecommunications;

e the Water Services Regulation Authority;

f the Gas and Electricity Markets Authority;

g the Office of Communications;

^F988h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i the Office of Rail and Road; ^F91. . .

ia NHS England;

j the Secretary of State;

k the Scottish Ministers; or

l the National Assembly for Wales or

k the Department for Regional Development.

6 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.

7 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.

8 The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).

9 Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.

Consultation, information and publicity¶

169 Certain duties of relevant authorities to consult: Part 4¶

1 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.

2 The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision.

3 In consulting the person concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

4 In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—

a any restrictions imposed by any timetable for making the decision; and

b any need to keep what is proposed, or the reasons for it, confidential.

6 In this section—

“the relevant authority” means the CMA, the appropriate Minister or the Secretary of State; and
“relevant decision” means—
1. in the case of the CMA, any decision by the CMA—
  1. to make a reference under section 131 in a case where the CMA has not published a market study notice under section 130A in relation to the matter concerned;
  2. as to whether to accept undertakings in lieu of a reference under section 154A;
  3. to vary under section 135 such a reference ; or—
  4. on the questions mentioned in section 134, 141 or 141A; ^F1628...
  5. to accept undertakings or make orders under section 161C; and
  6. to take action under section 162A(5); and
2. in the case of the appropriate Minister (other than the Secretary of State acting alone), any decision by the appropriate Minister—
  1. ^F849... to make a reference under section 132; or
  2. to vary under section 135 such a reference; ^F835...
    in the case of the Secretary of State, any decision by the Secretary of State—
    1. to make a reference under section 132;
    2. to vary under section 135 such a reference;
    3. 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
    4. to vary under section 140B a reference made under section 140A(6).
3. ^F835...

170 General information duties¶

^F2561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—

a 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

b 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.

4 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.

5 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).

6 Any direction given under subsection (3)—

a shall be in writing; and

b may be varied or revoked by a subsequent direction.

171 Advice and information: Part 4¶

1 ^F1052... The CMA shall prepare and publish general advice and information about —

a the making and consideration by it of market investigation references, and

b the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.

2 The CMA may at any time publish revised, or new, advice or information.

^F4603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Advice and information published under this section shall be prepared with a view to—

a explaining relevant provisions of this Part to persons who are likely to be affected by them; and

b indicating how the CMA expects such provisions to operate.

^F10796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 Advice (or information) published by virtue of subsection (1) ^F338... 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.

8 Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.

9 In preparing any advice or information under this section, the CMA shall consult such persons and such other persons as it considers appropriate.

^F149010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F68311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

172 Further publicity requirements: Part 4¶

1 The CMA shall publish—

a any reference made by it under section 131, other than a reference treated as so made by virtue of section 140A(5)(b);

aa any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;

b any variation made by it under section 135 of a reference under section 131;

c any decision of a kind mentioned in section 149(5)(b); and

d 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.

2 The CMA shall also publish—

za any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published;

zb any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;

zc 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);

a 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;

b 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;

ba 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;

c any termination under section 145(1) of an investigation by it;

^F193d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

e any enforcement undertaking accepted by it under section 157;

f any enforcement order made by it under section 158; ^F1713...

g any variation, release or revocation of such an undertaking or order; and

h any decision by it to take action under section 162A(5).

3 The Secretary of State shall publish—

a any reference made by him under section 132;

b any variation made by him under section 135 of a reference under section 132;

c any intervention notice given by him;

d any decision made by him to revoke such a notice;

da any reference made by him under section 140A(5) or (6);

db any variation made by him under section 140B of a reference under section 140A(6);

e 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;

f any enforcement undertaking accepted by him under section 157;

g any variation or release of such an undertaking; and

h any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

4 The appropriate Minister (other than the Secretary of State acting alone) shall publish—

a any reference made by him under section 132;

b any variation made by him under section 135 of a reference under section 132; and

c any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

5 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.

6 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.

7 Subsections (5) and (6) shall not apply in relation to any case falling within subsection (1)(d) ^F807....

7A Subsection (6) shall not apply in relation to any case falling within subsection (1)(a) or (3)(da).

8 The Secretary of State shall publish his reasons for—

a any decision made by him under section 146(2) or 146A(2); or

b any decision to make an order under section 153(3) or vary or revoke such an order.

9 Such reasons may be published after—

a in the case of subsection (8)(a), the publication of the decision concerned; and

b in the case of subsection (8)(b), the making of the order or of the variation or revocation;

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.

10 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.

11 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.

173 Defamation: Part 4¶

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) ^F1284... in the exercise of any of their functions under this Part.

Investigation powers¶

^C359^C529^C512^C431^C358^C522^C397^C451^C399^C420^C462174 ^C512^C359^C529^C431^C358^C522^C451^C399^C420^C462Attendance of witnesses and production of documents etc.¶

1 For the purposes of this section, the permitted purposes are the following—

a 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;

b 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;

c 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).

2 The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.

3 The CMA may give notice to any person requiring him—

a to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and

b to give evidence to the CMA or a person nominated by the CMA for the purpose.

4 The CMA may give notice to any person requiring him—

a to produce any documents which—

i are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and

ii are in that person’s custody or under his control; and

b to produce them at a time and place so specified and to a person so specified.

5 The CMA may give notice to any person who carries on any business requiring him—

a to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and

b to supply it at a time and place, and in a form and manner, so specified and to a person so specified.

6 A notice under this section shall—

a specify the permitted purpose for which the notice is given, including the function or functions in question; and

b include information about the possible consequences of not complying with the notice

6A 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.

7 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.

8 No person shall be required under this section—

a 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

b to supply any information which he could not be compelled to supply in evidence in such proceedings.

9 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.

9A In subsection (1), “enforcement functions” means—

a in relation to the CMA—

i functions conferred by virtue of section 164(2)(b) on the CMA by enforcement orders;

ii functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

iii functions of the CMA under or by virtue of section 160 or 162 in relation to enforcement undertakings or enforcement orders;

b in relation to the Secretary of State—

i functions conferred by virtue of section 164(2)(b) on the Secretary of State by enforcement orders;

ii 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;

iii functions of the Secretary of State under or by virtue of section 160 in relation to enforcement undertakings or enforcement orders.

10 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.

11 In this section “the court” means—

a in relation to England and Wales or Northern Ireland, the High Court; and

b in relation to Scotland, the Court of Session.

174ZA Extra-territorial application of notices under section 174¶

1 This section applies to the exercise of the CMA’s power to give a person a notice under section 174(4) or (5).

2 The power is exercisable so as to—

a give the notice to a person who is outside the United Kingdom (subject to subsection (3));

b require the production of documents, or the supply of information, held outside the United Kingdom.

3 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—

a is a United Kingdom national;

b is an individual who is habitually resident in the United Kingdom;

c is a body incorporated under the law of any part of the United Kingdom;

d carries on business in the United Kingdom.

4 In subsection (3)(a) “United Kingdom national” has the same meaning as in Part 3 (see section 129(1)).

5 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.

^C359^C529^C431^C358^C522^C451^C399^C420^C462174A ^C359^C529^C431^C358^C522^C451^C399^C420^C462Enforcement of powers under section 174: imposition of penalties¶

1 The CMA may impose a penalty on a person in accordance with section 174D where the CMA considers that—

a the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174;

b the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 174(7);

c 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.

1A The relevant authority may impose a penalty on a person in accordance with section 174D where the authority considers that—

1B In this section, and in sections 174B to 174D, “the relevant authority” means—

a the CMA;

b the Secretary of State;

c the appropriate Minister (so far as the Minister is not the Secretary of State acting alone).

1C 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.

2 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.

^F13823 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13824 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13825 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13826 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13827 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 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.

9 In this section—

a 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

b the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

10 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—

a 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;

b section 114(5A) is to be read as if the words “or OFCOM” were omitted;

c section 114(12) is to be read as if, for paragraph (b), there were substituted—

^C359^C529^C431^C405^C358^C522^C451^C399^C371^C420^C462174B ^C359^C529^C431^C358^C522^C451^C399^C420^C462Restriction on powers to impose penalties under section 174A¶

1 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.

2 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.

3 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.

4 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.

5 Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section.

6 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.

7 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).

8 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.

9 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).

^C359^C529^C431^C358^C522^C451^C399^C420^C462174C ^C359^C529^C431^C358^C522^C451^C399^C420^C462Section 174B: supplementary provision¶

1 For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if—

a 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

b 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.

2 For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is—

a 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;

b in a case falling within subsection (1)(b), the expiry of the period concerned.

3 For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if—

a the CMA makes such a reference;

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

c the CMA publishes notice that it has otherwise decided not to make such a reference; or

d 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.

4 For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 is—

a in a case falling within subsection (3)(a), the making of the reference;

b in a case falling within subsection (3)(b), the acceptance of the undertaking concerned;

c in a case falling within subsection (3)(c), the publication of the notice concerned;

d in a case falling within subsection (3)(d), the expiry of the period concerned.

5 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).

^C359^C529^C431^C358^C522^C451^C399^C420^C462174D ^C359^C529^C431^C358^C522^C451^C399^C420^C462Penalties : amount ¶

1 A penalty imposed under section 174A(1) or (1A) shall be of such amount as the relevant authority considers appropriate.

2 In the case of a penalty imposed under section 174A(1)(a), the amount may be—

a a fixed amount;

b an amount calculated by reference to a daily rate; or

c a combination of a fixed amount and an amount calculated by reference to a daily rate.

3 In the case of a penalty imposed under any of section 174A(1)(b), (c) or (1A), the amount shall be a fixed amount.

4 A penalty imposed under section 174A(1) or (1A) on a person who does not own or control an enterprise must not—

a in the case of a fixed amount, exceed £30,000;

b in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; and

c 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 ^F1276....

4A A penalty imposed under section 174A(1) or (1A) on any other person must not—

a 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;

c 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.

^F6415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F6416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6A 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.

7 Before making regulations under subsection (6A), the Secretary of State shall consult—

a the CMA; and

b such other persons as the Secretary of State considers appropriate.

8 In imposing a penalty by reference to a daily rate—

a 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

b 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).

9 Those days are—

a the day on which the requirement of the notice concerned under section 174 is satisfied;

b the day which is the relevant day in the case in question for the purposes of section 174B.

^F169410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 The Secretary of State may by regulations make provision for determining, for the purposes of this section—

a when an enterprise is to be treated as being controlled by a person;

b the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

12 Regulations under subsection (11)(b) may, in particular, make provision as to—

a the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;

b the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.

13 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)).

^C359^C529^C431^C358^C522^C451^C399^C420^C462174E ^C359^C529^C431^C358^C522^C451^C399^C420^C462Statement of policy on penalties¶

1 The CMA must prepare and publish a statement of policy in relation to—

a the imposition of penalties under section 174A, and

b the enforcement of notices under section 174.

2 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).

3 The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.

4 The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

5 A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.

^F626175 Enforcement of powers under section 174: offences¶

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

^F1413176 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Investigation powers of the Commission¶

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

Reports¶

177 Excisions from reports etc: Part 4¶

1 Subsection (2) applies where

a the Secretary of State is under a duty to publish a report of the CMA under section 142;

b 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.

2 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.

3 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.

4 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).

5 References in sections 136(4) to (6)^F939... 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.

178 Minority reports of CMA: Part 4¶

1 Subsection (2) applies where, on a market investigation reference, a member of a group constituted in connection with the reference ^F1236..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.

2 The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Other¶

179 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Review of decisions under Part 4¶

1 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.

2 For this purpose “decision”—

za 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));

a does not include a decision to impose a penalty under section 167A(1) or 174A(1) or (1A); but

b includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.

3 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.

4 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.

5 The Competition Appeal Tribunal may—

a dismiss the application or quash the whole or part of the decision to which it relates; and

b 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.

6 An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

7 An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

8 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
“Tribunal rules” has the meaning given by section 15(1).

180 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Offences¶

1 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.

1A For the purposes of subsection (1), section 116A has effect as if—

a references to section 109 were references to section 174;

b the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

1B For the purposes of subsection (1), section 117 has effect as if—

a references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A;

b the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

181 Orders and regulations under Part 4¶

1 Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.

2 Any power of the Secretary of State to make an order or regulations under this Part—

a may be exercised so as to make different provision for different cases or different purposes;

b includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

3 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.

4 An order made by the Secretary of State under section 131C(1), 137(3), 138B(6), 144(2), 158, 160 , 161, ^F784... or under section 114(3)(b) or (4)(b) as applied by section 174A(10), is subject to the negative procedure.

4A Regulations made under section 167B(9) or 174D(11) are subject to the negative procedure.

5 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.

5A 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.

5B 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.

6 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.

7 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.

8 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.

9 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.

10 References in this section to an order made under this Part include references to an order made under section ^F315... 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).

182 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Service of documents: Part 4¶

Section 126 shall apply for the purposes of this Part as it applies for the purposes of Part 3.

183 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Interpretation: Part 4¶

1 In this Part, unless the context otherwise requires—

“action” includes omission; and references to the taking of action include references to refraining from action;
“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;
“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;
“consumer” means any person who is—
1. a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or
2. a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;
and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
“customer” includes a customer who is not a consumer;
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
“enterprise” means the activities, or part of the activities, of a business;
“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;
“Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom and includes the Treasury;
“modify” includes amend or repeal;
“notice” means notice in writing;
“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
“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person.

2 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.

3 For the purposes of this Part a market investigation reference is finally determined if—

a where the reference is made under section 131 or 132—

i 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;

ii 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;

iii the CMA has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161;^F1032...

iiia the CMA has accepted an undertaking fully in lieu of a report under section 154A; or

iv the CMA has accepted an undertaking under section 159 or made an order under section 161;

b where the reference is a restricted PI reference or a full PI reference—

i 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;

ii the CMA has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above ^F1672...;

iii 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;

iv the intervention notice was revoked and the reference is finally determined under paragraph (a) above ^F1314...;

v 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;

vi 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 ^F675...;

via the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;

vii 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; ^F362...

viia 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;

viii 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

ix 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.

4 For the purposes of this Part the time when a market investigation reference is finally determined is—

a in a case falling within subsection (3)(a)(i) or (b)(i), the expiry of the time concerned;

b in a case falling within subsection (3)(a)(ii) or (b)(iii), the publication of the report;

c 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

d in any other case, the making of the decision or last decision concerned or the taking of the action concerned.

5 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).

6 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).

7 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.

184 ^C359^C529^C431^C358^C522^C451^C399^C420^C462 Index of defined expressions: Part 4¶

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
^F979. . .	^F979. . .
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)
^F979. . .	^F979. . .
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)

Part 5 The Competition Commission¶

^F434185 The Commission¶

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

^F434186 Annual report of Commission¶

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

^F434187 Commission rules of procedure¶

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

Part 6 Cartel offence¶

Cartel offence¶

188 Cartel offence¶

1 An individual is guilty of an offence if he ^F1193... 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).

2 The arrangements must be ones which, if operating as the parties to the agreement intend, would—

a directly or indirectly fix a price for the supply by A in the United Kingdom (otherwise than to B) of a product or service,

b limit or prevent supply by A in the United Kingdom of a product or service,

c limit or prevent production by A in the United Kingdom of a product,

d divide between A and B the supply in the United Kingdom of a product or service to a customer or customers,

e divide between A and B customers for the supply in the United Kingdom of a product or service, or

f be bid-rigging arrangements.

3 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—

a directly or indirectly fix a price for the supply by B in the United Kingdom (otherwise than to A) of a product or service,

b limit or prevent supply by B in the United Kingdom of a product or service, or

c limit or prevent production by B in the United Kingdom of a product.

4 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).

5 “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 A but not B may make a bid, or

b A and B may each make a bid but, in one case or both, only a bid arrived at in accordance with the arrangements.

^F7116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 “Undertaking” has the same meaning as in Part 1 of the 1998 Act.

8 This section is subject to section 188A.

188A Circumstances in which cartel offence not committed¶

1 An individual does not commit an offence under section 188(1) if, under the arrangements—

a 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,

b 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

c 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.

2 In subsection (1), “relevant information” means—

a the names of the undertakings to which the arrangements relate,

b 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,

c the products or services to which they relate, and

d such other information as may be specified in an order made by the Secretary of State.

3 An individual does not commit an offence under section 188(1) if the agreement is made in order to comply with a legal requirement.

4 In subsection (3), “legal requirement” has the same meaning as in paragraph 5 of Schedule 3 to the Competition Act 1998.

5 A power to make an order under this section—

a is exercisable by statutory instrument,

b may be exercised so as to make different provision for different cases or different purposes, and

c includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

6 A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

188B Defences to commission of cartel offence¶

1 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.

2 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.

3 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.

189 Cartel offence: supplementary¶

1 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.

2 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—

a at which the product or service would at the same time be supplied by B in the United Kingdom, or

b at which supply by B in the United Kingdom of the product or service would be limited or prevented by the arrangements.

3 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—

a at which the product would at the same time be produced by B in the United Kingdom, or

b at which production by B in the United Kingdom of the product would be limited or prevented by the arrangements.

4 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.

5 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.

6 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—

a at which the product or service would at the same time be supplied by A in the United Kingdom, or

b at which supply by A in the United Kingdom of the product or service would be limited or prevented by the arrangements.

7 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—

a at which the product would at the same time be produced by A in the United Kingdom, or

b at which production by A in the United Kingdom of the product would be limited or prevented by the arrangements.

190 Cartel offence: penalty and prosecution¶

1 A person guilty of an offence under section 188 is liable—

a on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

b on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

2 In England and Wales and Northern Ireland, proceedings for an offence under section 188 may be instituted only—

a by the Director of the Serious Fraud Office, or

b by or with the consent of the CMA.

3 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.

4 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.

190A Cartel offence: prosecution guidance¶

1 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.

2 The CMA may at any time issue revised or new guidance.

3 Guidance published by the CMA under this section is to be published in such manner as it considers appropriate.

4 In preparing guidance under this section the CMA must consult—

a the Director of the Serious Fraud Office;

b the Lord Advocate; and

c such other persons as it considers appropriate.

191 Extradition¶

^F74. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal investigations by OFT¶

192 Investigation of offences under section 188¶

1 The CMA may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 188 has been committed.

2 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”).

^C460193 Powers when conducting an investigation¶

1 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.

2 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.

3 If any such documents are produced, the CMA may—

a take copies or extracts from them;

b require the person producing them to provide an explanation of any of them.

4 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.

5 A notice under subsection (1) or (2) must indicate—

a the subject matter and purpose of the investigation; and

b the nature of the offences created by section 201.

^C381194 Power to enter premises under a warrant¶

1 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—

a 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

b that—

i a person has failed to comply with a requirement under that section to produce the documents;

ii it is not practicable to serve a notice under that section in relation to them; or

iii the service of such a notice in relation to them might seriously prejudice the investigation.

1A In subsection (1), “appropriate body” means—

a in England and Wales and Northern Ireland, the High Court or the Competition Appeal Tribunal;

b in Scotland, the sheriff.

2 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—

a to enter the premises, using such force as is reasonably necessary for the purpose;

b to search the premises and—

i take possession of any documents appearing to be of the relevant kind, or

ii 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;

c 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;

d to require any information which is stored in any electronic form and is accessible from the premises ^F1044... to be produced in a form—

i in which it can be taken away, and

ii in which it is visible and legible or from which it can readily be produced in a visible and legible form.

e to operate any equipment found on the premises for the purposes of producing such information in such a form;

f 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));

g 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.

3 Documents are of the relevant kind if they are of a kind in respect of which the application under subsection (1) was granted.

4 A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.

4A An application for a warrant under this section must be made—

a in the case of an application to the High Court or the sheriff, in accordance with rules of court;

b in the case of an application to the Competition Appeal Tribunal, in accordance with rules made under section 15.

5 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—

195 Exercise of powers by authorised person¶

1 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.

2 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.

3 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.

196 Privileged information etc.¶

1 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.

2 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—

a the person to whom the obligation of confidence is owed consents to the disclosure or production; or

b the CMA has authorised the making of the requirement.

2A 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.

3 In the application of this section to Scotland, the reference in subsection (1)—

a to proceedings in the High Court is to be read as a reference to legal proceedings generally; and

b 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—

i communications between a professional legal adviser and his client, or

ii communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,

are in such proceedings protected from disclosure on the ground of confidentiality.

197 Restriction on use of statements in court¶

1 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—

a on a prosecution for an offence under section 201(2); or

b on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

2 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.

198 Use of statements obtained under Competition Act 1998¶

In the 1998 Act, after section 30 there is inserted—

199 Surveillance powers¶

1 The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.

2 In section 32 (authorisation of intrusive surveillance)—

a after subsection (3) there is inserted—

;

b in subsection (6) after paragraph (m) there is inserted

3 In section 33 (rules for grant of authorisations) after subsection (4) there is inserted—

4 In subsection (5)(a) of that section, after “officer” there is inserted “ or the chairman or an officer of the OFT ”.

5 In section 34 (grant of authorisation in the senior officer’s absence)—

a in subsection (1)(a), after “or by” there is inserted “ an officer of the OFT or ”;

b in subsection (2)(a), after “may be,” there is inserted “ as chairman of the OFT or ”;

c in subsection (4), after paragraph (l) there is inserted—

6 In section 35 (notification of authorisations for intrusive surveillance)—

a in subsections (1) and (10), for “or customs” there is substituted “ , customs or OFT ”;

b in subsection (10), after paragraph (b) there is inserted—

;

c in paragraph (c) of that subsection, at the end there is inserted “ or for a person falling within paragraph (ba). ”

7 In section 36 (approval required for authorisations to take effect)—

a in subsection (1), after paragraph (d) there is inserted

;

b in subsection (6), after paragraph (g) there is inserted

8 In section 37 (quashing of police and customs authorisations etc.) in subsection (1), after paragraph (d) there is inserted

9 In section 40 (information to be provided to Surveillance Commissioners) after paragraph (d) there is inserted

10 In section 46 (restrictions on authorisations extending to Scotland), in subsection (3), after paragraph (d) there is inserted—

11 In section 48 (interpretation of Part 2), in subsection (1), after the entry relating to “directed” and “intrusive” there is inserted—

200 Authorisation of action in respect of property¶

1 Part 3 of the Police Act 1997 (c. 50) (authorisation of action in respect of property) is amended as follows.

2 In section 93 (authorisation to interfere with property etc.)—

a in subsection (1B), after “customs officer” there is inserted “ or an officer of the Office of Fair Trading ”;

b after subsection (2A) there is inserted—

;

c in subsection (3), after paragraph (d) there is inserted

;

d in subsection (5), after paragraph (h) there is inserted

3 In section 94 (authorisation given in absence of authorising officer) in subsection (2), after paragraph (f) there is inserted—

201 Offences¶

1 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.

2 A person who, in purported compliance with a requirement under section 193 or 194—

a makes a statement which he knows to be false or misleading in a material particular; or

b recklessly makes a statement which is false or misleading in a material particular,

is guilty of an offence.

3 A person guilty of an offence under subsection (2) is liable—

a on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both; and

b on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

4 Where any person—

a 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

b 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,

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.

5 A person guilty of an offence under subsection (4) is liable—

a on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both; and

b on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

6 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—

a on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both; and

b on summary conviction, to a fine not exceeding the statutory maximum.

202 Interpretation of sections 192 to 201¶

In sections 192 to 201—

“documents” includes information recorded in any form and, in relation to information recorded otherwise than in a form in which it is visible and legible, references to its production include references to producing it in a form in which it is visible and legible or from which it can readily be produced in a visible and legible form;
“person under investigation” has the meaning given in section 192(2).

Part 7 Miscellaneous Competition Provisions¶

Powers of entry under 1998 Act¶

203 Powers of entry¶

1 The 1998 Act is amended as follows.

2 In section 28 (power to enter premises under a warrant), after subsection (3) there is inserted—

3 In section 62 (power to enter premises: Commission investigations), after subsection (5) there is inserted—

4 In section 63 (power to enter premises: Director’s special investigations), after subsection (5) there is inserted—

Directors disqualification¶

204 Disqualification¶

1 The Company Directors Disqualification Act 1986 (c. 46) is amended as follows.

2 The following sections are inserted after section 9 (matters for determining unfitness in certain cases)—

Disqualification for competition infringements

9A Competition disqualification order

1 The court must make a disqualification order against a person if the following two conditions are satisfied in relation to him.

2 The first condition is that an undertaking which is a company of which he is a director commits a breach of competition law.

3 The second condition is that the court considers that his conduct as a director makes him unfit to be concerned in the management of a company.

4 An undertaking commits a breach of competition law if it engages in conduct which infringes any of the following—

a the Chapter 1 prohibition (within the meaning of the Competition Act 1998) (prohibition on agreements, etc. preventing, restricting or distorting competition);

b the Chapter 2 prohibition (within the meaning of that Act) (prohibition on abuse of a dominant position);

c Article 81 of the Treaty establishing the European Community (prohibition on agreements, etc. preventing, restricting or distorting competition);

d Article 82 of that Treaty (prohibition on abuse of a dominant position).

5 For the purpose of deciding under subsection (3) whether a person is unfit to be concerned in the management of a company the court—

a must have regard to whether subsection (6) applies to him;

b may have regard to his conduct as a director of a company in connection with any other breach of competition law;

c must not have regard to the matters mentioned in Schedule 1.

6 This subsection applies to a person if as a director of the company—

a his conduct contributed to the breach of competition law mentioned in subsection (2);

b his conduct did not contribute to the breach but he had reasonable grounds to suspect that the conduct of the undertaking constituted the breach and he took no steps to prevent it;

c he did not know but ought to have known that the conduct of the undertaking constituted the breach.

7 For the purposes of subsection (6)(a) it is immaterial whether the person knew that the conduct of the undertaking constituted the breach.

8 For the purposes of subsection (4)(a) or (c) references to the conduct of an undertaking are references to its conduct taken with the conduct of one or more other undertakings.

9 The maximum period of disqualification under this section is 15 years.

10 An application under this section for a disqualification order may be made by the OFT or by a specified regulator.

11 Section 60 of the Competition Act 1998 (c. 41) (consistent treatment of questions arising under United Kingdom and Commnunity law) applies in relation to any question arising by virtue of subsection (4)(a) or (b) above as it applies in relation to any question arising under Part 1 of that Act.

9B Competition undertakings

1 This section applies if—

a the OFT or a specified regulator thinks that in relation to any person an undertaking which is a company of which he is a director has committed or is committing a breach of competition law,

b the OFT or the specified regulator thinks that the conduct of the person as a director makes him unfit to be concerned in the management of a company, and

c the person offers to give the OFT or the specified regulator (as the case may be) a disqualification undertaking.

2 The OFT or the specified regulator (as the case may be) may accept a disqualification undertaking from the person instead of applying for or proceeding with an application for a disqualification order.

3 A disqualification undertaking is an undertaking by a person that for the period specified in the undertaking he will not—

a be a director of a company;

b act as receiver of a company’s property;

c in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company;

d act as an insolvency practitioner.

4 But a disqualification undertaking may provide that a prohibition falling within subsection (3)(a) to (c) does not apply if the person obtains the leave of the court.

5 The maximum period which may be specified in a disqualification undertaking is 15 years.

6 If a disqualification undertaking is accepted from a person who is already subject to a disqualification undertaking under this Act or to a disqualification order the periods specified in those undertakings or the undertaking and the order (as the case may be) run concurrently.

7 Subsections (4) to (8) of section 9A apply for the purposes of this section as they apply for the purposes of that section but in the application of subsection (5) of that section the reference to the court must be construed as a reference to the OFT or a specified regulator (as the case may be).

9C Competition investigations

1 If the OFT or a specified regulator has reasonable grounds for suspecting that a breach of competition law has occurred it or he (as the case may be) may carry out an investigation for the purpose of deciding whether to make an application under section 9A for a disqualification order.

2 For the purposes of such an investigation sections 26 to 30 of the Competition Act 1998 (c. 41) apply to the OFT and the specified regulators as they apply to the OFT for the purposes of an investigation under section 25 of that Act.

3 Subsection (4) applies if as a result of an investigation under this section the OFT or a specified regulator proposes to apply under section 9A for a disqualification order.

4 Before making the application the OFT or regulator (as the case may be) must—

a give notice to the person likely to be affected by the application, and

b give that person an opportunity to make representations.

9D Co-ordination

1 The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under sections 9A to 9C (relevant functions) which are exercisable concurrently by two or more persons.

2 Section 54(5) to (7) of the Competition Act 1998 (c. 41) applies to regulations made under this section as it applies to regulations made under that section and for that purpose in that section—

a references to Part 1 functions must be read as references to relevant functions;

b references to a regulator must be read as references to a specified regulator;

c a competent person also includes any of the specified regulators.

3 The power to make regulations under this section must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

4 Such a statutory instrument may—

a contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks appropriate;

b make different provision for different cases.

9E Interpretation

1 This section applies for the purposes of sections 9A to 9D.

2 Each of the following is a specified regulator for the purposes of a breach of competition law in relation to a matter in respect of which he or it has a function—

a the Director General of Telecommunications;

b the Gas and Electricity Markets Authority;

c the Director General of Water Services;

d the Rail Regulator;

e the Civil Aviation Authority.

3 The court is the High Court or (in Scotland) the Court of Session.

4 Conduct includes omission.

5 Director includes shadow director.

3 In section 1(1) (general provision about disqualification orders) for “section 6” substitute “ sections 6 and 9A ”.

4 In section 8A (variation etc of disqualification undertaking) after subsection (2) there is inserted the following subsection—

5 In section 8A for subsection (3) there is substituted—

6 In section 16(3) for “the Secretary of State or the official receiver or the liquidator” substitute “ a person falling within subsection (4) ”.

7 In section 16 after subsection (3) there is inserted the following subsection—

8 In section 17 (applications for leave under an order or undertaking) after subsection (3) there is inserted the following subsection—

9 In section 17(4) for “or 1A(1)(a)” substitute “ 1A(1)(a) or 9B(4) ”.

10 In section 17 after subsection (5) there are inserted the following subsections—

11 In section 18 (register of disqualification orders and undertakings) for subsection (2A) substitute—

Miscellaneous¶

205 Super-complaints to regulators other than CMA ¶

1 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.

2 An order under this section—

a shall be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

3 In this section—

“regulator” has the meaning given in section 54(1) of the 1998 Act; and
“specified” means specified in the order.

206 Power to modify Schedule 8¶

1 The Secretary of State may by order made by statutory instrument modify Schedule 8.

2 An order under this section may make—

a different provision for different cases or different purposes;

b such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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).

9 Before making an order under this section, the Secretary of State shall consult the CMA.

10 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.

207 Repeal of Schedule 4 to the 1998 Act¶

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.

208 Repeal of Part 6 of Fair Trading Act 1973¶

Sections 78 to 80 of the 1973 Act (references to Commission other than monopoly and merger references) shall cease to have effect.

^F372209 Reform of EU competition law ¶

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^F940Part 8 Enforcement of certain consumer legislation¶

^F940Introduction¶

^F940210 Consumers¶

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^F940211 Domestic infringements¶

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^F940212 Schedule 13 infringements¶

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^F940213 Enforcers¶

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^F940Enforcement orders and interim enforcement orders¶

^F940214 Consultation¶

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^F940215 Applications¶

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^F940216 Applications: directions by CMA ¶

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^F940217 Enforcement orders¶

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^F940218 Interim enforcement order¶

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^F940Online interface orders and interim online interface orders¶

^F940218ZA Applications¶

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^F940218ZB Online interface orders¶

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^F940218ZC Interim online interface orders¶

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^F940218ZD Online interface orders: supplementary¶

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^F940Enforcement procedure: supplementary¶

^F940218A Unfair commercial practices: substantiation of claims¶

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^F940219 Undertakings¶

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^F940219A Definition of enhanced consumer measures¶

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^F940219B Inclusion of enhanced consumer measures etc.¶

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^F940219C Availability of enhanced consumer measures to private enforcers¶

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^F940220 Further proceedings¶

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^F940221 Community infringements: proceedings¶

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^F940222 Bodies corporate: accessories¶

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^F940223 Bodies corporate: orders¶

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^F940Information¶

^F940224 CMA¶

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^F940225 Other enforcers¶

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^F940226 Notices: procedure¶

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^F940227 Notices: enforcement¶

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^F940227A Power to enter premises without warrant¶

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^F940227B Powers exercisable on the premises¶

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^F940227C Power to enter premises with warrant¶

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^F940227D Ancillary provisions about powers of entry¶

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^F940227E Obstructing, or failing to co-operate with, powers of entry¶

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^F940227F Retention of documents and goods¶

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^F940Miscellaneous¶

^F940223A Investigatory powers¶

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^F940228 Evidence¶

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^F940229 Advice and information¶

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^F940230 Notice to OFT of intended prosecution¶

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^F940231 Notice of convictions and judgments to CMA ¶

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^F940Interpretation¶

^F940232 Goods and services¶

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^F940233 Person supplying goods¶

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^F940234 Supply of services¶

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^F940235 Injunctions Directive¶

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^F940235A CPC Regulation¶

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^F940235B Dual enforcers¶

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^F940Crown¶

^F940236 Crown¶

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^C375^C504^C448^C413^C317^C348 Part 9 Information¶

Restrictions on disclosure¶

^C329237 General restriction¶

1 This section applies to specified information which relates to—

a the affairs of an individual;

b any business of an undertaking.

2 Such information must not be disclosed—

a during the lifetime of the individual, or

b while the undertaking continues in existence,

unless the disclosure is permitted under this Part.

3 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—

a that subsection;

b any other enactment or rule of law prohibiting or restricting the disclosure of the information.

4 Nothing in this Part authorises a disclosure of information which contravenes the data protection legislation.

5 Nothing in this Part affects the Competition Appeal Tribunal.

6 This Part (except section 244) does not affect any power or duty to disclose information which exists apart from this Part.

7 In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

238 Information¶

1 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—

a Part 1, 3, 4, 6 or 7;

b an enactment specified in Schedule 14;

c such subordinate legislation as the Secretary of State may by order specify for the purposes of this subsection.

2 It is immaterial whether information comes to a public authority before or after the passing of this Act.

3 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).

4 In subsection (1) the reference to an enactment includes a reference to an enactment contained in—

a an Act of the Scottish Parliament;

b Northern Ireland legislation;

c subordinate legislation.

5 The Secretary of State may by order amend Schedule 14.

6 The power to make an order under subsection (5) includes power to add, vary or remove a reference to any provision of—

a an Act of the Scottish Parliament;

b Northern Ireland legislation.

7 An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

8 This section applies for the purposes of this Part.

Permitted disclosure¶

239 Consent¶

1 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.

2 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.

3 If the information relates to the affairs of an individual the consent of the individual is required.

4 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.

5 For the purposes of subsection (4) consent may be given—

a in the case of a company by a director, secretary or other officer of the company;

b in the case of a partnership by a partner;

c in the case of an unincorporated body or association by a person concerned in the management or control of the body or association.

^F1127240 EU obligations¶

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241 Statutory functions¶

1 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.

2 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.

2A 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).

3 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—

a this Act;

b an enactment specified in Schedule 15;

c such subordinate legislation as the Secretary of State may by order specify for the purposes of this subsection.

4 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.

5 In subsection (1) the reference to an enactment includes a reference to an enactment contained in—

a an Act of the Scottish Parliament;

b Northern Ireland legislation;

c subordinate legislation.

6 The Secretary of State may by order amend Schedule 15.

7 The power to make an order under subsection (6) includes power to add, vary or remove a reference to any provision of—

a an Act of the Scottish Parliament;

b Northern Ireland legislation.

8 An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

241A Civil proceedings¶

1 A public authority which holds prescribed information to which section 237 applies may disclose that information to any person—

a for the purposes of, or in connection with, prescribed civil proceedings (including prospective proceedings) in the United Kingdom or elsewhere, or

b for the purposes of obtaining legal advice in relation to such proceedings, or

c otherwise for the purposes of establishing, enforcing or defending legal rights that are or may be the subject of such proceedings.

2 Subsection (1) does not apply to—

a 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;

^F1435b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c information which comes to a public authority in connection with an investigation under Part 3 or 4 or section 174 of this Act;

d information which comes to a public authority in connection with an investigation under the Competition Act 1998 (c. 41).

3 In subsection (1) “prescribed” means prescribed by order of the Secretary of State.

4 An order under this section—

a 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;

b 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;

c must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

5 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).

242 Criminal proceedings¶

1 A public authority which holds information to which section 237 applies may disclose that information to any person—

a in connection with the investigation of any criminal offence in any part of the United Kingdom;

b for the purposes of any criminal proceedings there;

c for the purpose of any decision whether to start or bring to an end such an investigation or proceedings.

2 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.

3 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.

^F653243 Overseas disclosures¶

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243A Overseas disclosures for both overseas and domestic purposes¶

1 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—

a the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment, and

b the exercise by the overseas public authority of any function which it has relating to—

i carrying out investigations in connection with the enforcement of any relevant law by means of civil proceedings;

ii bringing civil proceedings for the enforcement of such law or the conduct of such proceedings;

iii the investigation of crime;

iv bringing criminal proceedings or the conduct of such proceedings;

v deciding whether to start or bring to an end such investigations or proceedings.

2 Subsection (1) does not apply to any of the following—

a 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);

b information which comes to a public authority in connection with an investigation under Part 4 or section 174 of this Act;

c information which comes to a public authority in connection with an investigation under section 11 of the Competition Act 1980;

d legacy information within the meaning of subsection (5).

3 In subsection (1)(a), the reference to an enactment includes a reference to an enactment contained in—

a an Act of the Scottish Parliament;

b Northern Ireland legislation;

c subordinate legislation.

4 In subsection (1)(b)(i), “relevant law” means—

a this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);

b any enactment, obligation or rule of law specified in Schedule 15 to the Digital Markets, Competition and Consumers Act 2024 (consumer protection enactments);

c 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).

5 In subsection (2)(d), “legacy information” means information which—

a 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;

b came to a public authority—

i before the coming into force of this section, and

ii 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;

c came to a public authority—

i before 1 July 2021, and

ii in connection with an investigation under Part 3 of the Enterprise Act 2002.

243B Overseas disclosures for overseas purposes only¶

1 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).

2 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.

243C Overseas disclosures for designated cooperation arrangement purposes¶

1 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.

2 “Designated cooperation arrangement” means an arrangement or agreement that meets all of Conditions A to D.

3 Condition A is that the arrangement or agreement is between—

a a public authority and an overseas public authority, or

b the United Kingdom and a country or territory.

4 Condition B is that the arrangement or agreement relates to cooperation between—

a the public authority and the overseas public authority, or

b public authorities in the United Kingdom and persons or bodies in that country or territory,

for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).

5 Condition C is that the arrangement or agreement provides for—

a the overseas public authority and the public authority, or

b a person or body in that country or territory and public authorities in the United Kingdom,

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).

6 Condition D is that the arrangement or agreement is designated in regulations made by the Secretary of State.

7 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—

a the use for another purpose of information disclosed for a purpose permitted under or by virtue of the arrangement or agreement;

b the further disclosure of such information.

8 The Secretary of State may not designate an arrangement or agreement in regulations under subsection (6) unless the Secretary of State is satisfied that—

a 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

b the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.

9 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.

10 Regulations under subsection (6) are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

243D Use and further disclosure of information disclosed under sections 243A and 243B¶

1 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”).

2 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—

a 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

b the discloser consents to the use of that information for that purpose.

3 The information must not be further disclosed by the overseas public authority unless—

a 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

b the discloser consents to the further disclosure of the information for that purpose.

4 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”).

5 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—

a 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

b the discloser consents to the use of that information for that purpose.

6 The information must not be further disclosed by the overseas public authority unless—

a 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

b the discloser consents to the further disclosure of the information for that purpose.

7 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.

8 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.

243E Directions by the Secretary of State relating to overseas disclosures under sections 243A and 243B¶

1 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—

a 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);

b 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).

2 In subsection (1), “specified” means specified in the direction.

2A 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.

3 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.

243F Relevant considerations relating to overseas disclosures under sections 243A and 243B¶

1 This section applies when a public authority is deciding whether to make a disclosure under section 243A or 243B.

2 In deciding whether to make a disclosure under section 243A, the public authority must have regard in particular to the following considerations—

a 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;

b whether the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.

3 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—

a whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;

b 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;

c 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;

d 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.

4 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.

5 The Secretary of State may by regulations amend subsections (2) and (3) so as to—

a alter any consideration for the time being included in those subsections;

b add further considerations;

c remove any considerations.

6 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.

^C352244 Specified information: considerations relevant to disclosure¶

1 A public authority must have regard to the following considerations before disclosing any specified information (within the meaning of section 238(1)).

2 The first consideration is the need to exclude from disclosure (so far as practicable) any sensitive information.

3 The second consideration is the need to exclude from disclosure (so far as practicable) any commercial information or private information.

4 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.

Offences¶

245 Offences¶

1 A person commits an offence if he discloses information to which section 237 applies in contravention of section 237(2).

2 A person commits an offence if he discloses information in contravention of a direction given under section 243E.

3 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.

4 A person who commits an offence under this section is liable—

a on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both;

b on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both.

General¶

^F721246 Subordinate legislation¶

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

246A Interpretation¶

In this Part—

“commercial information” means information relating to any business of an undertaking whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks might significantly harm the undertaking’s legitimate business interests;
“confidential information” means commercial information, private information or sensitive information;
“overseas public authority” means a person or body in any country or territory outside the United Kingdom which appears to the discloser (within the meaning of any of sections 243A to 243C) to exercise functions of a public nature in relation to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b);
“private information” mean information relating to the private affairs of an individual whose disclosure the public authority concerned, or for the purposes of section 243C the Secretary of State, thinks might significantly harm the individual’s interests;
“sensitive information” means information whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks would be contrary to the public interest;
“subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 and includes an instrument made under—
1. an Act of the Scottish Parliament;
2. Northern Ireland legislation.

247 Repeals¶

The following enactments (which make provision as to the disclosure of certain information) shall cease to have effect—

a section 28(5) and (5A) of the Trade Descriptions Act 1968 (c. 29);

b sections 30(3) and 133 of the 1973 Act;

c paragraph 12 of the Schedule to the Prices Act 1974 (c. 24);

d section 174 of the Consumer Credit Act 1974 (c. 39);

e section 10 of the Estate Agents Act 1979 (c. 38);

f section 19(1) to (3), (4)(c), (d) and (f) and (5) and (6) of the Competition Act 1980 (c. 21);

g section 38 of the Consumer Protection Act 1987 (c. 43);

^F382h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i paragraph 5 of Schedule 2 to the Timeshare Act 1992 (c. 35);

j sections 55 and 56 of and Schedule 11 to the Competition Act 1998 (c. 41);

k section 351(1) to (3) and (7) of and Schedule 19 to the Financial Services and Markets Act 2000 (c. 8).

Part 10 Insolvency¶

Companies etc.¶

^C338^C412^C514^C499^C353^C484^C393^C380^C496248 Replacement of Part II of Insolvency Act 1986¶

1 The following shall be substituted for Part II of the Insolvency Act 1986 (c. 45) (administration orders)—

2 The Schedule B1 set out in Schedule 16 to this Act shall be inserted after Schedule A1 to the Insolvency Act 1986.

3 Schedule 17 (minor and consequential amendments relating to administration) shall have effect.

4 The Secretary of State may by order amend an enactment in consequence of this section.

5 An order under subsection (4)—

a must be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

^C330^C446249 Special administration regimes¶

1 Section 248 shall have no effect in relation to—

a a company holding an appointment under Chapter I of Part II of the Water Industry Act 1991 (c. 56) (water and sewerage undertakers),

aa 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,

b 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)),

c a licence company within the meaning of section 26 of the Transport Act 2000 (c. 38) (air traffic services),

d 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

e a building society within the meaning of section 119 of the Building Societies Act 1986 (c. 53) (interpretation).

2 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.

3 But the effect of subsection (2) in respect of a particular class of company or society may be modified by order of—

a the Treasury, in the case of building societies, or

b the Secretary of State, in any other case.

4 An order under subsection (3) may make consequential amendment of an enactment.

5 An order under subsection (3)—

a must be made by statutory instrument, and

b may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

6 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.

^I3250 Prohibition of appointment of administrative receiver¶

1 The following shall be inserted after Chapter III of Part III of the Insolvency Act 1986 (receivership: receivers’ powers)—

CHAPTER IV PROHIBITION OF APPOINTMENT OF ADMINISTRATIVE RECEIVER

72A Floating charge holder not to appoint administrative receiver

1 The holder of a qualifying floating charge in respect of a company’s property may not appoint an administrative receiver of the company.

2 In Scotland, the holder of a qualifying floating charge in respect of a company’s property may not appoint or apply to the court for the appointment of a receiver who on appointment would be an administrative receiver of property of the company.

3 In subsections (1) and (2)—

“holder of a qualifying floating charge in respect of a company’s property” has the same meaning as in paragraph 14 of Schedule B1 to this Act, and
“administrative receiver” has the meaning given by section 251.

4 This section applies—

a to a floating charge created on or after a date appointed by the Secretary of State by order made by statutory instrument, and

b in spite of any provision of an agreement or instrument which purports to empower a person to appoint an administrative receiver (by whatever name).

5 An order under subsection (4)(a) may—

a make provision which applies generally or only for a specified purpose;

b make different provision for different purposes;

c make transitional provision.

6 This section is subject to the exceptions specified in sections 72B to 72G.

72B First exception: capital market

1 Section 72A does not prevent the appointment of an administrative receiver in pursuance of an agreement which is or forms part of a capital market arrangement if—

a a party incurs or, when the agreement was entered into was expected to incur, a debt of at least £50 million under the arrangement, and

b the arrangement involves the issue of a capital market investment.

2 In subsection (1)—

“capital market arrangement” means an arrangement of a kind described in paragraph 1 of Schedule 2A, and
“capital market investment” means an investment of a kind described in paragraph 2 or 3 of that Schedule.

72C Second exception: public-private partnership

1 Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—

a is a public-private partnership project, and

b includes step-in rights.

2 In this section “public-private partnership project” means a project—

a the resources for which are provided partly by one or more public bodies and partly by one or more private persons, or

b which is designed wholly or mainly for the purpose of assisting a public body to discharge a function.

3 In this section—

“step-in rights” has the meaning given by paragraph 6 of Schedule 2A, and
“project company” has the meaning given by paragraph 7 of that Schedule.

72D Third exception: utilities

1 Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—

a is a utility project, and

b includes step-in rights.

2 In this section—

a “utility project” means a project designed wholly or mainly for the purpose of a regulated business,

b “regulated business” means a business of a kind listed in paragraph 10 of Schedule 2A,

c “step-in rights” has the meaning given by paragraph 6 of that Schedule, and

d “project company” has the meaning given by paragraph 7 of that Schedule.

72E Fourth exception: project finance

1 Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—

a is a financed project, and

b includes step-in rights.

2 In this section—

a a project is “financed” if under an agreement relating to the project a project company incurs, or when the agreement is entered into is expected to incur, a debt of at least £50 million for the purposes of carrying out the project,

b “project company” has the meaning given by paragraph 7 of Schedule 2A, and

c “step-in rights” has the meaning given by paragraph 6 of that Schedule.

72F Fifth exception: financial market

Section 72A does not prevent the appointment of an administrative receiver of a company by virtue of—

a a market charge within the meaning of section 173 of the Companies Act 1989 (c. 40),

b a system-charge within the meaning of the Financial Markets and Insolvency Regulations 1996 (S.I. 1996/1469),

c a collateral security charge within the meaning of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979).

72G Sixth exception: registered social landlord

Section 72A does not prevent the appointment of an administrative receiver of a company which is registered as a social landlord under Part I of the Housing Act 1996 (c. 52) or under Part 3 of the Housing (Scotland) Act 2001 (asp 10).

72H Sections 72A to 72G: supplementary

1 Schedule 2A (which supplements sections 72B to 72G) shall have effect.

2 The Secretary of State may by order—

a insert into this Act provision creating an additional exception to section 72A(1) or (2);

b provide for a provision of this Act which creates an exception to section 72A(1) or (2) to cease to have effect;

c amend section 72A in consequence of provision made under paragraph (a) or (b);

d amend any of sections 72B to 72G;

e amend Schedule 2A.

3 An order under subsection (2) must be made by statutory instrument.

4 An order under subsection (2) may make—

a provision which applies generally or only for a specified purpose;

b different provision for different purposes;

c consequential or supplementary provision;

d transitional provision.

5 An order under subsection (2)—

a in the case of an order under subsection (2)(e), shall be subject to annulment in pursuance of a resolution of either House of Parliament,

b in the case of an order under subsection (2)(d) varying the sum specified in section 72B(1)(a) or 72E(2)(a) (whether or not the order also makes consequential or transitional provision), shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

c in the case of any other order under subsection (2)(a) to (d), may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

2 The Schedule 2A set out in Schedule 18 to this Act shall be inserted after Schedule 2 to the Insolvency Act 1986 (c. 45).

251 Abolition of Crown preference¶

1 The following paragraphs of Schedule 6 to the Insolvency Act 1986 (categories of preferential debts) shall cease to have effect—

a paragraphs 1 and 2 (debts due to Inland Revenue),

b paragraphs 3 to 5C(debts due to Customs and Excise), and

c paragraphs 6 and 7(social security contributions).

2 The following paragraphs of Schedule 3 to the Bankruptcy (Scotland) Act 1985 (c. 66) (list of preferred debts) shall cease to have effect—

a paragraph 1 (debts due to Inland Revenue),

b paragraph 2 (debts due to Customs and Excise), and

c paragraph 3 (social security contributions).

3 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) ”.

252 Unsecured creditors¶

The following shall be inserted after section 176 of the Insolvency Act 1986 (winding up: preferential debt)—

Property subject to floating charge

176A Share of assets for unsecured creditors

1 This section applies where a floating charge relates to property of a company—

a which has gone into liquidation,

b which is in administration,

c of which there is a provisional liquidator, or

d of which there is a receiver.

2 The liquidator, administrator or receiver—

a shall make a prescribed part of the company’s net property available for the satisfaction of unsecured debts, and

b shall not distribute that part to the proprietor of a floating charge except in so far as it exceeds the amount required for the satisfaction of unsecured debts.

3 Subsection (2) shall not apply to a company if—

a the company’s net property is less than the prescribed minimum, and

b the liquidator, administrator or receiver thinks that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits.

4 Subsection (2) shall also not apply to a company if or in so far as it is disapplied by—

a a voluntary arrangement in respect of the company, or

b a compromise or arrangement agreed under section 425 of the Companies Act (compromise with creditors and members).

5 Subsection (2) shall also not apply to a company if—

a the liquidator, administrator or receiver applies to the court for an order under this subsection on the ground that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits, and

b the court orders that subsection (2) shall not apply.

6 In subsections (2) and (3) a company’s net property is the amount of its property which would, but for this section, be available for satisfaction of claims of holders of debentures secured by, or holders of, any floating charge created by the company.

7 An order under subsection (2) prescribing part of a company’s net property may, in particular, provide for its calculation—

a as a percentage of the company’s net property, or

b as an aggregate of different percentages of different parts of the company’s net property.

8 An order under this section—

a must be made by statutory instrument, and

b shall be subject to annulment pursuant to a resolution of either House of Parliament.

9 In this section—

“floating charge” means a charge which is a floating charge on its creation and which is created after the first order under subsection (2)(a) comes into force, and
“prescribed” means prescribed by order by the Secretary of State.

10 An order under this section may include transitional or incidental provision.

253 Liquidator’s powers¶

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—

^C339^C390^C510^C482^C483^C433^C437254 Application of insolvency law to foreign company¶

1 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.

2 An order under this section—

a may make provision generally or for a specified purpose only,

b may make different provision for different purposes, and

c may make transitional, consequential or incidental provision.

3 An order under this section—

a must be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

255 Application of law about company arrangement or administration to non-company¶

1 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—

^F1547a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b a society registered under section 7(1)(b), (c), (d), (e) or (f) of the Friendly Societies Act 1974 (c. 46),

c a friendly society within the meaning of the Friendly Societies Act 1992 (c. 40), or

d an unregistered friendly society.

2 In subsection (1) “company arrangement or administration provision” means—

a a provision of Part I of the Insolvency Act 1986 (company voluntary arrangements),

b a provision of Part II of that Act (administration), ^F1660...

c Part 26 of the Companies Act 2006 (c. 6) (compromise or arrangement with creditors), and

d Part 26A of that Act (compromise or arrangement with creditors where company in financial difficulty).

3 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 a private registered provider of social housing, or

b 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) .

4 An order under this section—

a may make provision generally or for a specified purpose only,

b may make different provision for different purposes, and

c may make transitional, consequential or incidental provision.

5 Provision by virtue of subsection (4)(c) may, in particular—

a apply an enactment (with or without modification);

b amend an enactment.

6 An order under this section—

a must be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Individuals¶

256 Duration of bankruptcy¶

1 The following shall be substituted for section 279 of the Insolvency Act 1986 (c. 45) (duration of bankruptcy)—

279 Duration

1 A bankrupt is discharged from bankruptcy at the end of the period of one year beginning with the date on which the bankruptcy commences.

2 If before the end of that period the official receiver files with the court a notice stating that investigation of the conduct and affairs of the bankrupt under section 289 is unnecessary or concluded, the bankrupt is discharged when the notice is filed.

3 On the application of the official receiver or the trustee of a bankrupt’s estate, the court may order that the period specified in subsection (1) shall cease to run until—

a the end of a specified period, or

b the fulfilment of a specified condition.

4 The court may make an order under subsection (3) only if satisfied that the bankrupt has failed or is failing to comply with an obligation under this Part.

5 In subsection (3)(b) “condition” includes a condition requiring that the court be satisfied of something.

6 In the case of an individual who is adjudged bankrupt on a petition under section 264(1)(d)—

a subsections (1) to (5) shall not apply, and

b the bankrupt is discharged from bankruptcy by an order of the court under section 280.

7 This section is without prejudice to any power of the court to annul a bankruptcy order.

2 Schedule 19 (which makes transitional provision in relation to this section)—

a shall have effect, and

b is without prejudice to the generality of section 276.

257 Post-discharge restrictions¶

1 The following shall be inserted after section 281 of the Insolvency Act 1986 (c. 45) (bankruptcy: effect of discharge)—

2 The Schedule 4A set out in Schedule 20 to this Act shall be inserted after Schedule 4 to the Insolvency Act 1986.

3 The amendments set out in Schedule 21 (which specify the effect of a bankruptcy restrictions order or undertaking) shall have effect.

258 Investigation by official receiver¶

The following shall be substituted for section 289 of the Insolvency Act 1986 (official receiver’s duty to investigate)—

289 Investigatory duties of official receiver

1 The official receiver shall—

a investigate the conduct and affairs of each bankrupt (including his conduct and affairs before the making of the bankruptcy order), and

b make such report (if any) to the court as the official receiver thinks fit.

2 Subsection (1) shall not apply to a case in which the official receiver thinks an investigation under that subsection unnecessary.

3 Where a bankrupt makes an application for discharge under section 280—

a the official receiver shall make a report to the court about such matters as may be prescribed, and

b the court shall consider the report before determining the application.

4 A report by the official receiver under this section shall in any proceedings be prima facie evidence of the facts stated in it.

259 Income payments order¶

1 Section 310 of the Insolvency Act 1986 (income payments order) shall be amended as follows.

2 In subsection (1) omit “, on the application of the trustee,”.

3 After subsection (1) insert—

4 For subsection (6) substitute—

260 Income payments agreement¶

The following shall be inserted after section 310 of the Insolvency Act 1986 (c. 45) (income payments order)—

310A Income payments agreement

1 In this section “income payments agreement” means a written agreement between a bankrupt and his trustee or between a bankrupt and the official receiver which provides—

a that the bankrupt is to pay to the trustee or the official receiver an amount equal to a specified part or proportion of the bankrupt’s income for a specified period, or

b that a third person is to pay to the trustee or the official receiver a specified proportion of money due to the bankrupt by way of income for a specified period.

2 A provision of an income payments agreement of a kind specified in subsection (1)(a) or (b) may be enforced as if it were a provision of an income payments order.

3 While an income payments agreement is in force the court may, on the application of the bankrupt, his trustee or the official receiver, discharge or vary an attachment of earnings order that is for the time being in force to secure payments by the bankrupt.

4 The following provisions of section 310 shall apply to an income payments agreement as they apply to an income payments order—

a subsection (5) (receipts to form part of estate), and

b subsections (7) to (9) (meaning of income).

5 An income payments agreement must specify the period during which it is to have effect; and that period—

a may end after the discharge of the bankrupt, but

b may not end after the period of three years beginning with the date on which the agreement is made.

6 An income payments agreement may (subject to subsection (5)(b)) be varied—

a by written agreement between the parties, or

b by the court on an application made by the bankrupt, the trustee or the official receiver.

7 The court—

a may not vary an income payments agreement so as to include provision of a kind which could not be included in an income payments order, and

b shall grant an application to vary an income payments agreement if and to the extent that the court thinks variation necessary to avoid the effect mentioned in section 310(2).

261 Bankrupt’s home¶

1 The following shall be inserted after section 283 of the Insolvency Act 1986 (definition of bankrupt’s estate)—

283A Bankrupt’s home ceasing to form part of estate

1 This section applies where property comprised in the bankrupt’s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—

a the bankrupt,

b the bankrupt’s spouse, or

c a former spouse of the bankrupt.

2 At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall—

a cease to be comprised in the bankrupt’s estate, and

b vest in the bankrupt (without conveyance, assignment or transfer).

3 Subsection (2) shall not apply if during the period mentioned in that subsection—

a the trustee realises the interest mentioned in subsection (1),

b the trustee applies for an order for sale in respect of the dwelling-house,

c the trustee applies for an order for possession of the dwelling-house,

d the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or

e the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.

4 Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—

a cease to be comprised in the bankrupt’s estate, and

b vest in the bankrupt (without conveyance, assignment or transfer).

5 If the bankrupt does not inform the trustee or the official receiver of his interest in a property before the end of the period of three months beginning with the date of the bankruptcy, the period of three years mentioned in subsection (2)—

a shall not begin with the date of the bankruptcy, but

b shall begin with the date on which the trustee or official receiver becomes aware of the bankrupt’s interest.

6 The court may substitute for the period of three years mentioned in subsection (2) a longer period—

a in prescribed circumstances, and

b in such other circumstances as the court thinks appropriate.

7 The rules may make provision for this section to have effect with the substitution of a shorter period for the period of three years mentioned in subsection (2) in specified circumstances (which may be described by reference to action to be taken by a trustee in bankruptcy).

8 The rules may also, in particular, make provision—

a requiring or enabling the trustee of a bankrupt’s estate to give notice that this section applies or does not apply;

b about the effect of a notice under paragraph (a);

c requiring the trustee of a bankrupt’s estate to make an application to the Chief Land Registrar.

9 Rules under subsection (8)(b) may, in particular—

a disapply this section;

b enable a court to disapply this section;

c make provision in consequence of a disapplication of this section;

d enable a court to make provision in consequence of a disapplication of this section;

e make provision (which may include provision conferring jurisdiction on a court or tribunal) about compensation.

2 Section 313 of the Insolvency Act 1986 (c. 45) (charge on bankrupt’s home) shall be amended as follows—

a 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, ”,

b after subsection (2) insert—

and

c at the end insert—

3 The following shall be inserted after section 313 of that Act—

313A Low value home: application for sale, possession or charge

1 This section applies where—

a property comprised in the bankrupt’s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—

i the bankrupt,

ii the bankrupt’s spouse, or

iii a former spouse of the bankrupt, and

b the trustee applies for an order for the sale of the property, for an order for possession of the property or for an order under section 313 in respect of the property.

2 The court shall dismiss the application if the value of the interest is below the amount prescribed for the purposes of this subsection.

3 In determining the value of an interest for the purposes of this section the court shall disregard any matter which it is required to disregard by the order which prescribes the amount for the purposes of subsection (2).

4 The following shall be inserted after section 307(2)(a) of the Insolvency Act 1986 (c. 45) (after-acquired property: exclusions)—

5 In section 384(2) of that Act (prescribed amounts) after “section 273;” insert—

6 In section 418(1) of that Act (monetary limits in bankruptcy) after the entry for section 273 insert—

7 In subsection (8)—

a “pre-commencement bankrupt” means an individual who is adjudged bankrupt on a petition presented before subsection (1) above comes into force, and

b “the transitional period” is the period of three years beginning with the date on which subsection (1) above comes into force.

8 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—

a cease to be comprised in the estate, and

b vest in the bankrupt (without conveyance, assignment or transfer).

9 But subsection (8) shall not apply if before or during the transitional period—

a 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

b the trustee obtains any order of a court, or makes any agreement with the bankrupt, in respect of the interest or the dwelling-house.

10 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 a reference to the period mentioned in section 283A(2) shall be construed as a reference to the transitional period,

b 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

c 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).

262 Powers of trustee in bankruptcy¶

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—

263 Repeal of certain bankruptcy offences¶

The following sections of the Insolvency Act 1986 shall cease to have effect—

a section 361 (offence of failure to keep proper accounting records), and

b section 362 (offence of gambling and speculation).

264 Individual voluntary arrangement¶

1 Schedule 22 (which makes provision about individual voluntary arrangements) shall have effect.

^F13262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

265 Disqualification from office: justice of the peace¶

^F76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

266 Disqualification from office: Parliament¶

1 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) ”)—

426A Disqualification from Parliament (England and Wales)

1 A person in respect of whom a bankruptcy restrictions order has effect shall be disqualified—

a from membership of the House of Commons,

b from sitting or voting in the House of Lords, and

c from sitting or voting in a committee of the House of Lords or a joint committee of both Houses.

2 If a member of the House of Commons becomes disqualified under this section, his seat shall be vacated.

3 If a person who is disqualified under this section is returned as a member of the House of Commons, his return shall be void.

4 No writ of summons shall be issued to a member of the House of Lords who is disqualified under this section.

5 If a court makes a bankruptcy restrictions order or interim order in respect of a member of the House of Commons or the House of Lords the court shall notify the Speaker of that House.

6 If the Secretary of State accepts a bankruptcy restrictions undertaking made by a member of the House of Commons or the House of Lords, the Secretary of State shall notify the Speaker of that House.

426B Devolution

1 If a court makes a bankruptcy restrictions order or interim order in respect of a member of the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales, the court shall notify the presiding officer of that body.

2 If the Secretary of State accepts a bankruptcy restrictions undertaking made by a member of the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales, the Secretary of State shall notify the presiding officer of that body.

426C Irrelevance of privilege

1 An enactment about insolvency applies in relation to a member of the House of Commons or the House of Lords irrespective of any Parliamentary privilege.

2 In this section “enactment” includes a provision made by or under—

a an Act of the Scottish Parliament, or

b Northern Ireland legislation.

2 In section 427 of the Insolvency Act 1986 the following shall cease to have effect—

a in subsection (1), the words “England and Wales or”, and

b subsection (7).

3 The Secretary of State may by order—

a 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);

b make consequential amendment of section 426A or 426B of that Act (as inserted by subsection (1) above);

c make other consequential amendment of an enactment.

4 An order under this section may make transitional, consequential or incidental provision.

5 An order under this section—

a must be made by statutory instrument, and

b may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

267 Disqualification from office: local government¶

1 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)—

2 Section 81(1) and (2) of that Act (which amplify the provision substituted by subsection (1) above) shall cease to have effect.

^C331^C341268 Disqualification from office: general¶

1 The Secretary of State may make an order under this section in relation to a disqualification provision.

2 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—

a being elected or appointed to an office or position,

b holding an office or position, or

c becoming or remaining a member of a body or group.

3 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.

4 An order under subsection (1) may repeal or revoke the disqualification provision.

5 An order under subsection (1) may amend, or modify the effect of, the disqualification provision—

a so as to reduce the class of bankrupts to whom the disqualification provision applies;

b so as to extend the disqualification provision to some or all individuals who are subject to a bankruptcy restrictions regime;

c so that the disqualification provision applies only to some or all individuals who are subject to a bankruptcy restrictions regime;

d so as to make the application of the disqualification provision wholly or partly subject to the discretion of a specified person, body or group.

6 An order by virtue of subsection (5)(d) may provide for a discretion to be subject to—

a the approval of a specified person or body;

b appeal to a specified person or body.

7 An order by virtue of subsection (5)(d)^F100. . . may provide for a discretion to be subject to appeal to a specified court or tribunal ; but any such order must—

a if it relates to England and Wales, be made with the concurrence of the Lord Chief Justice of England and Wales;

b if it relates to Northern Ireland, be made with the concurrence of the Lord Chief Justice of Northern Ireland

8 The Secretary of State may specify himself for the purposes of subsection (5)(d) or (6)(a) or (b).

9 In this section “bankrupt” means an individual—

a who has been made bankrupt (under Part 9 of the Insolvency Act 1986),

aa who has been adjudged bankrupt by a court in Northern Ireland,

b whose estate has been sequestrated by a court in Scotland, or

c 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.

10 In this section “bankruptcy restrictions regime” means an order or undertaking—

a under Schedule 4A to the Insolvency Act 1986 (c. 45) (bankruptcy restrictions orders), or

b 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.

11 In this section—

“body” includes Parliament and any other legislative body, and
“provision” means—
1. a provision made by an Act of Parliament passed before or in the same Session as this Act, and
2. a provision made, before or in the same Session as this Act, under an Act of Parliament.

12 An order under this section—

a may make provision generally or for a specified purpose only,

b may make different provision for different purposes, and

c may make transitional, consequential or incidental provision.

13 An order under this section—

a must be made by statutory instrument, and

b may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

14 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—

a is made by the National Assembly for Wales, or

b relates to a function of the National Assembly.

15 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).

16 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).

17 The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (7)—

a the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

b a Lord Justice of Appeal (as defined in section 88 of that Act).

269 Minor and consequential amendments¶

Schedule 23 (minor and consequential amendments relating to individual insolvency) shall have effect.

Money¶

^I4270 Fees¶

1 The following shall be inserted after section 415 of the Insolvency Act 1986 (c. 45) (fees orders: individual insolvency)—

415A Fees orders (general)

1 The Secretary of State—

a may by order require a body to pay a fee in connection with the grant or maintenance of recognition of the body under section 391, and

b may refuse recognition, or revoke an order of recognition under section 391(1) by a further order, where a fee is not paid.

2 The Secretary of State—

a may by order require a person to pay a fee in connection with the grant or maintenance of authorisation of the person under section 393, and

b may disregard an application or withdraw an authorisation where a fee is not paid.

3 The Secretary of State may by order require the payment of fees in respect of—

a the operation of the Insolvency Services Account;

b payments into and out of that Account.

4 The following provisions of section 414 apply to fees under this section as they apply to fees under that section—

a subsection (3) (manner of payment),

b subsection (5) (additional provision),

c subsection (6) (statutory instrument),

d subsection (7) (payment into Consolidated Fund), and

e subsection (9) (saving for rules of court).

2 An order made by virtue of subsection (1) may relate to the maintenance of recognition or authorisation granted before this section comes into force.

^F2323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 In section 440(2)(c) of that Act (provisions not extending to Scotland) after “415,” there shall be inserted “ 415A(3), ”.

271 Insolvency Services Account: interest¶

1 The following shall be inserted after paragraph 16 of Schedule 8 to the Insolvency Act 1986 (company insolvency rules: money)—

2 The following shall be inserted after paragraph 21 of Schedule 9 to the Insolvency Act 1986 (individual insolvency rules: money)—

272 Insolvency Services Accounts¶

1 Section 405 of the Insolvency Act 1986 (operation of Investment Account) shall cease to have effect.

2 The following shall be substituted for section 408 of that Act (recourse to Consolidated Fund)—

Part 11 Supplementary¶

273 Interpretation¶

In this Act—

“the 1973 Act” means the Fair Trading Act 1973 (c. 41);
“the 1998 Act” means the Competition Act 1998 (c. 41);
“the CMA” means the Competition and Markets Authority;
“the Director” means the Director General of Fair Trading; and
^F1395...

274 Provision of financial assistance for consumer purposes¶

The Secretary of State may give financial assistance to any person for the purpose of assisting—

a activities which the Secretary of State considers are of benefit to consumers; or

b the provision of—

i advice or information about consumer matters;

ii educational materials relating to consumer matters; or

iii advice or information to the Secretary of State in connection with the formulation of policy in respect of consumer matters.

275 Financial provision¶

There shall be paid out of money provided by Parliament—

a 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

b any increase attributable to this Act in the sums payable out of money so provided by virtue of any other Act.

^I5276 Transitional or transitory provision and savings¶

1 Schedule 24 (which makes transitional and transitory provisions and savings) has effect.

^C332^P32 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.

^C3323 An order under subsection (2) may modify any Act or subordinate legislation.

4 Schedule 24 does not restrict the power under subsection (2) to make other transitional or transitory provisions and savings.

^C333^C340^C357^C528^C415^C493^C365^C406^C389^C524^C403277 Power to make consequential amendments etc.¶

1 The Secretary of State may by order make such supplementary, incidental or consequential provision as he thinks appropriate—

a for the general purposes, or any particular purpose, of this Act; or

b in consequence of any provision made by or under this Act or for giving full effect to it.

2 An order under this section may—

a modify any Act or subordinate legislation (including this Act);

b make incidental, supplementary, consequential, transitional, transitory or saving provision.

3 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.

4 The power conferred by this section is not restricted by any other provision of this Act.

^I6278 Minor and consequential amendments and repeals¶

1 Schedule 25 (which contains minor and consequential amendments) has effect.

2 Schedule 26 (which contains repeals and revocations) has effect.

^P1279 Commencement¶

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.

280 Extent¶

1 Sections 256 to 265, 267, 269 and 272 extend only to England and Wales.

2 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).

3 Any other modifications by this Act of an enactment have the same extent as the enactment being modified.

4 Otherwise, this Act extends to England and Wales, Scotland and Northern Ireland.

281 Short title¶

This Act may be cited as the Enterprise Act 2002.

SCHEDULES

^F1454SCHEDULE 1 ¶

The Office of Fair Trading

Section 1

^F14541 Membership¶

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

^F14542 Terms of appointment, remuneration, pensions etc.¶

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

^F14543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14545 Staff¶

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

^F14546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14547 Membership of committees or sub-committees of OFT¶

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

^F14548 Proceedings etc.¶

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

^F14549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F145410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F145411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F145412 Performance of functions¶

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

^F145413 Supplementary powers¶

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

^F145414 Parliamentary Commissioner Act 1967 (c. 13)¶

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

^F145415 House of Commons Disqualification Act 1975 (c. 24)¶

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

^F145416 Northern Ireland Assembly Disqualification Act 1975 (c. 25)¶

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

SCHEDULE 2 ¶

The Competition Appeal Tribunal

Section 12

1 Appointment, etc. of President and chairmen¶

1 A person is not eligible for appointment as President unless—

a he satisfies the judicial-appointment eligibility condition on a 7-year basis;

b he is an advocate or solicitor in Scotland of at least 7 years’ standing; or

c he is a member of the Bar of Northern Ireland or solicitor of the Court of Judicature of Northern Ireland of at least 7 years’ standing;

and he appears to the Lord Chancellor to have appropriate experience and knowledge of competition law and practice.

2 A person is not eligible for appointment as a chairman unless—

a he satisfies the judicial-appointment eligibility condition on a 5-year basis;

b he is an advocate or solicitor in Scotland of at least 5 years’ standing; or

c he is a member of the Bar of Northern Ireland or solicitor of the Court of Judicature of Northern Ireland of at least 5 years’ standing;

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).

3 Before appointing an advocate or solicitor in Scotland under this paragraph, the Lord Chancellor must consult the Lord President of the Court of Session.

^F6704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 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.

^F2082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 The President and the chairmen may resign their offices by notice in writing to the Lord Chancellor.

4 The Lord Chancellor may remove a person from office as President or chairman on the ground of incapacity or misbehaviour.

5 The Lord Chancellor may remove a person from office as President under sub-paragraph (4) only with the concurrence of all of the following—

a the Lord Chief Justice of England and Wales;

b the Lord President of the Court of Session;

c the Lord Chief Justice of Northern Ireland.

6 The Lord Chancellor may remove a person from office as chairman under sub-paragraph (4) only with the concurrence of the appropriate senior judge.

7 The appropriate senior judge is the Lord Chief Justice of England and Wales, unless—

a the person to be removed exercises functions wholly or mainly in Scotland, in which case it is the Lord President of the Court of Session, or

b the person to be removed exercises functions wholly or mainly in Northern Ireland, in which case it is the Lord Chief Justice of Northern Ireland.

3 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.

4 Appointment, etc. of ordinary members¶

1 Ordinary members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

2 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).

3 An ordinary member may resign his office by notice in writing to the Secretary of State.

4 The Secretary of State may remove a person from office as an ordinary member on the ground of incapacity or misbehaviour.

5 Remuneration etc. for members¶

1 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.

2 The Competition Service shall, if required to do so by the Secretary of State—

a pay such pension, allowances or gratuities as may be determined by the Secretary of State to or in respect of a person who holds or has held office as President, a chairman or an ordinary member; or

b make such payments as may be so determined towards provision for the payment of a pension, allowance or gratuities to or in respect of such a person.

6 Compensation for loss of office¶

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.

7 Staff, accommodation and property¶

Any staff, office accommodation or equipment required for the Tribunal shall be provided by the Competition Service.

8 Miscellaneous¶

The President must arrange such training for members of the Tribunal as he considers appropriate.

9 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.

10 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place—

11 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place—

SCHEDULE 3 ¶

The Competition Service

Section 13

Part 1 Constitution etc.¶

1 Membership of the Service¶

1 The Service shall consist of—

a the President of the Competition Appeal Tribunal;

b the Registrar of the Competition Appeal Tribunal; and

c one or more appointed members.

2 An appointed member shall be appointed by the Secretary of State after consulting the President.

2 Chairman of Service¶

1 Subject to sub-paragraph (2), the members shall choose one of their number to be chairman of the Service.

2 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.

3 Appointed members¶

An appointed member shall hold and vacate office in accordance with the terms of his appointment (and is eligible for re-appointment).

4 Allowances, etc. for members¶

1 The Service shall pay—

a such travelling and other allowances to its members, and

b such remuneration to any appointed member,

as may be determined by the Secretary of State.

2 The Service shall, if required to do so by the Secretary of State—

a pay such pension, allowances or gratuities as may be determined by the Secretary of State to or in respect of a person who holds or has held office as an appointed member; or

b make such payments as may be so determined towards provision for the payment of a pension, allowances or gratuities to or in respect of such a person.

5 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.

6 Staff¶

1 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.

2 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.

3 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.

7 Procedure¶

1 The Service may regulate its own procedure (including quorum).

2 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.

1 The application of the seal of the Service shall be authenticated by the signature of—

a any member; or

b some other person who has been authorised for that purpose by the Service, whether generally or specially.

2 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.

9 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.

10 The Service’s powers¶

The Service has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions.

11 Accounts¶

1 The Service shall keep proper accounts and proper records in relation to its accounts.

2 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.

1 The Service shall—

a prepare a statement of accounts in respect of each of its financial years; and

b prepare a statement of accounts for the Tribunal for each of its financial years.

2 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.

3 Those accounts must comply with any directions given by the Secretary of State with the approval of the Treasury as to—

a the information to be contained in them;

b the manner in which that information is to be presented; and

c the methods and principles according to which they are to be prepared.

4 The Comptroller and Auditor General shall—

a examine, certify and report on each statement of accounts received by him; and

b lay copies of each statement before Parliament.

5 In this paragraph “financial year” means the period of 12 months ending with 31st March.

^F714Part 2 Transfers of property etc. between the Commission and the Service¶

^F71413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F71414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F71415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F71416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 3 Miscellaneous¶

17 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place—

18 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place—

SCHEDULE 4 ¶

Tribunal: procedure

Sections 14 and 15

Part 1 General¶

1 Decisions of the Tribunal¶

1 A decision of the Tribunal in any proceedings before it must—

a state the reasons for the decision;

aa state whether the decision was unanimous or taken by a majority or, where proceedings are heard by a chairman only, state that fact;

b be recorded in a document signed and dated by the chairman of the Tribunal dealing with the proceedings.

2 In preparing that document the Tribunal shall have regard to the need for excluding, so far as practicable—

a information the disclosure of which would in its opinion be contrary to the public interest;

^C334^C500b commercial information the disclosure of which would or might, in its opinion, significantly harm the legitimate business interests of the undertaking to which it relates;

c information relating to the private affairs of an individual the disclosure of which would, or might, in its opinion, significantly harm his interests.

3 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.

4 The President shall make such arrangements for the publication of the decisions of the Tribunal as he considers appropriate.

1A Enforcement of injunctions in England and Wales and Northern Ireland¶

1 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.

2 The High Court may enquire into the matter.

3 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.

4 For the purposes of this paragraph, “relevant proceedings” means proceedings under—

a section 47A or 47B of the 1998 Act;

b section 101 of the Digital Markets, Competition and Consumers Act 2024;

c paragraph 7 of Schedule 9 to the Football Governance Act 2025.

2 Enforcement of decisions in Great Britain¶

If a decision of the Tribunal is registered in England and Wales in accordance with rules of court or any practice direction—

a payment of damages which are awarded by the decision;

b costs or expenses awarded by the decision; and

c any direction given as a result of the decision,

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.

3 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.

4 Subject to rules of court or any practice direction, a decision of the Tribunal may be registered or recorded for execution—

a 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;

b 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

c 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.

5 Enforcement of decisions in Northern Ireland¶

1 A decision of the Tribunal may be enforced in Northern Ireland with the leave of the High Court in Northern Ireland—

a in the case of 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;

b 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

2 For the purpose of enforcing in Northern Ireland a decision to award damages, costs or expenses—

a payment may be enforced as if the damages, costs or expenses were an amount due in pursuance of a judgment or order of the High Court in Northern Ireland; and

b a sum equal to the amount of damages, costs or expenses shall be deemed to be payable under a money judgment within the meaning of Article 2(2) of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (and the provisions of that Order apply accordingly).

3 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.

6 Miscellaneous¶

A decision of the Tribunal in proceedings under section 47B of the 1998 Act which—

a 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

b 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,

may only be enforced by the person concerned with the permission of the High Court or Court of Session.

7 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.

8 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.

Part 2 Tribunal rules¶

9 General¶

1 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.

2 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.

10 ¶

Tribunal rules may make different provision for different kinds of proceedings.

10A Institution of proceedings¶

1 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—

a for the Tribunal dealing with the proceedings to consist only of the President or a member of the panel of chairmen;

b as to the manner in which the proceedings are to be conducted, including provision—

i for such applications to be determined without a hearing;

ii in cases where there is a hearing, for it to be held in private if the Tribunal considers it appropriate because it is considering information of a kind mentioned in paragraph 1(2);

c as to the persons entitled to be heard in such proceedings (where there is a hearing);

d for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses;

e as to the evidence which may be required or admitted and the extent to which it should be oral or written;

f allowing the Tribunal to fix time-limits with respect to any aspect of the proceedings and to extend any time-limit (before or after its expiry).

2 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.

3 For the purposes of this paragraph, “relevant warrant” means a warrant under—

a section 194 of this Act;

b section 28, 28A, 62, 62A, 63, 65G or 65H of the 1998 Act;

c section 74 of the Digital Markets, Competition and Consumers Act 2024;

d paragraph 3 of Schedule 8 to the Football Governance Act 2025.

11 ¶

1 Tribunal rules may make provision as to the period within which and the manner in which proceedings are to be brought.

2 That provision may, in particular—

a make further provision as to procedural aspects of the operation of the limitation or prescriptive periods in relation to claims which may be made in proceedings under section 47A of the 1998 Act, as set out in paragraph 23 of Schedule 8A to that Act;

b provide for the Tribunal to extend the period in which any particular proceedings may be brought; and

c provide for the form, contents, amendment and acknowledgement of the documents by which proceedings are to be instituted.

12 ¶

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—

a the person instituting them does not have a sufficient interest in the decision with respect to which the proceedings are brought; or

b the document by which he institutes them discloses no valid grounds for bringing them.

13 ¶

1 Tribunal rules may provide for the Tribunal—

a to reject a claim made under section 47A of the 1998 Act or a section 47B claim if it considers that there are no reasonable grounds for making it;

b to reject a section 47B claim if—

i the Tribunal declines to make a collective proceedings order in respect of the proceedings under section 47B of the 1998 Act,

ii the Tribunal makes a collective proceedings order in respect of the proceedings, but the order does not provide that the claim in question is eligible for inclusion in the proceedings,

iii the Tribunal revokes the collective proceedings order in respect of the proceedings, or

iv the Tribunal varies the collective proceedings order in such a way that the claim in question is no longer included in the proceedings;

c to reject a section 47B claim if the claim had been previously made in proceedings under section 47A of the 1998 Act by a person who has not consented to its being continued in proceedings under section 47B of that Act.

2 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.

14 ¶

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—

a instituted vexatious proceedings (whether against the same person or against different persons); or

b made vexatious applications in any proceedings.

15 ¶

Tribunal rules must ensure that no proceedings are rejected without giving the parties the opportunity to be heard.

15A Fast-track procedure¶

1 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.

2 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.

3 Tribunal rules may, in particular, provide for the Tribunal to—

a grant an interim injunction on a claim in proceedings under section 47A of the 1998 Act which is subject to the fast-track procedure to a person who has not given an undertaking as to damages, or

b impose a cap on the amount that a person may be required to pay under an undertaking as to damages given on the granting of such an interim injunction.

4 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.

15B Collective proceedings¶

1 Tribunal rules may make provision in relation to collective proceedings under section 47B of the 1998 Act.

2 Rules under sub-paragraph (1) must in particular make provision as to the following matters—

a the procedure governing an application for a collective proceedings order;

b the factors which the Tribunal must take into account in deciding whether a claim is suitable to be brought in collective proceedings (but rules need not make provision in connection with the determination as to whether claims raise the same, similar or related issues of fact or law);

c the factors which the Tribunal must take into account in deciding whether to authorise a person to act as a representative in collective proceedings;

d the procedure by which the Tribunal is to reach a decision as to whether to make a collective proceedings order;

e the procedure by which a person may opt in or opt out of collective proceedings;

f the factors which the Tribunal must take into account in deciding whether to vary or revoke a collective proceedings order;

g the assessment of damages in collective proceedings;

h the payment of damages in collective proceedings, including the procedure for publicising an award of damages;

i the effect of judgments and orders in collective proceedings.

15C Collective settlements¶

1 Tribunal rules may make provision in relation to collective settlements under sections 49A and 49B of the 1998 Act.

2 Rules under sub-paragraph (1) must in particular make provision as to the following matters—

a the procedure governing an application for approval of a proposed collective settlement;

b where section 49B applies, the factors which the Tribunal must take into account in deciding whether to make a collective settlement order (but rules need not make provision in connection with the determination as to whether claims raise the same, similar or related issues of fact or law);

c where section 49B applies, the factors which the Tribunal must take into account in deciding whether to authorise a person to act as a settlement representative in relation to a collective settlement;

d where section 49B applies, the procedure by which the Tribunal is to reach a decision as to whether to make a collective settlement order;

e the factors which the Tribunal must take into account in deciding whether to approve a proposed collective settlement;

f the procedure by which the Tribunal is to reach a decision as to whether to approve a collective settlement;

g the procedure by which a person may opt in or opt out of a collective settlement;

h the payment of compensation under a collective settlement, including the procedure for publicising a compensation award.

16 Pre-hearing reviews and preliminary matters¶

1 Tribunal rules may make provision for the carrying out by the Tribunal of a preliminary consideration of proceedings (a “pre-hearing review”).

2 That provision may include—

a provision enabling such powers to be exercised on a pre-hearing review as may be specified in the rules;

b provision for security and supplemental provision relating to security.

3 For the purposes of sub-paragraph (2)(b)—

a “provision for security” means provision authorising the Tribunal, in specified circumstances, to order a party to the proceedings, if he wishes to continue to participate in them, to pay a deposit not exceeding such sum as may be specified or calculated in a specified manner; and

b “supplemental provision”, in relation to security, means provision as to—

i the manner in which the amount of a deposit is to be determined;

ii the consequences of non-payment of a deposit;

iii the circumstances in which the deposit, or any part of it, may be refunded to the person who paid it or paid to another party to the proceedings.

17 Conduct of the hearing¶

1 Tribunal rules may make provision—

a as to the manner in which proceedings are to be conducted, including provision for any hearing to be held in private if the Tribunal considers it appropriate because it is considering information of a kind mentioned in paragraph 1(2);

b as to the persons entitled to appear on behalf of the parties;

c for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses;

d as to the evidence which may be required or admitted and the extent to which it should be oral or written;

e allowing the Tribunal to fix time limits with respect to any aspect of proceedings and to extend any time limit (before or after its expiry);

f enabling the Tribunal, on the application of any party or on its own initiative, to order—

i the disclosure between, or the production by, the parties of documents or classes of documents; or

ii such recovery or inspection of documents as might be ordered by a sheriff;

g for the appointment of experts for the purposes of proceedings;

h for the award of costs or expenses, including allowances payable to persons in connection with attendance before the Tribunal;

^F1354ha . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i for taxing or otherwise settling any costs or expenses awarded by the Tribunal or for the enforcement of any order awarding costs or expenses.

2 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.

2A 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).

3 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.

4 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.

5 A person who without reasonable excuse fails to comply with—

a any requirement imposed by virtue of sub-paragraph (1)(c); or

b any requirement with respect to the disclosure, production, recovery or inspection of documents which is imposed by virtue of sub-paragraph (1)(f),

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

18 Quorum¶

1 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.

2 The rules may allow the Tribunal to consist of the remaining members for the rest of the proceedings.

3 The rules may enable the President, if it is the chairman of the Tribunal who is unable to continue—

a to appoint either of the remaining members to chair the Tribunal; and

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

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

19 Interest¶

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

2 That provision may include provision—

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

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

20 Fees¶

1 Tribunal rules may provide—

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

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

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

20A Stay or sist of proceedings¶

1 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—

a the circumstances in which a stay may be ordered or removed at the request of a party to the proceedings,

b the circumstances in which the proceedings may be stayed at the instance of the Tribunal, and

c the procedure to be followed.

2 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—

a the circumstances in which a sist may be granted or recalled at the request of a party to the proceedings,

b the circumstances in which the proceedings may be sisted at the instance of the Tribunal, and

c the procedure to be followed.

3 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).

21 Withdrawal of proceedings¶

1 Tribunal rules may make provision—

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

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

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

d as to the effect of withdrawal of proceedings; and

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

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

21A Injunctions¶

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.

21B Declarations and declarators¶

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.

22 Interim orders¶

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

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

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

c granting any remedy which the Tribunal would have had power to grant in its final decision.

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

23 Miscellaneous¶

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

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

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

b any other matter connected with those proceedings,

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

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

24 ¶

Tribunal rules may make provision—

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

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

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

25 ¶

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

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

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

26 ¶

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

SCHEDULE 5 ¶

Proceedings under Part 1 of the 1998 Act

Section 21

1 Part 1 of the 1998 Act is amended as follows.

^I72 In section 46 (appealable decisions)—

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

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

c subsection (3)(h) shall cease to have effect.

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

^I294 For section 49 there is substituted—

49 Further appeals

1 An appeal lies to the appropriate court—

a from a decision of the Tribunal as to the amount of a penalty under section 36;

b from a decision of the Tribunal as to the award of damages or other sum in respect of a claim made in proceedings under section 47A or included in proceedings under section 47B (other than a decision on costs or expenses) or as to the amount of any such damages or other sum; and

c on a point of law arising from any other decision of the Tribunal on an appeal under section 46 or 47.

2 An appeal under this section—

a may be brought by a party to the proceedings before the Tribunal or by a person who has a sufficient interest in the matter; and

b requires the permission of the Tribunal or the appropriate court.

3 In this section “the appropriate court” means the Court of Appeal or, in the case of an appeal from Tribunal proceedings in Scotland, the Court of Session.

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

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

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

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

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

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

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

2 In paragraph 1 (interpretation)—

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

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

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

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

5 In paragraph 5 (the Council)—

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

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

shall cease to have effect.

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

1 Schedule 8 (appeals) is amended as follows.

2 Paragraph 1 shall cease to have effect.

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

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

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

c after sub-paragraph (3) there is inserted—

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

5 Paragraphs 4 to 14 shall cease to have effect.

SCHEDULE 5A ¶

Energy network mergers affecting comparative regulation: modification of Chapter 1 of Part 3

Section 68F

1 General modifications¶

1 Chapter 1 (other than sections 22 and 33) has effect as if—

a references to a reference or possible reference under section 22 were references to a reference or possible reference under section 68B, and

b references to a reference or possible reference under section 33 were references to a reference or possible reference under section 68C.

2 The references in sub-paragraph (1) to a reference under a section include —

a a reference made under a subsection of that section;

b a reference treated as made under that section.

1A Meaning of “the decision-making authority”¶

Section 22(7)(a) (meaning of “the decision-making authority”) has effect as if after “section 33” there were inserted “, 68B or 68C”.

Turnover¶

2 Section 23 (relevant merger situations) has effect as if—

a in subsection (1), for paragraph (b) there were substituted—

;

b subsections (2) to (8) were omitted.

3 Section 28 (turnover test) has effect as if—

a references to the United Kingdom were to Great Britain;

b in subsection (5)—

i in the words before paragraph (a), for “The CMA shall” there were substituted “The CMA and the Gas and Electricity Markets Authority must each”;

ii 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)”;

iii in paragraph (b), for “sums are” there were substituted “sum is”;

c in subsection (6)—

i for “section 23(1)(b), (2)(c) and (4E)” there were substituted “paragraph 2(a) of Schedule 5A”;

ii for “sums” there were substituted “sum”.

4 Relevant customer benefits¶

Section 30 (relevant customer benefits) has effect as if—

a in subsection (1)(a)(i), for “lessening of competition concerned” there were substituted “prejudice to the Gas and Electricity Markets Authority”;

b 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”.

5 Time limits for decisions about references¶

Section 34ZA (time-limits for decisions about references) has effect as if—

a in subsection (1)(a)—

i the reference to section 22(2) were to section 68B(2);

ii the reference to section 22(3) were to section 68B(3);

iii the reference to section 33(2) were to section 68C(2);

iv the reference to section 33(3) were to section 68C(3);

b section (1A) were omitted.

5A Chapter 1 has effect as if sections 34ZD to 34ZF (fast-track reference requests) were omitted.

6 Questions to be decided in relation to completed mergers¶

Section 35 (questions to be decided in relation to completed mergers) has effect as if—

a in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;

b 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”;

c for subsection (2) there were substituted—

;

d in subsection (3), for “an anti-competitive outcome (within the meaning given by subsection (2)(a))” there were substituted “a prejudicial outcome”;

e in subsections (3)(a) and (b) and (4), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.

7 Questions to be decided in relation to anticipated mergers¶

Section 36 (questions to be decided in relation to anticipated mergers) has effect as if—

a in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;

b 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”;

c after subsection (1) there were inserted—

;

d in subsection (2), for “an anti-competitive outcome (within the meaning given by section 35(2)(b))” there were substituted “a prejudicial outcome”;

e in subsections (2)(a) and (b) and (3), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.

7A Time-limits for investigations and reports¶

Section 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.

8 Duty to remedy effects of completed or anticipated mergers¶

Section 41 (duty to remedy effects of completed or anticipated mergers) has effect as if—

a in subsection (1), for “an anti-competitive outcome” there were substituted “a prejudicial outcome (within the meaning of section 35(2) or 36(1A))”;

b in subsection (2)(a) and (b), for “lessening of competition” there were substituted “prejudice”;

c in subsection (4), for “lessening of competition” there were substituted “prejudice”.

SCHEDULE 6 ¶

Schedule to be inserted in the Water Industry Act 1991

Section 70

SCHEDULE 4ZA

Application of provisions of Enterprise Act 2002 to mergers of water enterprises

Section 34

1 Part 3 of the 2002 Act (and any other provisions of that Act so far as relating to that Part) shall apply, with such prescribed modifications as the Secretary of State considers to be necessary or expedient, in relation to water mergers and merger references under section 32 of this Act as it applies in relation to relevant merger situations and references under Part 3 of that Act.

2 The modifications made by virtue of paragraph 1 above shall include modifications to give effect to paragraphs 3 to 6 below.

1 The first questions to be decided by the Competition Commission on a merger reference under section 32(a) of this Act shall be—

a whether arrangements are in progress which, if carried into effect, will result in a water merger; and

b if so, whether that merger may be expected to prejudice the ability of the Director, in carrying out his functions by virtue of this Act, to make comparisons between different water enterprises.

2 The first questions to be decided by the Competition Commission on a merger reference under section 32(b) of this Act shall be—

a whether a water merger has taken place; and

b if so, whether that merger has prejudiced, or may be expected to prejudice, the ability of the Director, in carrying out his functions by virtue of this Act, to make comparisons between different water enterprises.

3 Any decision of the Competition Commission on a merger reference under section 32(a) of this Act that arrangements are in progress which, if carried into effect, will result in a water merger shall be treated as a decision that no arrangements are in progress which, if carried into effect, will result in a water merger if the decision is not that of at least two-thirds of the members of the group constituted in connection with the reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998 (c. 41).

4 Any decision of the Competition Commission on a merger reference under section 32(a) of this Act that a water merger may be expected to prejudice the ability of the Director, in carrying out his functions by virtue of this Act, to make comparisons between different water enterprises shall be treated as a decision that the water merger may be expected not to prejudice that ability of the Director if the decision is not that of at least two-thirds of the members of the group constituted in connection with the reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

5 Any decision of the Competition Commission on a merger reference under section 32(b) of this Act that a water merger has taken place shall be treated as a decision that no water merger has taken place if the decision is not that of at least two-thirds of the members of the group constituted in connection with the reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

6 Any decision of the Competition Commission on a merger reference under section 32(b) of this Act that a water merger has prejudiced, or may be expected to prejudice, the ability of the Director, in carrying out his functions by virtue of this Act, to make comparisons between different water enterprises shall be treated as a decision that the water merger has not prejudiced, or may be expected not to prejudice, that ability of the Director if the decision is not that of at least two-thirds of the members of the group constituted in connection with the reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

1 In deciding, on a merger reference under section 32(a) of this Act whether to take action for the purpose of remedying, mitigating or preventing the prejudice to the Director or any adverse effect which may be expected to result from the prejudice to the Director and, if so, what action should be taken, the Competition Commission may, in particular, have regard to the effect of any such action on any relevant customer benefits in relation to the merger concerned provided that—

a a consideration of those benefits would not prevent a solution to the prejudice concerned; or

b the benefits which may be expected to accrue are substantially more important than the prejudice concerned.

2 In deciding, on a merger reference under section 32(b) of this Act whether to take action for the purpose of remedying, mitigating or preventing the prejudice to the Director or any adverse effect which has resulted from, or may be expected to result from, the prejudice to the Director and, if so, what action should be taken, the Competition Commission may, in particular, have regard to the effect of any such action on any relevant customer benefits in relation to the merger concerned provided that—

a a consideration of those benefits would not prevent a solution to the prejudice concerned; or

b the benefits which have accrued, or may be expected to accrue, are substantially more important than the prejudice concerned.

3 This paragraph is without prejudice to the power of the Secretary of State to provide in regulations made under paragraph 1 above for other matters to which the Competition Commission may or must have regard in deciding the questions as mentioned in sub-paragraph (1) or (2) above (including matters which are to take priority over the effect of action on relevant customer benefits).

1 No enforcement action shall be taken on a merger reference under section 32(b) of this Act in respect of an actual merger unless the reference was made within the period of four months beginning with whichever is the later of—

a the day on which the merger took place; and

b the day on which the material facts about the transactions which resulted in the merger first came to the attention of the OFT or were made public (within the meaning given by section 24(3) of the 2002 Act).

2 This paragraph is without prejudice to the power of the Secretary of State to provide in regulations made under paragraph 1 above for extensions of the four month period; and, if any such provision is made in such regulations, the provision which is to be made in regulations under paragraph 1 above by virtue of sub-paragraph (1) above or paragraph 6 below may be adjusted accordingly.

6 If, on a merger reference under section 32(b) of this Act, the Competition Commission are satisfied that the reference was not made within the period of four months mentioned in paragraph 5 above, its report on the reference shall state that fact.

1 For the purposes of this Schedule a benefit is a relevant customer benefit if—

a it is a benefit to relevant customers in the form of—

i lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom; or

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

b the Competition Commission believes—

i in the case of a merger reference under section 32(a) of this Act, as mentioned in sub-paragraph (2) below; and

ii in the case of a merger reference under section 32(b) of this Act, as mentioned in sub-paragraph (3) below.

2 The belief, in the case of a merger reference under section 32(a) of this Act, is that—

a the benefit may be expected to accrue within a reasonable period as a result of the merger concerned; and

b the benefit is unlikely to accrue without the merger concerned or a similar prejudice to the Director.

3 The belief, in the case of a merger reference under section 32(b) of this Act is that—

a the benefit has accrued as a result of the merger concerned or may be expected to accrue within a reasonable period as a result of the merger concerned; and

b the benefit was, or is, unlikely to accrue without the merger concerned or a similar prejudice to the Director.

4 In sub-paragraph (1) above “relevant customers” means—

a customers of any person carrying on an enterprise which, in the merger concerned, has ceased to be, or (as the case may be) will cease to be, a distinct enterprise;

b customers of such customers; and

c any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);

and in this sub-paragraph “customers” includes future customers.

8 In this Schedule—

“customers”, “goods”, “market in the United Kingdom”, “services” and “relevant merger situation” have the same meanings as in Part 3 of the 2002 Act; and
“water merger” means a merger of any two or more water enterprises.

Schedule 6A ¶

Determination of when a foreign state newspaper merger situation has been created

Section 70A

1 Application of sections 23 to 29¶

1 Sections 23 to 29 apply for the purposes of Chapter 3A of Part 1, subject to the following modifications.

2 Section 23 is to be read as if—

a in subsection (1), for the amount in paragraph (b), there were substituted “£2 million”;

b in subsection (9), for paragraphs (a) and (b), there were substituted—

3 Section 24 is to be read as if—

a for subsection (1)(a) there were substituted—

;

b in subsection (1)(b), after “distinct enterprises” there were inserted “, including facts about whether or the extent to which a foreign power is able to control or influence the policy of a person carrying on a newspaper enterprise as a result of the enterprises ceasing to be distinct enterprises,”;

c the reference to the CMA in subsection (2)(a) included a reference to the Secretary of State;

d for subsection (2)(b) there were substituted—

4 Section 25 is to be read as if—

a subsections (4) and (5) were omitted;

b the powers to extend time-limits under section 25 were not exercisable by the CMA before the giving of a foreign state intervention notice by the Secretary of State.

5 Section 26 is to be read as if—

a in subsection (3)—

i “materially” were omitted;

ii for “may, for the purposes of subsections (1) and (2), be treated” there were substituted “is to be treated, for the purposes of subsections (1) and (2),”;

b for subsection (4) there were substituted—

6 Section 27 is to be read as if—

a references to the “decision-making authority” were to “the CMA or the Secretary of State”;

b in subsection (5), for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”.

7 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”.

8 Section 29 is to be read as if—

a in subsection (1)—

i the reference to the “decision-making authority” were to “the CMA or the Secretary of State”;

ii for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”;

b in subsection (2)(a)(i) “materially” were omitted;

c in subsection (2)(a)(ii), for “degree” there were substituted “extent”;

d subsection (2)(b) and (3) were omitted.

2 Application of the Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595)¶

1 The Enterprise Act 2002 (Anticipated Mergers) Order 2003 applies for the purposes of Chapter 3A of Part 1, subject to the following modifications.

2 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”.

3 Article 3(a) is to be read as if—

a in the substituted version of section 27(5), for “a reference” there were substituted “deciding whether or when a foreign state news paper merger situation will be created”;

b the substituted version of section 27(6)(a)(i), for “the reference” there were substituted “the foreign state intervention notice relating to the situation”.

4 Article 3(b) is to be read as if—

a in the substituted section 29(2)(a)(i), “materially” were omitted;

b in the substituted section 29(2)(a)(ii), for “degree” there were substituted “extent”;

c in the substituted section 29(4), for “the reference” there were substituted “the foreign state intervention notice”.

Schedule 6B ¶

Control or influence of a person by a foreign power

Section 70A

Part 1 Conditions for control or influence¶

1 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.

2 Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person.

3 Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person.

4 Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person.

5 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.

6 Condition 5 is that—

a the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed, would, if they were a foreign power, meet one or more of conditions 1 to 4 (in their capacity as such) in relation to the person, and

b the foreign power has the right or ability to direct, control or influence to any extent the activities of that trust or entity (in whole or in part, and whether directly or indirectly), or has any other interest in, or right over or in relation to, the trust or entity, or any of the trustees of the trust or the members of the entity, whether directly or indirectly.

7 This paragraph is subject to Part 1A.

2 In this Schedule, “officer”—

a 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;

b 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;

c 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.

Part 1A Exceptions¶

2A Introduction¶

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”).

2B State owned investors¶

1 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—

a all of the shares or voting rights that the main foreign power holds in the newspaper owner are held by the foreign power, indirectly, via a state owned investor acting on behalf of the foreign power,

b where the state owned investor holds, directly, more than 5% but no more than 15% of the shares or voting rights in the newspaper owner, the condition in sub-paragraph (1A) is met, and

c the total holdings of shares or voting rights in the newspaper owner held, directly or indirectly, by state owned investors acting on behalf of any foreign power of any country or territory is no more than 15% of the shares or voting rights in the newspaper owner (subject to sub-paragraph (1D)).

1A The condition is that, before the end of the period of 14 days beginning with the acquisition date, the state owned investor—

a gives the Secretary of State a qualifying notification, and

b publishes on a website the information in sub-paragraph (1C).

1B For the purposes of sub-paragraph (1A)—

a a qualifying notification is a notification that the state owned investor has acquired, or proposes to acquire, shares or voting rights in the newspaper owner, with the result that the state owned investor holds, or will hold, directly, more than 5% of the shares or voting rights in the newspaper owner, and

b the acquisition date is the date on which the state owned investor acquires shares or voting rights in the newspaper owner, with the result that the state owned investor holds, directly, more than 5% of the shares or voting rights in the newspaper owner.

1C The information is—

a the name of the state owned investor,

b the foreign country or territory of the foreign power on whose behalf the state owned investor is acting,

c the name of the newspaper owner, and

d the percentage of shares or voting rights that it holds or proposes to hold in the newspaper owner as a consequence of an acquisition which has resulted or would result in the state owned investor holding, directly, more than 5% of the shares or voting rights in the newspaper owner.

1D 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.

^F15612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2C ¶

1 For the purposes of paragraph 2B, a person is a state owned investor acting on behalf of a foreign power where—

a condition 1 or 2 is met, and

b conditions 3 to 5 are met.

2 Condition 1 is that the foreign power holds, directly or indirectly—

a 100% of the shares in the person,

b 100% of the voting rights in the person, or

c the right to appoint or remove a majority of the officers of the person.

3 Condition 2 is that—

a the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed meet one or more of the requirements set out in sub-paragraph (4), in their capacity as such, in relation to the person, and

b the foreign power directs or controls the activities of that trust or entity (in whole or in part).

4 The requirements are that the trustees or members—

a have the right to direct or control, or actually direct or control, the person’s activities (in whole or in part);

b hold, directly or indirectly, 100% of the shares in the person;

c hold, directly or indirectly, 100% of the voting rights in the person;

d hold the right, directly or indirectly, to appoint or remove a majority of the officers of the person.

5 Condition 3 is that—

a the principal activity of the person is to make or manage investments, and

b the activities of the person include making or managing investments in countries or territories other than the country or territory of the foreign power (“the overseas investments”).

6 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.

7 Condition 5 is that the sole purpose of the overseas investments is to benefit—

a the foreign power or the public or a section of the public of the country or territory of the foreign power, or

b where the overseas investments are made or managed for the purposes of a public pension fund of the country or territory of the foreign power, the beneficiaries of that fund.

2D Associated persons¶

1 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 the foreign power holds shares or, as the case may be, voting rights in the newspaper owner as a result of those shares or voting rights being held by a person who is associated with the foreign power by virtue of being within section 127(4)(a), (b) or (c) (relatives, trustees etc), and

b the person within section 127(4)(a), (b) or (c) holds no more than 0.1% of the shares or, as the case may be, the voting rights in the newspaper owner.

2 A foreign power is not able to control or influence the policy of a newspaper owner by virtue of the shares condition where—

a the foreign power holds shares in the newspaper owner as a result of those shares being held by a person who is associated with the foreign power by virtue of being within section 127(4)(a), (b) or (c), and

b the person within section 127(4)(a), (b) or (c) holds those shares via an investment fund which meets the genuine diversity of ownership condition.

3 For the purposes of sub-paragraph (2)(b)—

a “investment fund” means—

i an investment fund within the meaning given by section 236(1) of the Finance (No. 2) Act 2023 (investment funds and investment entities),

ii arrangements that amount to a collective investment scheme (see section 235 of the Financial Services and Markets Act 2000), or

iii a collective investment undertaking within the meaning of regulation 3 of the Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), and

b an investment fund meets the genuine diversity of ownership condition where—

i it meets conditions A to C in regulation 75 of the Offshore Funds (Tax) Regulations 2009 (S.I. 2009/3001) (read with regulation 76 of those Regulations), or

ii paragraph (5) of that regulation applies to it.

Part 2 Interpretation¶

3 Interpretation¶

This Part makes provision about the interpretation of this Schedule.

4 Joint interests¶

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.

5 Joint arrangements¶

1 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.

2 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.

3 For the meaning of “arrangement”, see paragraph 12.

6 Calculating shareholdings¶

1 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.

2 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.

Voting rights¶

1 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.

2 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.

8 In applying this Schedule, voting rights in a person held by the person itself are to be disregarded.

9 Shares or rights held “indirectly”¶

1 A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person—

a holds the share in question, or

b is part of a chain of persons—

i each of which (other than the last) has any stake in the person immediately below it in the chain, and

ii the last of which holds the share.

2 A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person—

a holds that right, or

b is part of a chain of persons—

i each of which (other than the last) has any stake in the person immediately below it in the chain, and

ii the last of which holds that right.

3 For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if—

a A holds any shares or voting rights in B,

b A is a member of B and has the right to appoint or remove an officer of B,

c A is a member of B and controls alone, or pursuant to an agreement with other shareholders or members, any of the voting rights in B, or

d A has the right or ability to control or influence B to any extent, despite not being within paragraph (a), (b) or (c).

10 Shares held by nominees¶

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).

11 Rights treated as held by person who is able to control their exercise¶

1 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).

2 A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—

a by that person,

b in accordance with that person’s directions or instructions, or

c with that person’s consent or concurrence.

12 Arrangements¶

1 For the purposes of this Schedule, “arrangement” includes—

a any scheme, agreement or understanding, whether or not it is legally enforceable, and

b any convention, custom or practice of any kind.

2 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).

13 Rights exercisable only in certain circumstances etc¶

1 Rights that are exercisable only in certain circumstances are to be taken into account only—

a where the circumstances have arisen, and for so long as they continue to obtain, or

b when the circumstances are within the control of the person having the rights.

2 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.

3 “Relevant insolvency proceedings” means—

a administration within the meaning of the Insolvency Act 1986,

b administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or

c proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor.

4 Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.

14 Rights attached to shares held by way of security¶

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—

a 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

b 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.

Part 3 Power to amend circumstances in which there is control or influence¶

1 The Secretary of State may by regulations make provision—

a to change (by increasing or decreasing) the proportion of shares or rights which a foreign power must hold in a person carrying on a newspaper enterprise, whether directly or indirectly, in order for the foreign power to be able to control or influence the policy of a person for the purposes of section 70A;

b to change (by increasing or decreasing) the proportion of shares or rights which is to be held by persons in a chain of persons for the purposes of determining whether shares or rights are held indirectly;

c about assumptions which are to be made when determining whether a foreign power is able to control or influence the policy of a person, including assumptions framed by reference to the ownership of shares or voting rights by any person;

d about the extent to which a foreign power needs to be able to control or influence the policy of a person in order to control or influence that policy for the purposes of section 70A, including provision about a foreign power that is already able to control or influence the policy of a person to some extent being able to control or influence that policy to a greater extent;

e to change or supplement Part 1 of this Schedule so as to include circumstances (for example, circumstances involving more complex structures) that give a foreign power a level of control or influence in relation to the policy of a person broadly similar to the level of control or influence given by the conditions in paragraph 1;

f in consequence of any provision made by virtue of paragraph (e), to change or supplement Part 2 of this Schedule so that circumstances specified in that Part in which a person is to be regarded as holding an interest in another person correspond to any of the conditions in paragraph 1, or would do so but for the extent of the interest.

2 The provision that may be made under this paragraph, read with section 124(2)(a), includes—

a different provision for different descriptions of foreign power, and

b different provision for different persons or descriptions of person in a chain of persons.

3 Regulations under this paragraph may, among other things—

a confer a discretion on the CMA;

b make provision having effect on or after 13 March 2024.

^C361SCHEDULE 7 ¶

Enforcement regime for public interest and special public interest cases

Section 85

^F12641 ^C361Pre-emptive undertakings and orders¶

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

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

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

a prohibit or restrict the doing of things which the Secretary of State or (as the case may be) the CMA considers would constitute pre-emptive action;

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

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

2A Sub-paragraph (2B) applies where—

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

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

2B The Secretary of State or (as the case may be) the CMA may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

a do anything mentioned in sub-paragraph (2)(b) to (d);

b impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

2C A person may, with the consent of the Secretary of State or (as the case may be) the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this paragraph by the Secretary of State or (as the case may be) the CMA.

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

4 The Secretary of State ^F1302... 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 ^F1695... adopts it.

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

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

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

6 Any other order under this paragraph—

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

b may be varied or revoked by another order.

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

8 An order which is in force under this paragraph in relation to a reference or possible reference under section 45 or (as the case may be) 62 shall cease to be in force if an undertaking under paragraph ^F594... 3 comes into force in relation to that reference.

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

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

a the Secretary of State or (as the case may be) the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct; or

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

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

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

3 ^C361Undertakings in lieu of reference under section 45 or 62¶

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

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

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

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

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

4 In proceeding under sub-paragraph (2) in relation to an anti-competitive outcome, the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

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

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

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

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

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

8 An undertaking under this paragraph—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; or

c may be released by the Secretary of State.

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

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

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

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

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

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

2 In sub-paragraph (1) “the relevant authority” means—

a in relation to a possible reference under section 22 , 33, 68B or 68C, the CMA; and

b in relation to a possible reference under section 45 or 62, the Secretary of State.

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

4 For the purposes of sub-paragraph (3) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.

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

^C8^C16^C245

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

a an undertaking accepted ^F1635... under paragraph 3 has not been, is not being or will not be fulfilled; or

b in relation to an undertaking accepted ^F1635... under that paragraph, information which was false or misleading in a material respect was given to the Secretary of State or the CMA by the person giving the undertaking before he decided to accept the undertaking.

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

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

4 An order under this paragraph may contain—

a anything permitted by Schedule 8; and

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

5 An order under this paragraph

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

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

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

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

1 Sub-paragraph (2) applies where—

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

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

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

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

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

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

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

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

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

6 An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force on—

a the coming into force of an order under paragraph 5 or (as the case may be) 10 in relation to the undertaking concerned; or

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

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

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

7 ^C361Statutory restrictions following reference under section 45 or 62¶

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

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

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

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

a complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;

b make any further arrangements in consequence of that result (other than arrangements which reverse that result); or

c transfer the ownership or control of any enterprises to which the reference relates.

3 No relevant person shall, without the consent of the Secretary of State, assist in any of the activities mentioned in paragraphs (a) to (c) of sub-paragraph (2).

4 The prohibitions in sub-paragraphs (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.

5 The consent of the Secretary of State under sub-paragraph (2) or (3)—

a may be general or specific;

b may be revoked by the Secretary of State; and

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

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

7 Sub-paragraphs (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

a a United Kingdom national;

b a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c a person carrying on business in the United Kingdom.

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

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

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

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

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

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

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

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

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

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

b the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

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

d the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

e the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

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

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

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

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

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

11 In this paragraph “relevant person” means—

a any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;

b any subsidiary of any person falling within paragraph (a); or

c any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated.

1 Sub-paragraph (2) applies where—

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

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

2 No relevant person shall, without the consent of the Secretary of State, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.

3 The consent of the Secretary of State under sub-paragraph (2)—

a may be general or specific;

b may be revoked by the Secretary of State; and

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

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

5 Sub-paragraph (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—

a a United Kingdom national;

b a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

c a person carrying on business in the United Kingdom.

6 In this paragraph—

“company” includes any body corporate;
“relevant period” means the period beginning with the publication of the decision of the Secretary of State to make the reference concerned and ending when the reference is finally determined;
“relevant person” means—
1. any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
2. any subsidiary of any person falling within paragraph (a); or
3. any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and
“share” means share in the capital of a company, and includes stock.

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

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

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

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

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

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

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

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

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

c the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

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

e the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

f the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

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

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

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

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

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

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

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

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

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

9 ^C361Final undertakings and orders¶

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

2 An undertaking under this paragraph—

a shall come into force when accepted;

b may be varied or superseded by another undertaking; and

c may be released by the Secretary of State.

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

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

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

b paragraph 11 in relation to that reference.

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

^C255^C253^C2510

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

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

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

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

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

4 An order under this paragraph may contain—

a anything permitted by Schedule 8; and

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

5 An order under this paragraph—

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

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

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

^C256^C254^C2611

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

2 An order under this paragraph may contain—

a anything permitted by Schedule 8; and

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

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

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

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

^C269^C270^C271^C335^C416^C361^C442 SCHEDULE 8 ¶

Provision that may be contained in certain enforcement orders

Section 86(4)

1 ^C361Introductory¶

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.

2 ^C361General restrictions on conduct¶

1 An order may—

a prohibit the making or performance of an agreement;

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

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

a prohibit the making or performance of; or

b require any person to terminate,

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

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

a any goods or services;

b any orders for any such goods or services.

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

a agreeing or threatening to withhold; and

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

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

a the buying of any goods;

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

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

5 An order may prohibit—

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

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

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

6 An order may prohibit—

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

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

c procuring others to do anything mentioned in paragraph (a) or (b).

7 An order may prohibit—

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

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

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

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

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

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

10 ^C361General obligations to be performed¶

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

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

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

12 ^C361Acquisitions and divisions¶

1 An order may prohibit or restrict—

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

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

2 An order may require that if—

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

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

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

3 This paragraph shall also apply to any result consisting in two or more enterprises ceasing to be distinct enterprises (other than any result consisting in two or more bodies corporate becoming interconnected bodies corporate).

1 An order may provide for—

a the division of any business (whether by the sale of any part of the undertaking or assets or otherwise);

b the division of any group of interconnected bodies corporate.

2 For the purposes of sub-paragraph (1)(a) all the activities carried on by way of business by any one person or by any two or more interconnected bodies corporate may be treated as a single business.

3 An order made by virtue of this paragraph may contain such provision as the relevant authority considers appropriate to effect or take account of the division, including, in particular, provision as to—

a the transfer or creation of property, rights, liabilities or obligations;

b the number of persons to whom the property, rights, liabilities or obligations are to be transferred or in whom they are to be vested;

c the time within which the property, rights, liabilities or obligations are to be transferred or vested;

d the adjustment of contracts (whether by discharge or reduction of any liability or obligation or otherwise);

e the creation, allotment, surrender or cancellation of any shares, stock or securities;

f the formation or winding up of any company or other body of persons corporate or unincorporate;

g the amendment of the articles or other instruments regulating any such company or other body of persons;

h the extent to which, and the circumstances in which, provisions of the order affecting a company or other body of persons corporate or unincorporate in its share capital, constitution or other matters may be altered by the company or other body of persons concerned;

i the registration of the order under any enactment by a company or other body of persons corporate or unincorporate which is affected by it as mentioned in paragraph (h);

j the continuation, with any necessary change of parties, of any legal proceedings;

k the approval by the relevant authority or another person of anything required by virtue of the order to be done or of any person to whom anything is to be transferred, or in whom anything is to be vested, by virtue of the order; or

l the appointment of trustees or other persons to do anything on behalf of another person which is required of that person by virtue of the order or to monitor the doing by that person of any such thing.

14 The references in paragraph 13 to the division of a business as mentioned in sub-paragraph (1)(a) of that paragraph shall, in the case of an order under section 75, 83, 84, 160 or 161, or an order under paragraph 5, 10 or 11 of Schedule 7, be construed as including references to the separation, by the sale of any part of any undertaking or assets concerned or other means, of enterprises which are under common control (within the meaning of section 26) otherwise than by reason of their being enterprises of interconnected bodies corporate.

^F69815 ^C361Supply and publication of information¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 An order may prohibit any person from notifying (whether by publication or otherwise) to persons supplying goods or services prices recommended or suggested as appropriate to be charged by those persons for those goods or services.

1 An order may require a person supplying goods or services to publish or otherwise notify —

a accounting information in relation to the supply of the goods or services;

b information in relation to the quantities of goods or services supplied;

c information in relation to the geographical areas in which they are supplied.

d information in relation to prices of the goods or services supplied;

e such other information in relation to the goods or services supplied as the relevant authority considers appropriate.

1A An order may prohibit the publication or other notification of information falling within sub-paragraph (1)(a) to (e) by a person supplying goods or services.

2 In sub-paragraph (1) “accounting information”, in relation to a supply of goods or services, means information as to—

a the costs of the supply, including fixed costs and overheads;

b the manner in which fixed costs and overheads are calculated and apportioned for accounting purposes of the supplier; and

c the income attributable to the supply.

18 An order made by virtue of paragraph ^F782... 17 may provide for the manner in which information is to be published or otherwise notified.

19 An order may—

a require any person to supply information to the relevant authority;

b where the CMA is not the relevant authority, require any person to supply information to the CMA;

c provide for the publication, by the person who has received information by virtue of paragraph (a) or (b), of that information.

20 ^C361National security¶

1 An order may make such provision as the person making the order considers to be appropriate in the interests of national security ^F1353... .

2 Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

20A ^C361News media mergers¶

1 This paragraph applies in relation to any order—

a which is to be made following the giving of—

i an intervention notice which mentions a news media public interest consideration;

ii an intervention notice which mentions any other media public interest consideration in relation to a relevant merger situation in which one of the enterprises ceasing to be distinct is a news media enterprise;

iii a special intervention notice which mentions a consideration specified in section 58(2A) or (2B); or

iv a special intervention notice which, in relation to a special merger situation in which one of the enterprises ceasing to be distinct is a news media enterprise, mentions a consideration specified in section 58(2C); and

b to which the consideration concerned is still relevant.

1A This paragraph also applies in relation to an order under section 70C(2) (order to prevent foreign control of a newspaper enterprise).

2 The order may make such provision as the person making the order considers to be appropriate in all circumstances of the case.

3 Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

4 Provision made by virtue of this paragraph may, in particular, include provision—

a altering the constitution of a body corporate (whether in connection with the appointment of directors, the establishment of an editorial board or otherwise);

b requiring the agreement of the relevant authority or another person before the taking of particular action (including the appointment or dismissal of an editor, journalists or directors or acting as a shadow director);

c attaching conditions to the operation of a news media enterprise;

d prohibiting consultation or co-operation between subsidiaries.

5 In this paragraph “news media public interest consideration” means a media public interest consideration other than one which is such a consideration—

a by virtue of section 58(2C); or

b by virtue of having been, in the opinion of the Secretary of State, concerned with broadcasting (other than the broadcasting of news programmes) and a consideration that ought to have been specified in section 58.

5A In this paragraph, “news media enterprise” means—

a a newspaper enterprise; or

b an enterprise consisting in or involving the broadcasting of news programmes.

6 This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order concerned.

20B ^C361Maintaining the stability of the UK financial system¶

1 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.

2 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.

3 Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

4 This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order.

5 In this paragraph “relevant order” means an order—

a which is to be made following the giving of an intervention notice or special intervention notice which mentions the consideration specified in section 58(2D) (including, in the case of a notice given before the consideration was so specified, an intervention notice which mentions the consideration as a consideration which ought to be specified in section 58); and

b to which the consideration is still relevant.

20BA ^C361Maintaining the capability to combat etc public health emergencies¶

1 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.

2 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.

3 Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

4 This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order.

5 In this paragraph “relevant order” means an order—

a which is to be made following the giving of an intervention notice or special intervention notice which mentions the consideration specified in section 58(2E); and

b to which the consideration is still relevant.

20C ^C361Monitoring of compliance and determination of disputes¶

1 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—

a monitor compliance with such terms of the order as are so specified or described or terms of any directions given under the order;

b determine any dispute between persons who are subject to the order about what is required by any such terms.

2 An order made by virtue of this paragraph must make provision as to the terms of an appointee's appointment.

3 A determination made by virtue of an order under this paragraph is binding on—

a any person who is subject to the order;

b the relevant authority; and

c in the case where the relevant authority is the Secretary of State or the Chancellor of the Duchy of Lancaster, the CMA.

21 ^C361Supplementary¶

1 An order, as well as making provision in relation to all cases to which it may extend, may make provision in relation to—

a those cases subject to specified exceptions; or

b any particular case or class of case.

2 An order may, in relation to the cases in relation to which it applies, make the full provision which may be made by it or any less provision (whether by way of exception or otherwise).

3 An order may make provision for matters to be determined under the order.

4 An order may—

a make different provision for different cases or classes of case or different purposes;

b make such transitional, transitory or saving provision as the person making it considers appropriate.

1 An order which may prohibit the doing of anything (or the refraining from doing anything) may in particular by virtue of paragraph 21(2) prohibit the doing of that thing (or the refraining from doing of it) except to such extent and in such circumstances as may be provided by or under the order.

2 Any such order may, in particular, prohibit the doing of that thing (or the refraining from doing of it)—

a without the agreement of the relevant authority or another person; or

b by or in relation to a person who has not been approved by the relevant authority or another person.

23 ^C361Interpretation¶

References in this Schedule to the notification of prices or other information are not limited to the notification in writing of prices or other information.

24 In this Schedule “the relevant authority” means—

^F859a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b in the case of an order to be made by the CMA, the CMA; ^F326...

c in the case of an order to be made by the Secretary of State, the Secretary of State ; and

d in the case of an order to be made by the Chancellor of the Duchy of Lancaster, the Chancellor of the Duchy of Lancaster.

SCHEDULE 9 ¶

Certain amendments of sectoral enactments

Sections 86(5), 164(2) and 168(9)

Part 1 Power of enforcement orders to amend licence conditions etc.¶

1 Telecommunications Act 1984 (c. 12)¶

1 Section 95 of the Telecommunications Act 1984 (modification of licence conditions by order) shall be amended as follows.

2 For subsections (1) and (2) there shall be substituted—

1 Where the Office of Fair Trading, the Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the revocation or modification of licences granted under section 7 above to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) above, “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of a commercial activity connected with telecommunications; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of a commercial activity connected with telecommunications; or

b an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to commercial activities connected with telecommunications.

3 For subsection (3) there shall be substituted—

2 Airports Act 1986 (c. 31)¶

1 Section 54 of the Airports Act 1986 (modification of certain conditions in force under Part 4 of that Act) shall be amended as follows.

^F7072 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Subsection (3) shall cease to have effect.

^F17114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F6553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Gas Act 1986 (c. 44)¶

1 Section 27 of the Gas Act 1986 (modification of licence conditions by order) shall be amended as follows.

2 For subsection (1) there shall be substituted—

a the conditions of a particular licence; or

b the standard conditions of licences under section 7 above, licences under subsection (1) of section 7A above or licences under subsection (2) of that section,

to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

1ZA In subsection (1) above “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

i activities authorised or regulated by a licence; or

ii the storage of gas on terms which have been determined by the holder of a licence under section 7 above, or could have been determined by the holder if he had thought fit or had been required to determine them by or under a condition of the licence.

3 In subsection (2)—

a for the words “Secretary of State” there shall be substituted “ relevant authority ”;

b for the words “section, he” there shall be substituted “ section, the relevant authority ”; and

c for the words “as he considers” there shall be substituted “ as the relevant authority considers ”.

4 Subsections (3) and (4) shall cease to have effect.

5 In subsection (5)—

a for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

b for the words “he”, in both places where they appear, there shall be substituted “ the relevant authority ”.

6 For subsection (6) there shall be substituted—

5 Electricity Act 1989 (c. 29)¶

1 Section 15 of the Electricity Act 1989 (modification of licence conditions by order) shall be amended as follows.

2 For subsections (1) and (2) there shall be substituted—

1 Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) above “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

b an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.

3 For subsection (2B) there shall be substituted—

4 In subsection (2C)—

a for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

b for the words “he”, in both places where they appear, there shall be substituted “the relevant authority”.

5 For subsection (3) there shall be substituted—

6 Broadcasting Act 1990 (c. 42)¶

For section 193 of the Broadcasting Act 1990 (modification of networking arrangements in consequence of reports under competition legislation) there shall be substituted—

193 Modification of networking arrangements in consequence of competition legislation

1 Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of any networking arrangements to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the provision of programmes for broadcasting in regional Channel 3 services; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the provision of such programmes; or

b an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the provision of programmes for broadcasting in regional Channel 3 services.

3 Expressions used in subsection (2) and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.

4 In this section —

“networking arrangements” means any such arrangements as are mentioned in section 39(1) above; and
“regional Channel 3 service” has the meaning given by section 14(6) above.

^I307 Water Industry Act 1991 (c. 56)¶

1 Section 17 of the Water Industry Act 1991 (modification of conditions of appointment by order) shall be amended as follows.

2 For subsections (1) and (2) there shall be substituted—

1 Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may, subject to subsection (3), also provide for the modification of the conditions of a company’s appointment under this Chapter to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) above “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the 2002 Act where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was carried on by a relevant undertaker; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is carried on by a relevant undertaker; or

b an order under section 160 or 161 of the 2002 Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition is—

i the structure or an aspect of the structure of a market for the supply of goods or services by a relevant undertaker; or

ii the conduct of a relevant undertaker or of customers of a relevant undertaker.

3 For subsection (4) there shall be substituted—

^I88 In section 36(1) of that Act (interpretation of Part 2 of that Act)—

a the definition of “the 1973 Act”, and the word “and” at the end of the definition, shall cease to have effect; and

b at the end of the subsection there shall be inserted—

9 Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))¶

For article 18 of the Electricity (Northern Ireland) Order 1992 (modification of licence conditions by order) there shall be substituted—

18 Modification by order under other statutory provisions

1 Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In paragraph (1) “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

b an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission or supply of electricity.

3 In paragraph (2) expressions which are also used in Part 3 or, as the case may be, Part 4 of the Enterprise Act 2002 have the same meanings as in that Part of that Act.

10 Railways Act 1993 (c. 43)¶

1 Section 16 of the Railways Act 1993 (modification of licence conditions by order) shall be amended as follows.

2 For subsections (1) and (2) there shall be substituted—

1 Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) above “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the supply of services relating to railways; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the supply of services relating to railways; or

3 In subsection (3) for the words “Secretary of State” there shall be substituted “ relevant authority ”.

4 For subsection (5) there shall be substituted—

11 Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))¶

1 Article 45 of the Airports (Northern Ireland) Order 1994 (modification of certain conditions in force under Part 4 of that Order) shall be amended as follows.

^F5482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Paragraph (3) shall cease to have effect.

^F17184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F36912 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13 Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))¶

1 Article 18 of the Gas (Northern Ireland) Order 1996 (modification of licence conditions by order) shall be amended as follows.

2 For paragraph (1) there shall be substituted—

a the conditions of a particular licence; or

b the standard conditions of licences under sub-paragraph (a), (b) or (c) of Article 8(1),

to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

1A In paragraph (1) “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

3 In paragraph (2)—

a for the words “Secretary of State modifies under paragraph (1)(ii)” there shall be substituted “ relevant authority modifies under paragraph (1)(b) ”; and

b for the word “he”, in both places where it appears, there shall be substituted “ the relevant authority ”.

4 Paragraph (3) shall cease to have effect.

5 In paragraph (4)—

a for the words “Secretary of State” there shall be substituted “ relevant authority ”; and

b for the word “he”, in both places where it appears, there shall be substituted “ the relevant authority ”.

6 For paragraph (5) there shall be substituted—

^F109314 Postal Services Act 2000 (c. 26)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 Transport Act 2000 (c. 38)¶

1 Section 19 of the Transport Act 2000 (modification of licence conditions by order) shall be amended as follows.

2 For subsections (1) to (4) there shall be substituted—

1 Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

2 In subsection (1) above “relevant order” means—

a an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the 2002 Act where—

i one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the provision of air traffic services; or

ii one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the provision of air traffic services; or

3 In subsection (5) for the words “Secretary of State” there shall be substituted “ relevant authority ”.

4 For subsection (6) there shall be substituted—

5 In subsection (7) for the words “1973 Act is the Fair Trading Act 1973” there shall be substituted “ 2002 Act is the Enterprise Act 2002 ”.

Part 2 Application of Part 4 of this Act to sectoral regulators¶

16 Telecommunications Act 1984 (c. 12)¶

1 Section 50 of the Telecommunications Act 1984 (application of monopoly provisions etc. to the Director General of Telecommunications) shall be amended as follows.

2 For subsection (2) (monopoly functions to be exercisable concurrently by the Director General of Telecommunications) there shall be substituted—

3 For subsection (4) there shall be substituted—

4 In subsection (6)—

a for the words “subsection (2)” there shall be substituted “ subsection (2A) ”;

b the words from “or paragraph” to “Act 1994” shall cease to have effect; and

c for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

5 For subsection (6A) there shall be substituted—

6 Subsection (7) shall cease to have effect.

17 Gas Act 1986 (c. 44)¶

1 Section 36A of the Gas Act 1986 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows.

2 For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted—

2 The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the Office of Fair Trading.

2A This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the carrying on of activities to which this subsection applies.

2B So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

3 In subsection (4) for the word “(2)” there shall be substituted “ (2A) ”.

4 For subsection (5) there shall be substituted—

5 In subsection (7) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

6 For subsection (8) there shall be substituted—

7 Subsection (9) shall cease to have effect.

8 In subsection (10) for the words “mentioned in subsection (2) or (3) above” there shall be substituted “ exercisable by the Authority by virtue of subsection (2) or (3) above ”.

18 Electricity Act 1989 (c. 29)¶

1 Section 43 of the Electricity Act 1989 (application of monopoly provisions etc. to the Gas and Electricity Markets Authority) shall be amended as follows.

2 For subsection (2) (monopoly functions to be exercisable concurrently by the Gas and Electricity Markets Authority) there shall be substituted—

2 The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the Office of Fair Trading.

3 For subsection (4) there shall be substituted—

4 In subsection (6)—

a for the word “(2)” there shall be substituted “ (2A) ”;

b the words from“or paragraph” to “Act 1994” shall cease to have effect; and

c for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

5 For subsection (6A) there shall be substituted—

6 Subsection (7) shall cease to have effect.

19 Water Industry Act 1991 (c. 56)¶

1 Section 31 of the Water Industry Act 1991 (application of monopoly provisions etc. to the Director General of Water Services) shall be amended as follows.

2 For subsection (2) (monopoly functions to be exercisable concurrently by the Director General of Water Services) there shall be substituted—

3 For subsection (4) there shall be substituted—

4 For subsections (5) and (6) there shall be substituted—

5 In subsection (8)—

a the words from “or paragraph” to “Act 1994” shall cease to have effect; and

b for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the 2002 Act ”.

6 For subsection (8A) there shall be substituted—

7 Subsection (9) shall cease to have effect.

20 Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))¶

1 Article 46 of the Electricity (Northern Ireland) Order 1992 (application of monopoly provisions etc. to the Director General of Electricity Supply for Northern Ireland) shall be amended as follows.

2 For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted—

2 The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the Office of Fair Trading.

2A This paragraph applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the generation, transmission or supply of electricity.

2B So far as necessary for the purposes of, or in connection with, paragraphs (2) and (2A), references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).

3 For paragraph (4) there shall be substituted—

4 In paragraph (6)—

a for the words “paragraph (2)” there shall be substituted “ paragraph (2A) ”;

b the words from “or paragraph” to “Act 1994” shall cease to have effect; and

c for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

5 For paragraph (6A) there shall be substituted—

6 Paragraph (7) shall cease to have effect.

21 Railways Act 1993 (c. 43)¶

1 Section 67 of the Railways Act 1993 (application of monopoly provisions etc. to the Rail Regulator) shall be amended as follows.

2 For subsection (2) (monopoly functions to be exercisable concurrently by the Rail Regulator) there shall be substituted—

3 In subsection (3ZA) for the words “subsection (3)” there shall be substituted “ subsections (2A) and (3) ”.

4 For subsection (4) there shall be substituted—

5 In subsection (7)—

a for the words “on a monopoly reference” there shall be substituted “ under section 136 or 142 of the Enterprise Act 2002 ”;

b the words from “was made” to “that it” shall cease to have effect; and

c for the word “him” there shall be substituted “ the Regulator ”.

6 In subsection (8)—

a for the word “(2)” there shall be substituted “ (2A) ”;

b the words from “or paragraph” to “Act 1994” shall cease to have effect; and

c for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

7 For subsection (9) there shall be substituted—

8 Subsection (10) shall cease to have effect.

22 Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))¶

1 Article 23 of the Gas (Northern Ireland) Order 1996 (application of monopoly provisions etc. to the Director General of Gas for Northern Ireland) shall be amended as follows.

2 For paragraph (2) (monopoly functions to be exercisable concurrently by the Director) there shall be substituted—

3 For paragraph (4) there shall be substituted—

4 In paragraph (6) for the words “Part IV or section 86 or 88 of the 1973 Act” there shall be substituted “ Part 4 of the Enterprise Act 2002 ”.

5 For paragraph (7) there shall be substituted—

6 Paragraph (8) shall cease to have effect.

7 In paragraph (9) for the words “mentioned in paragraph (2) or (3)” there shall be substituted “ exercisable by the Director by virtue of paragraph (2) or (3) ”.

23 Transport Act 2000 (c. 38)¶

1 Section 85 of the Transport Act 2000 (interpretation of Chapter V) shall be amended as follows.

2 In subsection (1) for paragraph (a) there shall be substituted—

3 In subsection (3)—

a the words “the 1973 Act or” shall cease to have effect; and

b for the words “Act concerned” there shall be substituted “ 1998 Act ”.

1 Section 86 of that Act (functions exercisable by the CAA and the Director) shall be amended as follows.

2 For subsection (2) there shall be substituted—

3 In subsection (4)(a) for the words from the beginning to “Act” there shall be substituted “ Part 4 of the 2002 Act (except for sections 166 and 171 but including provisions of that Act applied by that Part) ”.

4 In subsection (7)(a) for the words from the beginning to “Act” there shall be substituted “ Part 4 of the 2002 Act ”.

25 In section 87 of that Act (CAA’s 1973 Act functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.

26 In section 89 of that Act (carrying out functions) for the word “1973”, wherever it appears, there shall be substituted “ 2002 ”.

^C272^C336^F798^C515 SCHEDULE 10 ¶

Procedural requirements for certain enforcement undertakings and orders

Section 90

1 Requirements for accepting undertakings and making orders¶

Paragraph 2 applies in relation to—

a any undertaking under section 73 or 82 or paragraph 3 or 9 of Schedule 7 (other than an undertaking under the enactment concerned which varies an undertaking under that enactment but not in any material respect); and

b any order under section 70C, 75, 83 or 84 or paragraph 5, 10 or 11 of Schedule 7 (other than an order under the enactment concerned which is a revoking order of the kind dealt with by paragraphs 6 to 8 below).

1 Before accepting an undertaking to which this paragraph applies or making an order to which this paragraph applies, the CMA or (as the case may be) the Secretary of State (in this Schedule “the relevant authority”) shall—

a give notice of the proposed undertaking or (as the case may be) order; and

b consider any representations made in accordance with the notice and not withdrawn.

2 A notice under sub-paragraph (1) shall state—

a that the relevant authority proposes to accept the undertaking or (as the case may be) make the order;

b the purpose and effect of the undertaking or (as the case may be) order;

c the situation that the undertaking or (as the case may be) order is seeking to deal with;

d any other facts which the relevant authority considers justify the acceptance of the undertaking or (as the case may be) the making of the order;

e a means of gaining access to an accurate version of the proposed undertaking or (as the case may be) order at all reasonable times; and

f the period (not less than 15 days starting with the date of publication of the notice in the case of an undertaking and not less than 30 days starting with that date in the case of an order) within which representations may be made in relation to the proposed undertaking or (as the case may be) order.

3 A notice under sub-paragraph (1) shall be given by—

a in the case of a proposed order, serving on any person identified in the order as a person on whom a copy of the order should be served a copy of the notice and a copy of the proposed order; and

b in every case, publishing the notice.

4 The relevant authority shall not accept the undertaking with modifications or (as the case may be) make the order with modifications unless the relevant authority—

a gives notice of the proposed modifications; and

b considers any representations made in accordance with the notice and not withdrawn.

5 A notice under sub-paragraph (4) shall state—

a the proposed modifications;

b the reasons for them; and

c the period (not less than 7 days starting with the date of the publication of the notice under sub-paragraph (4)) within which representations may be made in relation to the proposed modifications.

6 A notice under sub-paragraph (4) shall be given by—

a in the case of a proposed order, serving a copy of the notice on any person identified in the order as a person on whom a copy of the order should be served; and

b in every case, publishing the notice.

1 If, after giving notice under paragraph 2(1) or (4), the relevant authority decides—

a not to accept the undertaking concerned or (as the case may be) make the order concerned; and

b not to proceed by virtue of paragraph 5;

the relevant authority shall give notice of that decision.

2 A notice under sub-paragraph (1) shall be given by—

a in the case of a proposed order, serving a copy of the notice on any person identified in the order as a person on whom a copy of the order should be served; and

b in every case, publishing the notice.

4 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)—

a 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

b publish the undertaking or (as the case may be) the order.

1 The requirements of paragraph 2(4) (and those of paragraph 2(1)) shall not apply if the relevant authority—

a has already given notice under paragraph 2(1) but not paragraph 2(4) in relation to the proposed undertaking or order; and

b considers that the modifications which are now being proposed are not material in any respect.

2 The requirements of paragraph 2(4) (and those of paragraph 2(1)) shall not apply if the relevant authority—

a has already given notice under paragraphs 2(1) and (4) in relation to the matter concerned; and

b considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under paragraph 2(4).

6 Termination of undertakings and orders¶

Paragraph 7 applies where the relevant authority is proposing to—

a 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

b 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).

1 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 give notice of the proposed release or (as the case may be) revocation; and

b consider any representations made in accordance with the notice and not withdrawn.

2 A notice under sub-paragraph (1) shall state—

a the fact that a release or (as the case may be) revocation is proposed;

b the reasons for it; and

c the period (not less than 15 days starting with the date of publication of the notice in the case of an undertaking and not less than 30 days starting with that date in the case of an order) within which representations may be made in relation to the proposed release or (as the case may be) revocation.

3 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.

4 A notice under sub-paragraph (1) or (3) shall be given by—

a serving a copy of the notice on the person who gave the undertaking which is being released or (as the case may be) on any person identified in the order being revoked as a person on whom a copy of the order should be served; and

b publishing the notice.

8 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)—

a 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

b publish the release or (as the case may be) the revoking order.

9 Power to dispense with the requirements of the Schedule¶

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.

^F250SCHEDULE 11 ¶

The Competition Commission

Section 185

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^F25012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1398SCHEDULE 12 ¶

Competition Commission: certain procedural rules

Section 187

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^F1196SCHEDULE 13 ¶

Listed enactments

Sections 210 and 243(12)(c)

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^F11966 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 9A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 10A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119618 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 18A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119618B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119618C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 20A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 21A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119621B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119622 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 22A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 24A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119624B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119624C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 25A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119625B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119625C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119628 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1196 28A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119628B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 14 ¶

Specified functions

Sections 238 and 243

Parts 1, ^F1295..., 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).
^F1504...
^F1545...
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.
^F1443...
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.

^C345 SCHEDULE 15 ¶

Enactments conferring functions

Section 241

^C414

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).
^F173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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).
^F173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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).
^F467...
Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).
^F467...
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).
^F672...
Water Industry Act 1991 (c. 56).
Water Resources Act 1991 (c. 57).
^F1092...
Land Drainage Act 1991 (c. 59).
Water Consolidation (Consequential Provisions) Act 1991 (c. 60).
^F932...
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)
^F818...
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.

SCHEDULE 16 ¶

Schedule B1 to Insolvency Act 1986

Section 248

SCHEDULE B1

ADMINISTRATION

ARRANGEMENT OF SCHEDULE

Nature of administration	Paragraphs 1 to 9
Appointment of administrator by court	Paragraphs 10 to 13
Appointment of administrator by holder of floating charge	Paragraphs 14 to 21
Appointment of administrator by company or directors	Paragraphs 22 to 34
Administration application: special cases	Paragraphs 35 to 39
Effect of administration	Paragraphs 40 to 45
Process of administration	Paragraphs 46 to 58
Functions of administrator	Paragraphs 59 to 75
Ending administration	Paragraphs 76 to 86
Replacing administrator	Paragraphs 87 to 99
General	Paragraphs 100 to 116

NATURE OF ADMINISTRATION

1 Administration

1 For the purposes of this Act “administrator” of a company means a person appointed under this Schedule to manage the company’s affairs, business and property.

2 For the purposes of this Act—

a a company is “in administration” while the appointment of an administrator of the company has effect,

b a company “enters administration” when the appointment of an administrator takes effect,

c a company ceases to be in administration when the appointment of an administrator of the company ceases to have effect in accordance with this Schedule, and

d a company does not cease to be in administration merely because an administrator vacates office (by reason of resignation, death or otherwise) or is removed from office.

2 A person may be appointed as administrator of a company—

a by administration order of the court under paragraph 10,

b by the holder of a floating charge under paragraph 14, or

c by the company or its directors under paragraph 22.

3 Purpose of administration

1 The administrator of a company must perform his functions with the objective of—

a rescuing the company as a going concern, or

b achieving a better result for the company’s creditors as a whole than would be likely if the company were wound up (without first being in administration), or

c realising property in order to make a distribution to one or more secured or preferential creditors.

2 Subject to sub-paragraph (4), the administrator of a company must perform his functions in the interests of the company’s creditors as a whole.

3 The administrator must perform his functions with the objective specified in sub-paragraph (1)(a) unless he thinks either—

a that it is not reasonably practicable to achieve that objective, or

b that the objective specified in sub-paragraph (1)(b) would achieve a better result for the company’s creditors as a whole.

4 The administrator may perform his functions with the objective specified in sub-paragraph (1)(c) only if—

a he thinks that it is not reasonably practicable to achieve either of the objectives specified in sub-paragraph (1)(a) and (b), and

b he does not unnecessarily harm the interests of the creditors of the company as a whole.

4 The administrator of a company must perform his functions as quickly and efficiently as is reasonably practicable.

5 Status of administrator

An administrator is an officer of the court (whether or not he is appointed by the court).

6 General restrictions

A person may be appointed as administrator of a company only if he is qualified to act as an insolvency practitioner in relation to the company.

7 A person may not be appointed as administrator of a company which is in administration (subject to the provisions of paragraphs 90 to 97 and 100 to 103 about replacement and additional administrators).

1 A person may not be appointed as administrator of a company which is in liquidation by virtue of—

a a resolution for voluntary winding up, or

b a winding-up order.

2 Sub-paragraph (1)(a) is subject to paragraph 38.

3 Sub-paragraph (1)(b) is subject to paragraphs 37 and 38.

1 A person may not be appointed as administrator of a company which—

a has a liability in respect of a deposit which it accepted in accordance with the Banking Act 1979 (c. 37) or 1987 (c. 22), but

b is not an authorised deposit taker.

2 A person may not be appointed as administrator of a company which effects or carries out contracts of insurance.

3 But sub-paragraph (2) does not apply to a company which—

a is exempt from the general prohibition in relation to effecting or carrying out contracts of insurance, or

b is an authorised deposit taker effecting or carrying out contracts of insurance in the course of a banking business.

4 In this paragraph—

“authorised deposit taker” means a person with permission under Part IV of the Financial Services and Markets Act 2000 (c. 8) to accept deposits, and
“the general prohibition” has the meaning given by section 19 of that Act.

5 This paragraph shall be construed in accordance with—

a section 22 of the Financial Services and Markets Act 2000 (classes of regulated activity and categories of investment),

b any relevant order under that section, and

c Schedule 2 to that Act (regulated activities).

APPOINTMENT OF ADMINISTRATOR BY COURT

10 Administration order

An administration order is an order appointing a person as the administrator of a company.

11 Conditions for making order

The court may make an administration order in relation to a company only if satisfied—

a that the company is or is likely to become unable to pay its debts, and

b that the administration order is reasonably likely to achieve the purpose of administration.

12 Administration application

1 An application to the court for an administration order in respect of a company (an “administration application”) may be made only by—

a the company,

b the directors of the company,

c one or more creditors of the company,

d the justices’ chief executive for a magistrates’ court in the exercise of the power conferred by section 87A of the Magistrates’ Courts Act 1980 (c. 43) (fine imposed on company), or

e a combination of persons listed in paragraphs (a) to (d).

2 As soon as is reasonably practicable after the making of an administration application the applicant shall notify—

a any person who has appointed an administrative receiver of the company,

b any person who is or may be entitled to appoint an administrative receiver of the company,

c any person who is or may be entitled to appoint an administrator of the company under paragraph 14, and

d such other persons as may be prescribed.

3 An administration application may not be withdrawn without the permission of the court.

4 In sub-paragraph (1) “creditor” includes a contingent creditor and a prospective creditor.

5 Sub-paragraph (1) is without prejudice to section 7(4)(b).

13 Powers of court

1 On hearing an administration application the court may—

a make the administration order sought;

b dismiss the application;

c adjourn the hearing conditionally or unconditionally;

d make an interim order;

e treat the application as a winding-up petition and make any order which the court could make under section 125;

f make any other order which the court thinks appropriate.

2 An appointment of an administrator by administration order takes effect—

a at a time appointed by the order, or

b where no time is appointed by the order, when the order is made.

3 An interim order under sub-paragraph (1)(d) may, in particular—

a restrict the exercise of a power of the directors or the company;

b make provision conferring a discretion on the court or on a person qualified to act as an insolvency practitioner in relation to the company.

4 This paragraph is subject to paragraph 39.

APPOINTMENT OF ADMINISTRATOR BY HOLDER OF FLOATING CHARGE

14 Power to appoint

1 The holder of a qualifying floating charge in respect of a company’s property may appoint an administrator of the company.

2 For the purposes of sub-paragraph (1) a floating charge qualifies if created by an instrument which—

a states that this paragraph applies to the floating charge,

b purports to empower the holder of the floating charge to appoint an administrator of the company,

c purports to empower the holder of the floating charge to make an appointment which would be the appointment of an administrative receiver within the meaning given by section 29(2), or

d purports to empower the holder of a floating charge in Scotland to appoint a receiver who on appointment would be an administrative receiver.

3 For the purposes of sub-paragraph (1) a person is the holder of a qualifying floating charge in respect of a company’s property if he holds one or more debentures of the company secured—

a by a qualifying floating charge which relates to the whole or substantially the whole of the company’s property,

b by a number of qualifying floating charges which together relate to the whole or substantially the whole of the company’s property, or

c by charges and other forms of security which together relate to the whole or substantially the whole of the company’s property and at least one of which is a qualifying floating charge.

15 Restrictions on power to appoint

1 A person may not appoint an administrator under paragraph 14 unless—

a he has given at least two business days’ written notice to the holder of any prior floating charge which satisfies paragraph 14(2), or

b the holder of any prior floating charge which satisfies paragraph 14(2) has consented in writing to the making of the appointment.

2 One floating charge is prior to another for the purposes of this paragraph if—

a it was created first, or

b it is to be treated as having priority in accordance with an agreement to which the holder of each floating charge was party.

3 Sub-paragraph (2) shall have effect in relation to Scotland as if the following were substituted for paragraph (a)—

“ it has priority of ranking in accordance with section 464(4)(b) of the Companies Act 1985 (c. 6), ”.

16 An administrator may not be appointed under paragraph 14 while a floating charge on which the appointment relies is not enforceable.

17 An administrator of a company may not be appointed under paragraph 14 if—

a a provisional liquidator of the company has been appointed under section 135, or

b an administrative receiver of the company is in office.

18 Notice of appointment

1 A person who appoints an administrator of a company under paragraph 14 shall file with the court—

a a notice of appointment, and

b such other documents as may be prescribed.

2 The notice of appointment must include a statutory declaration by or on behalf of the person who makes the appointment—

a that the person is the holder of a qualifying floating charge in respect of the company’s property,

b that each floating charge relied on in making the appointment is (or was) enforceable on the date of the appointment, and

c that the appointment is in accordance with this Schedule.

3 The notice of appointment must identify the administrator and must be accompanied by a statement by the administrator—

a that he consents to the appointment,

b that in his opinion the purpose of administration is reasonably likely to be achieved, and

c giving such other information and opinions as may be prescribed.

4 For the purpose of a statement under sub-paragraph (3) an administrator may rely on information supplied by directors of the company (unless he has reason to doubt its accuracy).

5 The notice of appointment and any document accompanying it must be in the prescribed form.

6 A statutory declaration under sub-paragraph (2) must be made during the prescribed period.

7 A person commits an offence if in a statutory declaration under sub-paragraph (2) he makes a statement—

a which is false, and

b which he does not reasonably believe to be true.

19 Commencement of appointment

The appointment of an administrator under paragraph 14 takes effect when the requirements of paragraph 18 are satisfied.

20 A person who appoints an administrator under paragraph 14—

a shall notify the administrator and such other persons as may be prescribed as soon as is reasonably practicable after the requirements of paragraph 18 are satisfied, and

b commits an offence if he fails without reasonable excuse to comply with paragraph (a).

21 Invalid appointment: indemnity

1 This paragraph applies where—

a a person purports to appoint an administrator under paragraph 14, and

b the appointment is discovered to be invalid.

2 The court may order the person who purported to make the appointment to indemnify the person appointed against liability which arises solely by reason of the appointment’s invalidity.

APPOINTMENT OF ADMINISTRATOR BY COMPANY OR DIRECTORS

22 Power to appoint

1 A company may appoint an administrator.

2 The directors of a company may appoint an administrator.

23 Restrictions on power to appoint

1 This paragraph applies where an administrator of a company is appointed—

a under paragraph 22, or

b on an administration application made by the company or its directors.

2 An administrator of the company may not be appointed under paragraph 22 during the period of 12 months beginning with the date on which the appointment referred to in sub-paragraph (1) ceases to have effect.

1 If a moratorium for a company under Schedule A1 ends on a date when no voluntary arrangement is in force in respect of the company, this paragraph applies for the period of 12 months beginning with that date.

2 This paragraph also applies for the period of 12 months beginning with the date on which a voluntary arrangement in respect of a company ends if—

a the arrangement was made during a moratorium for the company under Schedule A1, and

b the arrangement ends prematurely (within the meaning of section 7B).

3 While this paragraph applies, an administrator of the company may not be appointed under paragraph 22.

25 An administrator of a company may not be appointed under paragraph 22 if—

a a petition for the winding up of the company has been presented and is not yet disposed of,

b an administration application has been made and is not yet disposed of, or

c an administrative receiver of the company is in office.

26 Notice of intention to appoint

1 A person who proposes to make an appointment under paragraph 22 shall give at least five business days’ written notice to—

a any person who is or may be entitled to appoint an administrative receiver of the company, and

b any person who is or may be entitled to appoint an administrator of the company under paragraph 14.

2 A person who proposes to make an appointment under paragraph 22 shall also give such notice as may be prescribed to such other persons as may be prescribed.

3 A notice under this paragraph must—

a identify the proposed administrator, and

b be in the prescribed form.

1 A person who gives notice of intention to appoint under paragraph 26 shall file with the court as soon as is reasonably practicable a copy of—

a the notice, and

b any document accompanying it.

2 The copy filed under sub-paragraph (1) must be accompanied by a statutory declaration made by or on behalf of the person who proposes to make the appointment—

a that the company is or is likely to become unable to pay its debts,

b that the company is not in liquidation, and

c that, so far as the person making the statement is able to ascertain, the appointment is not prevented by paragraphs 23 to 25, and

d to such additional effect, and giving such information, as may be prescribed.

3 A statutory declaration under sub-paragraph (2) must—

a be in the prescribed form, and

b be made during the prescribed period.

4 A person commits an offence if in a statutory declaration under sub-paragraph (2) he makes a statement—

a which is false, and

b which he does not reasonably believe to be true.

1 An appointment may not be made under paragraph 22 unless the person who makes the appointment has complied with any requirement of paragraphs 26 and 27 and—

a the period of notice specified in paragraph 26(1) has expired, or

b each person to whom notice has been given under paragraph 26(1) has consented in writing to the making of the appointment.

2 An appointment may not be made under paragraph 22 after the period of ten business days beginning with the date on which the notice of intention to appoint is filed under paragraph 27(1).

29 Notice of appointment

1 A person who appoints an administrator of a company under paragraph 22 shall file with the court—

a a notice of appointment, and

b such other documents as may be prescribed.

2 The notice of appointment must include a statutory declaration by or on behalf of the person who makes the appointment—

a that the person is entitled to make an appointment under paragraph 22,

b that the appointment is in accordance with this Schedule, and

c that, so far as the person making the statement is able to ascertain, the statements made and information given in the statutory declaration filed with the notice of intention to appoint remain accurate.

3 The notice of appointment must identify the administrator and must be accompanied by a statement by the administrator—

a that he consents to the appointment,

b that in his opinion the purpose of administration is reasonably likely to be achieved, and

c giving such other information and opinions as may be prescribed.

4 For the purpose of a statement under sub-paragraph (3) an administrator may rely on information supplied by directors of the company (unless he has reason to doubt its accuracy).

5 The notice of appointment and any document accompanying it must be in the prescribed form.

6 A statutory declaration under sub-paragraph (2) must be made during the prescribed period.

7 A person commits an offence if in a statutory declaration under sub-paragraph (2) he makes a statement—

a which is false, and

b which he does not reasonably believe to be true.

30 In a case in which no person is entitled to notice of intention to appoint under paragraph 26(1) (and paragraph 28 therefore does not apply)—

a the statutory declaration accompanying the notice of appointment must include the statements and information required under paragraph 27(2), and

b paragraph 29(2)(c) shall not apply.

31 Commencement of appointment

The appointment of an administrator under paragraph 22 takes effect when the requirements of paragraph 29 are satisfied.

32 A person who appoints an administrator under paragraph 22—

a shall notify the administrator and such other persons as may be prescribed as soon as is reasonably practicable after the requirements of paragraph 29 are satisfied, and

b commits an offence if he fails without reasonable excuse to comply with paragraph (a).

33 If before the requirements of paragraph 29 are satisfied the company enters administration by virtue of an administration order or an appointment under paragraph 14—

a the appointment under paragraph 22 shall not take effect, and

b paragraph 32 shall not apply.

34 Invalid appointment: indemnity

1 This paragraph applies where—

a a person purports to appoint an administrator under paragraph 22, and

b the appointment is discovered to be invalid.

2 The court may order the person who purported to make the appointment to indemnify the person appointed against liability which arises solely by reason of the appointment’s invalidity.

ADMINISTRATION APPLICATION – SPECIAL CASES

35 Application by holder of floating charge

1 This paragraph applies where an administration application in respect of a company—

a is made by the holder of a qualifying floating charge in respect of the company’s property, and

b includes a statement that the application is made in reliance on this paragraph.

2 The court may make an administration order—

a whether or not satisfied that the company is or is likely to become unable to pay its debts, but

b only if satisfied that the applicant could appoint an administrator under paragraph 14.

36 Intervention by holder of floating charge

1 This paragraph applies where—

a an administration application in respect of a company is made by a person who is not the holder of a qualifying floating charge in respect of the company’s property, and

b the holder of a qualifying floating charge in respect of the company’s property applies to the court to have a specified person appointed as administrator (and not the person specified by the administration applicant).

2 The court shall grant an application under sub-paragraph (1)(b) unless the court thinks it right to refuse the application because of the particular circumstances of the case.

37 Application where company in liquidation

1 This paragraph applies where the holder of a qualifying floating charge in respect of a company’s property could appoint an administrator under paragraph 14 but for paragraph 8(1)(b).

2 The holder of the qualifying floating charge may make an administration application.

3 If the court makes an administration order on hearing an application made by virtue of sub-paragraph (2)—

a the court shall discharge the winding-up order,

b the court shall make provision for such matters as may be prescribed,

c the court may make other consequential provision,

d the court shall specify which of the powers under this Schedule are to be exercisable by the administrator, and

e this Schedule shall have effect with such modifications as the court may specify.

1 The liquidator of a company may make an administration application.

2 If the court makes an administration order on hearing an application made by virtue of sub-paragraph (1)—

a the court shall discharge any winding-up order in respect of the company,

b the court shall make provision for such matters as may be prescribed,

c the court may make other consequential provision,

d the court shall specify which of the powers under this Schedule are to be exercisable by the administrator, and

e this Schedule shall have effect with such modifications as the court may specify.

39 Effect of administrative receivership

1 Where there is an administrative receiver of a company the court must dismiss an administration application in respect of the company unless—

a the person by or on behalf of whom the receiver was appointed consents to the making of the administration order,

b the court thinks that the security by virtue of which the receiver was appointed would be liable to be released or discharged under sections 238 to 240 (transaction at undervalue and preference) if an administration order were made,

c the court thinks that the security by virtue of which the receiver was appointed would be avoided under section 245 (avoidance of floating charge) if an administration order were made, or

d the court thinks that the security by virtue of which the receiver was appointed would be challengeable under section 242 (gratuitous alienations) or 243 (unfair preferences) or under any rule of law in Scotland.

2 Sub-paragraph (1) applies whether the administrative receiver is appointed before or after the making of the administration application.

EFFECT OF ADMINISTRATION

40 Dismissal of pending winding-up petition

1 A petition for the winding up of a company—

a shall be dismissed on the making of an administration order in respect of the company, and

b shall be suspended while the company is in administration following an appointment under paragraph 14.

2 Sub-paragraph (1)(b) does not apply to a petition presented under—

a section 124A (public interest), or

b section 367 of the Financial Services and Markets Act 2000 (c. 8) (petition by Financial Services Authority).

3 Where an administrator becomes aware that a petition was presented under a provision referred to in sub-paragraph (2) before his appointment, he shall apply to the court for directions under paragraph 63.

41 Dismissal of administrative or other receiver

1 When an administration order takes effect in respect of a company any administrative receiver of the company shall vacate office.

2 Where a company is in administration, any receiver of part of the company’s property shall vacate office if the administrator requires him to.

3 Where an administrative receiver or receiver vacates office under sub-paragraph (1) or (2)—

a his remuneration shall be charged on and paid out of any property of the company which was in his custody or under his control immediately before he vacated office, and

b he need not take any further steps under section 40 or 59.

4 In the application of sub-paragraph (3)(a)—

a “remuneration” includes expenses properly incurred and any indemnity to which the administrative receiver or receiver is entitled out of the assets of the company,

b the charge imposed takes priority over security held by the person by whom or on whose behalf the administrative receiver or receiver was appointed, and

c the provision for payment is subject to paragraph 43.

42 Moratorium on insolvency proceedings

1 This paragraph applies to a company in administration.

2 No resolution may be passed for the winding up of the company.

3 No order may be made for the winding up of the company.

4 Sub-paragraph (3) does not apply to an order made on a petition presented under—

a section 124A (public interest), or

b section 367 of the Financial Services and Markets Act 2000 (c. 8) (petition by Financial Services Authority).

5 If a petition presented under a provision referred to in sub-paragraph (4) comes to the attention of the administrator, he shall apply to the court for directions under paragraph 63.

43 Moratorium on other legal process

1 This paragraph applies to a company in administration.

2 No step may be taken to enforce security over the company’s property except—

a with the consent of the administrator, or

b with the permission of the court.

3 No step may be taken to repossess goods in the company’s possession under a hire-purchase agreement except—

a with the consent of the administrator, or

b with the permission of the court.

4 A landlord may not exercise a right of forfeiture by peaceable re-entry in relation to premises let to the company except—

a with the consent of the administrator, or

b with the permission of the court.

5 In Scotland, a landlord may not exercise a right of irritancy in relation to premises let to the company except—

a with the consent of the administrator, or

b with the permission of the court.

6 No legal process (including legal proceedings, execution, distress and diligence) may be instituted or continued against the company or property of the company except—

a with the consent of the administrator, or

b with the permission of the court.

6A An administrative receiver of the company may not be appointed.

7 Where the court gives permission for a transaction under this paragraph it may impose a condition on or a requirement in connection with the transaction.

8 In this paragraph “landlord” includes a person to whom rent is payable.

44 Interim moratorium

1 This paragraph applies where an administration application in respect of a company has been made and—

a the application has not yet been granted or dismissed, or

b the application has been granted but the administration order has not yet taken effect.

2 This paragraph also applies from the time when a copy of notice of intention to appoint an administrator under paragraph 14 is filed with the court until—

a the appointment of the administrator takes effect, or

b the period of five business days beginning with the date of filing expires without an administrator having been appointed.

3 Sub-paragraph (2) has effect in relation to a notice of intention to appoint only if it is in the prescribed form.

4 This paragraph also applies from the time when a copy of notice of intention to appoint an administrator is filed with the court under paragraph 27(1) until—

a the appointment of the administrator takes effect, or

b the period specified in paragraph 28(2) expires without an administrator having been appointed.

5 The provisions of paragraphs 42 and 43 shall apply (ignoring any reference to the consent of the administrator).

6 If there is an administrative receiver of the company when the administration application is made, the provisions of paragraphs 42 and 43 shall not begin to apply by virtue of this paragraph until the person by or on behalf of whom the receiver was appointed consents to the making of the administration order.

7 This paragraph does not prevent or require the permission of the court for—

a the presentation of a petition for the winding up of the company under a provision mentioned in paragraph 42(4),

b the appointment of an administrator under paragraph 14,

c the appointment of an administrative receiver of the company, or

d the carrying out by an administrative receiver (whenever appointed) of his functions.

45 Publicity

1 While a company is in administration every business document issued by or on behalf of the company or the administrator must state—

a the name of the administrator, and

b that the affairs, business and property of the company are being managed by him.

2 Any of the following commits an offence if without reasonable excuse he authorises or permits a contravention of sub-paragraph (1)—

a the administrator,

b an officer of the company, and

c the company.

3 In sub-paragraph (1) “business document” means—

a an invoice,

b an order for goods or services, and

c a business letter.

PROCESS OF ADMINISTRATION

46 Announcement of administrator’s appointment

1 This paragraph applies where a person becomes the administrator of a company.

2 As soon as is reasonably practicable the administrator shall—

a send a notice of his appointment to the company, and

b publish a notice of his appointment in the prescribed manner.

3 As soon as is reasonably practicable the administrator shall—

a obtain a list of the company’s creditors, and

b send a notice of his appointment to each creditor of whose claim and address he is aware.

4 The administrator shall send a notice of his appointment to the registrar of companies before the end of the period of 7 days beginning with the date specified in sub-paragraph (6).

5 The administrator shall send a notice of his appointment to such persons as may be prescribed before the end of the prescribed period beginning with the date specified in sub-paragraph (6).

6 The date for the purpose of sub-paragraphs (4) and (5) is—

a in the case of an administrator appointed by administration order, the date of the order,

b in the case of an administrator appointed under paragraph 14, the date on which he receives notice under paragraph 20, and

c in the case of an administrator appointed under paragraph 22, the date on which he receives notice under paragraph 32.

7 The court may direct that sub-paragraph (3)(b) or (5)—

a shall not apply, or

b shall apply with the substitution of a different period.

8 A notice under this paragraph must—

a contain the prescribed information, and

b be in the prescribed form.

9 An administrator commits an offence if he fails without reasonable excuse to comply with a requirement of this paragraph.

47 Statement of company’s affairs

1 As soon as is reasonably practicable after appointment the administrator of a company shall by notice in the prescribed form require one or more relevant persons to provide the administrator with a statement of the affairs of the company.

2 The statement must—

a be verified by a statement of truth in accordance with Civil Procedure Rules,

b be in the prescribed form,

c give particulars of the company’s property, debts and liabilities,

d give the names and addresses of the company’s creditors,

e specify the security held by each creditor,

f give the date on which each security was granted, and

g contain such other information as may be prescribed.

3 In sub-paragraph (1) “relevant person” means—

a a person who is or has been an officer of the company,

b a person who took part in the formation of the company during the period of one year ending with the date on which the company enters administration,

c a person employed by the company during that period, and

d a person who is or has been during that period an officer or employee of a company which is or has been during that year an officer of the company.

4 For the purpose of sub-paragraph (3) a reference to employment is a reference to employment through a contract of employment or a contract for services.

5 In Scotland, a statement of affairs under sub-paragraph (1) must be a statutory declaration made in accordance with the Statutory Declarations Act 1835 (c. 62) (and sub-paragraph (2)(a) shall not apply).

1 A person required to submit a statement of affairs must do so before the end of the period of 11 days beginning with the day on which he receives notice of the requirement.

2 The administrator may—

a revoke a requirement under paragraph 47(1), or

b extend the period specified in sub-paragraph (1) (whether before or after expiry).

3 If the administrator refuses a request to act under sub-paragraph (2)—

a the person whose request is refused may apply to the court, and

b the court may take action of a kind specified in sub-paragraph (2).

4 A person commits an offence if he fails without reasonable excuse to comply with a requirement under paragraph 47(1).

49 Administrator’s proposals

1 The administrator of a company shall make a statement setting out proposals for achieving the purpose of administration.

2 A statement under sub-paragraph (1) must, in particular—

a deal with such matters as may be prescribed, and

b where applicable, explain why the administrator thinks that the objective mentioned in paragraph 3(1)(a) or (b) cannot be achieved.

3 Proposals under this paragraph may include—

a a proposal for a voluntary arrangement under Part I of this Act (although this paragraph is without prejudice to section 4(3));

b a proposal for a compromise or arrangement to be sanctioned under section 425 of the Companies Act (compromise with creditors or members).

4 The administrator shall send a copy of the statement of his proposals—

a to the registrar of companies,

b to every creditor of the company of whose claim and address he is aware, and

c to every member of the company of whose address he is aware.

5 The administrator shall comply with sub-paragraph (4)—

a as soon as is reasonably practicable after the company enters administration, and

b in any event, before the end of the period of eight weeks beginning with the day on which the company enters administration.

6 The administrator shall be taken to comply with sub-paragraph (4)(c) if he publishes in the prescribed manner a notice undertaking to provide a copy of the statement of proposals free of charge to any member of the company who applies in writing to a specified address.

7 An administrator commits an offence if he fails without reasonable excuse to comply with sub-paragraph (5).

8 A period specified in this paragraph may be varied in accordance with paragraph 107.

50 Creditors’ meeting

1 In this Schedule “creditors’ meeting” means a meeting of creditors of a company summoned by the administrator—

a in the prescribed manner, and

b giving the prescribed period of notice to every creditor of the company of whose claim and address he is aware.

2 A period prescribed under sub-paragraph (1)(b) may be varied in accordance with paragraph 107.

3 A creditors’ meeting shall be conducted in accordance with the rules.

51 Requirement for initial creditors’ meeting

1 Each copy of an administrator’s statement of proposals sent to a creditor under paragraph 49(4)(b) must be accompanied by an invitation to a creditors’ meeting (an “initial creditors’ meeting”).

2 The date set for an initial creditors’ meeting must be—

a as soon as is reasonably practicable after the company enters administration, and

b in any event, within the period of ten weeks beginning with the date on which the company enters administration.

3 An administrator shall present a copy of his statement of proposals to an initial creditors’ meeting.

4 A period specified in this paragraph may be varied in accordance with paragraph 107.

5 An administrator commits an offence if he fails without reasonable excuse to comply with a requirement of this paragraph.

1 Paragraph 51(1) shall not apply where the statement of proposals states that the administrator thinks—

a that the company has sufficient property to enable each creditor of the company to be paid in full,

b that the company has insufficient property to enable a distribution to be made to unsecured creditors other than by virtue of section 176A(2)(a), or

c that neither of the objectives specified in paragraph 3(1)(a) and (b) can be achieved.

2 But the administrator shall summon an initial creditors’ meeting if it is requested—

a by creditors of the company whose debts amount to at least 10% of the total debts of the company,

b in the prescribed manner, and

c in the prescribed period.

3 A meeting requested under sub-paragraph (2) must be summoned for a date in the prescribed period.

4 The period prescribed under sub-paragraph (3) may be varied in accordance with paragraph 107.

53 Business and result of initial creditors’ meeting

1 An initial creditors’ meeting to which an administrator’s proposals are presented shall consider them and may—

a approve them without modification, or

b approve them with modification to which the administrator consents.

2 After the conclusion of an initial creditors’ meeting the administrator shall as soon as is reasonably practicable report any decision taken to—

a the court,

b the registrar of companies, and

c such other persons as may be prescribed.

3 An administrator commits an offence if he fails without reasonable excuse to comply with sub-paragraph (2).

54 Revision of administrator’s proposals

1 This paragraph applies where—

a an administrator’s proposals have been approved (with or without modification) at an initial creditors’ meeting,

b the administrator proposes a revision to the proposals, and

c the administrator thinks that the proposed revision is substantial.

2 The administrator shall—

a summon a creditors’ meeting,

b send a statement in the prescribed form of the proposed revision with the notice of the meeting sent to each creditor,

c send a copy of the statement, within the prescribed period, to each member of the company of whose address he is aware, and

d present a copy of the statement to the meeting.

3 The administrator shall be taken to have complied with sub-paragraph (2)(c) if he publishes a notice undertaking to provide a copy of the statement free of charge to any member of the company who applies in writing to a specified address.

4 A notice under sub-paragraph (3) must be published—

a in the prescribed manner, and

b within the prescribed period.

5 A creditors’ meeting to which a proposed revision is presented shall consider it and may—

a approve it without modification, or

b approve it with modification to which the administrator consents.

6 After the conclusion of a creditors’ meeting the administrator shall as soon as is reasonably practicable report any decision taken to—

a the court,

b the registrar of companies, and

c such other persons as may be prescribed.

7 An administrator commits an offence if he fails without reasonable excuse to comply with sub-paragraph (6).

55 Failure to obtain approval of administrator’s proposals

1 This paragraph applies where an administrator reports to the court that—

a an initial creditors’ meeting has failed to approve the administrator’s proposals presented to it, or

b a creditors’ meeting has failed to approve a revision of the administrator’s proposals presented to it.

2 The court may—

a provide that the appointment of an administrator shall cease to have effect from a specified time;

b adjourn the hearing conditionally or unconditionally;

c make an interim order;

d make an order on a petition for winding up suspended by virtue of paragraph 40(1)(b);

e make any other order (including an order making consequential provision) that the court thinks appropriate.

56 Further creditors’ meetings

1 The administrator of a company shall summon a creditors’ meeting if—

a it is requested in the prescribed manner by creditors of the company whose debts amount to at least 10% of the total debts of the company, or

b he is directed by the court to summon a creditors’ meeting.

2 An administrator commits an offence if he fails without reasonable excuse to summon a creditors’ meeting as required by this paragraph.

57 Creditors’ committee

1 A creditors’ meeting may establish a creditors’ committee.

2 A creditors’ committee shall carry out functions conferred on it by or under this Act.

3 A creditors’ committee may require the administrator—

a to attend on the committee at any reasonable time of which he is given at least seven days’ notice, and

b to provide the committee with information about the exercise of his functions.

58 Correspondence instead of creditors’ meeting

1 Anything which is required or permitted by or under this Schedule to be done at a creditors’ meeting may be done by correspondence between the administrator and creditors—

a in accordance with the rules, and

b subject to any prescribed condition.

2 A reference in this Schedule to anything done at a creditors’ meeting includes a reference to anything done in the course of correspondence in reliance on sub-paragraph (1).

3 A requirement to hold a creditors’ meeting is satisfied by conducting correspondence in accordance with this paragraph.

FUNCTIONS OF ADMINISTRATOR

59 General powers

1 The administrator of a company may do anything necessary or expedient for the management of the affairs, business and property of the company.

2 A provision of this Schedule which expressly permits the administrator to do a specified thing is without prejudice to the generality of sub-paragraph (1).

3 A person who deals with the administrator of a company in good faith and for value need not inquire whether the administrator is acting within his powers.

60 The administrator of a company has the powers specified in Schedule 1 to this Act.

61 The administrator of a company—

a may remove a director of the company, and

b may appoint a director of the company (whether or not to fill a vacancy).

62 The administrator of a company may call a meeting of members or creditors of the company.

63 The administrator of a company may apply to the court for directions in connection with his functions.

1 A company in administration or an officer of a company in administration may not exercise a management power without the consent of the administrator.

2 For the purpose of sub-paragraph (1)—

a “management power” means a power which could be exercised so as to interfere with the exercise of the administrator’s powers,

b it is immaterial whether the power is conferred by an enactment or an instrument, and

c consent may be general or specific.

65 Distribution

1 The administrator of a company may make a distribution to a creditor of the company.

2 Section 175 shall apply in relation to a distribution under this paragraph as it applies in relation to a winding up.

3 A payment may not be made by way of distribution under this paragraph to a creditor of the company who is neither secured nor preferential unless the court gives permission.

66 The administrator of a company may make a payment otherwise than in accordance with paragraph 65 or paragraph 13 of Schedule 1 if he thinks it likely to assist achievement of the purpose of administration.

67 General duties

The administrator of a company shall on his appointment take custody or control of all the property to which he thinks the company is entitled.

1 Subject to sub-paragraph (2), the administrator of a company shall manage its affairs, business and property in accordance with—

a any proposals approved under paragraph 53,

b any revision of those proposals which is made by him and which he does not consider substantial, and

c any revision of those proposals approved under paragraph 54.

2 If the court gives directions to the administrator of a company in connection with any aspect of his management of the company’s affairs, business or property, the administrator shall comply with the directions.

3 The court may give directions under sub-paragraph (2) only if—

a no proposals have been approved under paragraph 53,

b the directions are consistent with any proposals or revision approved under paragraph 53 or 54,

c the court thinks the directions are required in order to reflect a change in circumstances since the approval of proposals or a revision under paragraph 53 or 54, or

d the court thinks the directions are desirable because of a misunderstanding about proposals or a revision approved under paragraph 53 or 54.

69 Administrator as agent of company

In exercising his functions under this Schedule the administrator of a company acts as its agent.

70 Charged property: floating charge

1 The administrator of a company may dispose of or take action relating to property which is subject to a floating charge as if it were not subject to the charge.

2 Where property is disposed of in reliance on sub-paragraph (1) the holder of the floating charge shall have the same priority in respect of acquired property as he had in respect of the property disposed of.

3 In sub-paragraph (2) “acquired property” means property of the company which directly or indirectly represents the property disposed of.

71 Charged property: non-floating charge

1 The court may by order enable the administrator of a company to dispose of property which is subject to a security (other than a floating charge) as if it were not subject to the security.

2 An order under sub-paragraph (1) may be made only—

a on the application of the administrator, and

b where the court thinks that disposal of the property would be likely to promote the purpose of administration in respect of the company.

3 An order under this paragraph is subject to the condition that there be applied towards discharging the sums secured by the security—

a the net proceeds of disposal of the property, and

b any additional money required to be added to the net proceeds so as to produce the amount determined by the court as the net amount which would be realised on a sale of the property at market value.

4 If an order under this paragraph relates to more than one security, application of money under sub-paragraph (3) shall be in the order of the priorities of the securities.

5 An administrator who makes a successful application for an order under this paragraph shall send a copy of the order to the registrar of companies before the end of the period of 14 days starting with the date of the order.

6 An administrator commits an offence if he fails to comply with sub-paragraph (5) without reasonable excuse.

72 Hire-purchase property

1 The court may by order enable the administrator of a company to dispose of goods which are in the possession of the company under a hire-purchase agreement as if all the rights of the owner under the agreement were vested in the company.

2 An order under sub-paragraph (1) may be made only—

a on the application of the administrator, and

b where the court thinks that disposal of the goods would be likely to promote the purpose of administration in respect of the company.

3 An order under this paragraph is subject to the condition that there be applied towards discharging the sums payable under the hire-purchase agreement—

a the net proceeds of disposal of the goods, and

b any additional money required to be added to the net proceeds so as to produce the amount determined by the court as the net amount which would be realised on a sale of the goods at market value.

4 An administrator who makes a successful application for an order under this paragraph shall send a copy of the order to the registrar of companies before the end of the period of 14 days starting with the date of the order.

5 An administrator commits an offence if he fails without reasonable excuse to comply with sub-paragraph (4).

73 Protection for secured or preferential creditor

1 An administrator’s statement of proposals under paragraph 49 may not include any action which—

a affects the right of a secured creditor of the company to enforce his security,

b would result in a preferential debt of the company being paid otherwise than in priority to its non-preferential debts, or

c would result in one preferential creditor of the company being paid a smaller proportion of his debt than another.

2 Sub-paragraph (1) does not apply to—

a action to which the relevant creditor consents,

b a proposal for a voluntary arrangement under Part I of this Act (although this sub-paragraph is without prejudice to section 4(3)), or

c a proposal for a compromise or arrangement to be sanctioned under section 425 of the Companies Act (compromise with creditors or members).

3 The reference to a statement of proposals in sub-paragraph (1) includes a reference to a statement as revised or modified.

74 Challenge to administrator’s conduct of company

1 A creditor or member of a company in administration may apply to the court claiming that—

a the administrator is acting or has acted so as unfairly to harm the interests of the applicant (whether alone or in common with some or all other members or creditors), or

b the administrator proposes to act in a way which would unfairly harm the interests of the applicant (whether alone or in common with some or all other members or creditors).

2 A creditor or member of a company in administration may apply to the court claiming that the administrator is not performing his functions as quickly or as efficiently as is reasonably practicable.

3 The court may—

a grant relief;

b dismiss the application;

c adjourn the hearing conditionally or unconditionally;

d make an interim order;

e make any other order it thinks appropriate.

4 In particular, an order under this paragraph may—

a regulate the administrator’s exercise of his functions;

b require the administrator to do or not do a specified thing;

c require a creditors’ meeting to be held for a specified purpose;

d provide for the appointment of an administrator to cease to have effect;

e make consequential provision.

5 An order may be made on a claim under sub-paragraph (1) whether or not the action complained of—

a is within the administrator’s powers under this Schedule;

b was taken in reliance on an order under paragraph 71 or 72.

6 An order may not be made under this paragraph if it would impede or prevent the implementation of—

a a voluntary arrangement approved under Part I,

b a compromise or arrangement sanctioned under section 425 of the Companies Act (compromise with creditors and members), or

c proposals or a revision approved under paragraph 53 or 54 more than 28 days before the day on which the application for the order under this paragraph is made.

75 Misfeasance

1 The court may examine the conduct of a person who—

a is or purports to be the administrator of a company, or

b has been or has purported to be the administrator of a company.

2 An examination under this paragraph may be held only on the application of—

a the official receiver,

b the administrator of the company,

c the liquidator of the company,

d a creditor of the company, or

e a contributory of the company.

3 An application under sub-paragraph (2) must allege that the administrator—

a has misapplied or retained money or other property of the company,

b has become accountable for money or other property of the company,

c has breached a fiduciary or other duty in relation to the company, or

d has been guilty of misfeasance.

4 On an examination under this paragraph into a person’s conduct the court may order him—

a to repay, restore or account for money or property;

b to pay interest;

c to contribute a sum to the company’s property by way of compensation for breach of duty or misfeasance.

5 In sub-paragraph (3) “administrator” includes a person who purports or has purported to be a company’s administrator.

6 An application under sub-paragraph (2) may be made in respect of an administrator who has been discharged under paragraph 98 only with the permission of the court.

ENDING ADMINISTRATION

76 Automatic end of administration

1 The appointment of an administrator shall cease to have effect at the end of the period of one year beginning with the date on which it takes effect.

2 But—

a on the application of an administrator the court may by order extend his term of office for a specified period, and

b an administrator’s term of office may be extended for a specified period not exceeding six months by consent.

1 An order of the court under paragraph 76—

a may be made in respect of an administrator whose term of office has already been extended by order or by consent, but

b may not be made after the expiry of the administrator’s term of office.

2 Where an order is made under paragraph 76 the administrator shall as soon as is reasonably practicable notify the registrar of companies.

3 An administrator who fails without reasonable excuse to comply with sub-paragraph (2) commits an offence.

1 In paragraph 76(2)(b) “consent” means consent of—

a each secured creditor of the company, and

b if the company has unsecured debts, creditors whose debts amount to more than 50% of the company’s unsecured debts, disregarding debts of any creditor who does not respond to an invitation to give or withhold consent.

2 But where the administrator has made a statement under paragraph 52(1)(b) “consent” means—

a consent of each secured creditor of the company, or

b if the administrator thinks that a distribution may be made to preferential creditors, consent of—

i each secured creditor of the company, and

ii preferential creditors whose debts amount to more than 50% of the preferential debts of the company, disregarding debts of any creditor who does not respond to an invitation to give or withhold consent.

3 Consent for the purposes of paragraph 76(2)(b) may be—

a written, or

b signified at a creditors’ meeting.

4 An administrator’s term of office—

a may be extended by consent only once,

b may not be extended by consent after extension by order of the court, and

c may not be extended by consent after expiry.

5 Where an administrator’s term of office is extended by consent he shall as soon as is reasonably practicable—

a file notice of the extension with the court, and

b notify the registrar of companies.

6 An administrator who fails without reasonable excuse to comply with sub-paragraph (5) commits an offence.

79 Court ending administration on application of administrator

1 On the application of the administrator of a company the court may provide for the appointment of an administrator of the company to cease to have effect from a specified time.

2 The administrator of a company shall make an application under this paragraph if—

a he thinks the purpose of administration cannot be achieved in relation to the company,

b he thinks the company should not have entered administration, or

c a creditors’ meeting requires him to make an application under this paragraph.

3 The administrator of a company shall make an application under this paragraph if—

a the administration is pursuant to an administration order, and

b the administrator thinks that the purpose of administration has been sufficiently achieved in relation to the company.

4 On an application under this paragraph the court may—

a adjourn the hearing conditionally or unconditionally;

b dismiss the application;

c make an interim order;

d make any order it thinks appropriate (whether in addition to, in consequence of or instead of the order applied for).

80 Termination of administration where objective achieved

1 This paragraph applies where an administrator of a company is appointed under paragraph 14 or 22.

2 If the administrator thinks that the purpose of administration has been sufficiently achieved in relation to the company he may file a notice in the prescribed form—

a with the court, and

b with the registrar of companies.

3 The administrator’s appointment shall cease to have effect when the requirements of sub-paragraph (2) are satisfied.

4 Where the administrator files a notice he shall within the prescribed period send a copy to every creditor of the company of whose claim and address he is aware.

5 The rules may provide that the administrator is taken to have complied with sub-paragraph (4) if before the end of the prescribed period he publishes in the prescribed manner a notice undertaking to provide a copy of the notice under sub-paragraph (2) to any creditor of the company who applies in writing to a specified address.

6 An administrator who fails without reasonable excuse to comply with sub-paragraph (4) commits an offence.

81 Court ending administration on application of creditor

1 On the application of a creditor of a company the court may provide for the appointment of an administrator of the company to cease to have effect at a specified time.

2 An application under this paragraph must allege an improper motive—

a in the case of an administrator appointed by administration order, on the part of the applicant for the order, or

b in any other case, on the part of the person who appointed the administrator.

3 On an application under this paragraph the court may—

a adjourn the hearing conditionally or unconditionally;

b dismiss the application;

c make an interim order;

d make any order it thinks appropriate (whether in addition to, in consequence of or instead of the order applied for).

82 Public interest winding-up

1 This paragraph applies where a winding-up order is made for the winding up of a company in administration on a petition presented under—

a section 124A (public interest), or

b section 367 of the Financial Services and Markets Act 2000 (c. 8) (petition by Financial Services Authority).

2 This paragraph also applies where a provisional liquidator of a company in administration is appointed following the presentation of a petition under any of the provisions listed in sub-paragraph (1).

3 The court shall order—

a that the appointment of the administrator shall cease to have effect, or

b that the appointment of the administrator shall continue to have effect.

4 If the court makes an order under sub-paragraph (3)(b) it may also—

a specify which of the powers under this Schedule are to be exercisable by the administrator, and

b order that this Schedule shall have effect in relation to the administrator with specified modifications.

83 Moving from administration to creditors’ voluntary liquidation

1 This paragraph applies in England and Wales where the administrator of a company thinks—

a that the total amount which each secured creditor of the company is likely to receive has been paid to him or set aside for him, and

b that a distribution will be made to unsecured creditors of the company (if there are any).

2 This paragraph applies in Scotland where the administrator of a company thinks—

a that each secured creditor of the company will receive payment in respect of his debt, and

b that a distribution will be made to unsecured creditors (if there are any).

3 The administrator may send to the registrar of companies a notice that this paragraph applies.

4 On receipt of a notice under sub-paragraph (3) the registrar shall register it.

5 If an administrator sends a notice under sub-paragraph (3) he shall as soon as is reasonably practicable—

a file a copy of the notice with the court, and

b send a copy of the notice to each creditor of whose claim and address he is aware.

6 On the registration of a notice under sub-paragraph (3)—

a the appointment of an administrator in respect of the company shall cease to have effect, and

b the company shall be wound up as if a resolution for voluntary winding up under section 84 were passed on the day on which the notice is registered.

7 The liquidator for the purposes of the winding up shall be—

a a person nominated by the creditors of the company in the prescribed manner and within the prescribed period, or

b if no person is nominated under paragraph (a), the administrator.

8 In the application of Part IV to a winding up by virtue of this paragraph—

a section 85 shall not apply,

b section 86 shall apply as if the reference to the time of the passing of the resolution for voluntary winding up were a reference to the beginning of the date of registration of the notice under sub-paragraph (3),

c section 89 does not apply,

d sections 98, 99 and 100 shall not apply,

e section 129 shall apply as if the reference to the time of the passing of the resolution for voluntary winding up were a reference to the beginning of the date of registration of the notice under sub-paragraph (3), and

f any creditors’ committee which is in existence immediately before the company ceases to be in administration shall continue in existence after that time as if appointed as a liquidation committee under section 101.

84 Moving from administration to dissolution

1 If the administrator of a company thinks that the company has no property which might permit a distribution to its creditors, he shall send a notice to that effect to the registrar of companies.

2 The court may on the application of the administrator of a company disapply sub-paragraph (1) in respect of the company.

3 On receipt of a notice under sub-paragraph (1) the registrar shall register it.

4 On the registration of a notice in respect of a company under sub-paragraph (1) the appointment of an administrator of the company shall cease to have effect.

5 If an administrator sends a notice under sub-paragraph (1) he shall as soon as is reasonably practicable—

a file a copy of the notice with the court, and

b send a copy of the notice to each creditor of whose claim and address he is aware.

6 At the end of the period of three months beginning with the date of registration of a notice in respect of a company under sub-paragraph (1) the company is deemed to be dissolved.

7 On an application in respect of a company by the administrator or another interested person the court may—

a extend the period specified in sub-paragraph (6),

b suspend that period, or

c disapply sub-paragraph (6).

8 Where an order is made under sub-paragraph (7) in respect of a company the administrator shall as soon as is reasonably practicable notify the registrar of companies.

9 An administrator commits an offence if he fails without reasonable excuse to comply with sub-paragraph (5).

85 Discharge of administration order where administration ends

1 This paragraph applies where—

a the court makes an order under this Schedule providing for the appointment of an administrator of a company to cease to have effect, and

b the administrator was appointed by administration order.

2 The court shall discharge the administration order.

86 Notice to Companies Registrar where administration ends

1 This paragraph applies where the court makes an order under this Schedule providing for the appointment of an administrator to cease to have effect.

2 The administrator shall send a copy of the order to the registrar of companies within the period of 14 days beginning with the date of the order.

3 An administrator who fails without reasonable excuse to comply with sub-paragraph (2) commits an offence.

REPLACING ADMINISTRATOR

87 Resignation of administrator

1 An administrator may resign only in prescribed circumstances.

2 Where an administrator may resign he may do so only—

a in the case of an administrator appointed by administration order, by notice in writing to the court,

b in the case of an administrator appointed under paragraph 14, by notice in writing to the holder of the floating charge by virtue of which the appointment was made ,

c in the case of an administrator appointed under paragraph 22(1), by notice in writing to the company, or

d in the case of an administrator appointed under paragraph 22(2), by notice in writing to the directors of the company.

88 Removal of administrator from office

The court may by order remove an administrator from office.

89 Administrator ceasing to be qualified

1 The administrator of a company shall vacate office if he ceases to be qualified to act as an insolvency practitioner in relation to the company.

2 Where an administrator vacates office by virtue of sub-paragraph (1) he shall give notice in writing—

a in the case of an administrator appointed by administration order, to the court,

b in the case of an administrator appointed under paragraph 14, to the holder of the floating charge by virtue of which the appointment was made ,

c in the case of an administrator appointed under paragraph 22(1), to the company, or

d in the case of an administrator appointed under paragraph 22(2), to the directors of the company.

3 An administrator who fails without reasonable excuse to comply with sub-paragraph (2) commits an offence.

90 Supplying vacancy in office of administrator

Paragraphs 91 to 95 apply where an administrator—

a dies,

b resigns,

c is removed from office under paragraph 88, or

d vacates office under paragraph 89.

1 Where the administrator was appointed by administration order, the court may replace the administrator on an application under this sub-paragraph made by—

a a creditors’ committee of the company,

b the company,

c the directors of the company,

d one or more creditors of the company, or

e where more than one person was appointed to act jointly or concurrently as the administrator, any of those persons who remains in office.

2 But an application may be made in reliance on sub-paragraph (1)(b) to (d) only where—

a there is no creditors’ committee of the company,

b the court is satisfied that the creditors’ committee or a remaining administrator is not taking reasonable steps to make a replacement, or

c the court is satisfied that for another reason it is right for the application to be made.

92 Where the administrator was appointed under paragraph 14 the holder of the floating charge by virtue of which the appointment was made may replace the administrator.

1 Where the administrator was appointed under paragraph 22(1) by the company it may replace the administrator.

2 A replacement under this paragraph may be made only—

a with the consent of each person who is the holder of a qualifying floating charge in respect of the company’s property, or

b where consent is withheld, with the permission of the court.

1 Where the administrator was appointed under paragraph 22(2) the directors of the company may replace the administrator.

2 A replacement under this paragraph may be made only—

a with the consent of each person who is the holder of a qualifying floating charge in respect of the company’s property, or

b where consent is withheld, with the permission of the court.

95 The court may replace an administrator on the application of a person listed in paragraph 91(1) if the court—

a is satisfied that a person who is entitled to replace the administrator under any of paragraphs 92 to 94 is not taking reasonable steps to make a replacement, or

b that for another reason it is right for the court to make the replacement.

96 Substitution of administrator: competing floating charge-holder

1 This paragraph applies where an administrator of a company is appointed under paragraph 14 by the holder of a qualifying floating charge in respect of the company’s property.

2 The holder of a prior qualifying floating charge in respect of the company’s property may apply to the court for the administrator to be replaced by an administrator nominated by the holder of the prior floating charge.

3 One floating charge is prior to another for the purposes of this paragraph if—

a it was created first, or

b it is to be treated as having priority in accordance with an agreement to which the holder of each floating charge was party.

4 Sub-paragraph (3) shall have effect in relation to Scotland as if the following were substituted for paragraph (a)—

“ it has priority of ranking in accordance with section 464(4)(b) of the Companies Act 1985 (c. 6), ”.

97 Substitution of administrator appointed by company or directors: creditors’ meeting

1 This paragraph applies where—

a an administrator of a company is appointed by a company or directors under paragraph 22, and

b there is no holder of a qualifying floating charge in respect of the company’s property.

2 A creditors’ meeting may replace the administrator.

3 A creditors’ meeting may act under sub-paragraph (2) only if the new administrator’s written consent to act is presented to the meeting before the replacement is made.

98 Vacation of office: discharge from liability

1 Where a person ceases to be the administrator of a company (whether because he vacates office by reason of resignation, death or otherwise, because he is removed from office or because his appointment ceases to have effect) he is discharged from liability in respect of any action of his as administrator.

2 The discharge provided by sub-paragraph (1) takes effect—

a in the case of an administrator who dies, on the filing with the court of notice of his death,

b in the case of an administrator appointed under paragraph 14 or 22, at a time appointed by resolution of the creditors’ committee or, if there is no committee, by resolution of the creditors, or

c in any case, at a time specified by the court.

3 For the purpose of the application of sub-paragraph (2)(b) in a case where the administrator has made a statement under paragraph 52(1)(b), a resolution shall be taken as passed if (and only if) passed with the approval of—

a each secured creditor of the company, or

b if the administrator has made a distribution to preferential creditors or thinks that a distribution may be made to preferential creditors—

i each secured creditor of the company, and

4 Discharge—

a applies to liability accrued before the discharge takes effect, and

b does not prevent the exercise of the court’s powers under paragraph 75.

99 Vacation of office: charges and liabilities

1 This paragraph applies where a person ceases to be the administrator of a company (whether because he vacates office by reason of resignation, death or otherwise, because he is removed from office or because his appointment ceases to have effect).

2 In this paragraph—

“the former administrator” means the person referred to in sub-paragraph (1), and
“cessation” means the time when he ceases to be the company’s administrator.

3 The former administrator’s remuneration and expenses shall be—

a charged on and payable out of property of which he had custody or control immediately before cessation, and

b payable in priority to any security to which paragraph 70 applies.

4 A sum payable in respect of a debt or liability arising out of a contract entered into by the former administrator or a predecessor before cessation shall be—

a charged on and payable out of property of which the former administrator had custody or control immediately before cessation, and

b payable in priority to any charge arising under sub-paragraph (3).

5 Sub-paragraph (4) shall apply to a liability arising under a contract of employment which was adopted by the former administrator or a predecessor before cessation; and for that purpose—

a action taken within the period of 14 days after an administrator’s appointment shall not be taken to amount or contribute to the adoption of a contract,

b no account shall be taken of a liability which arises, or in so far as it arises, by reference to anything which is done or which occurs before the adoption of the contract of employment, and

c no account shall be taken of a liability to make a payment other than wages or salary.

6 In sub-paragraph (5)(c) “wages or salary” includes—

a a sum payable in respect of a period of holiday (for which purpose the sum shall be treated as relating to the period by reference to which the entitlement to holiday accrued),

b a sum payable in respect of a period of absence through illness or other good cause,

c a sum payable in lieu of holiday,

d in respect of a period, a sum which would be treated as earnings for that period for the purposes of an enactment about social security, and

e a contribution to an occupational pension scheme.

GENERAL

100 Joint and concurrent administrators

1 In this Schedule—

a a reference to the appointment of an administrator of a company includes a reference to the appointment of a number of persons to act jointly or concurrently as the administrator of a company, and

b a reference to the appointment of a person as administrator of a company includes a reference to the appointment of a person as one of a number of persons to act jointly or concurrently as the administrator of a company.

2 The appointment of a number of persons to act as administrator of a company must specify—

a which functions (if any) are to be exercised by the persons appointed acting jointly, and

b which functions (if any) are to be exercised by any or all of the persons appointed.

101

1 This paragraph applies where two or more persons are appointed to act jointly as the administrator of a company.

2 A reference to the administrator of the company is a reference to those persons acting jointly.

3 But a reference to the administrator of a company in paragraphs 87 to 99 of this Schedule is a reference to any or all of the persons appointed to act jointly.

4 Where an offence of omission is committed by the administrator, each of the persons appointed to act jointly—

a commits the offence, and

b may be proceeded against and punished individually.

5 The reference in paragraph 45(1)(a) to the name of the administrator is a reference to the name of each of the persons appointed to act jointly.

6 Where persons are appointed to act jointly in respect of only some of the functions of the administrator of a company, this paragraph applies only in relation to those functions.

102

1 This paragraph applies where two or more persons are appointed to act concurrently as the administrator of a company.

2 A reference to the administrator of a company in this Schedule is a reference to any of the persons appointed (or any combination of them).

103

1 Where a company is in administration, a person may be appointed to act as administrator jointly or concurrently with the person or persons acting as the administrator of the company.

2 Where a company entered administration by administration order, an appointment under sub-paragraph (1) must be made by the court on the application of—

a a person or group listed in paragraph 12(1)(a) to (e), or

b the person or persons acting as the administrator of the company.

3 Where a company entered administration by virtue of an appointment under paragraph 14, an appointment under sub-paragraph (1) must be made by—

a the holder of the floating charge by virtue of which the appointment was made, or

b the court on the application of the person or persons acting as the administrator of the company.

4 Where a company entered administration by virtue of an appointment under paragraph 22(1), an appointment under sub-paragraph (1) above must be made either by the court on the application of the person or persons acting as the administrator of the company or—

a by the company, and

b with the consent of each person who is the holder of a qualifying floating charge in respect of the company’s property or, where consent is withheld, with the permission of the court.

5 Where a company entered administration by virtue of an appointment under paragraph 22(2), an appointment under sub-paragraph (1) must be made either by the court on the application of the person or persons acting as the administrator of the company or—

a by the directors of the company, and

b with the consent of each person who is the holder of a qualifying floating charge in respect of the company’s property or, where consent is withheld, with the permission of the court.

6 An appointment under sub-paragraph (1) may be made only with the consent of the person or persons acting as the administrator of the company.

104 Presumption of validity

An act of the administrator of a company is valid in spite of a defect in his appointment or qualification.

105 Majority decision of directors

A reference in this Schedule to something done by the directors of a company includes a reference to the same thing done by a majority of the directors of a company.

106 Penalties

1 A person who is guilty of an offence under this Schedule is liable to a fine (in accordance with section 430 and Schedule 10).

2 A person who is guilty of an offence under any of the following paragraphs of this Schedule is liable to a daily default fine (in accordance with section 430 and Schedule 10)—

a paragraph 20,

b paragraph 32,

c paragraph 46,

d paragraph 48,

e paragraph 49,

f paragraph 51,

g paragraph 53,

h paragraph 54,

i paragraph 56,

j paragraph 71,

k paragraph 72,

l paragraph 77,

m paragraph 78,

n paragraph 80,

o paragraph 84,

p paragraph 86, and

q paragraph 89.

107 Extension of time limit

1 Where a provision of this Schedule provides that a period may be varied in accordance with this paragraph, the period may be varied in respect of a company—

a by the court, and

b on the application of the administrator.

2 A time period may be extended in respect of a company under this paragraph—

a more than once, and

b after expiry.

108

1 A period specified in paragraph 49(5), 50(1)(b) or 51(2) may be varied in respect of a company by the administrator with consent.

2 In sub-paragraph (1) “consent” means consent of—

a each secured creditor of the company, and

3 But where the administrator has made a statement under paragraph 52(1)(b) “consent” means—

a consent of each secured creditor of the company, or

b if the administrator thinks that a distribution may be made to preferential creditors, consent of—

i each secured creditor of the company, and

ii preferential creditors whose debts amount to more than 50% of the total preferential debts of the company, disregarding debts of any creditor who does not respond to an invitation to give or withhold consent.

4 Consent for the purposes of sub-paragraph (1) may be—

a written, or

b signified at a creditors’ meeting.

5 The power to extend under sub-paragraph (1)—

a may be exercised in respect of a period only once,

b may not be used to extend a period by more than 28 days,

c may not be used to extend a period which has been extended by the court, and

d may not be used to extend a period after expiry.

109 Where a period is extended under paragraph 107 or 108, a reference to the period shall be taken as a reference to the period as extended.

110 Amendment of provision about time

1 The Secretary of State may by order amend a provision of this Schedule which—

a requires anything to be done within a specified period of time,

b prevents anything from being done after a specified time, or

c requires a specified minimum period of notice to be given.

2 An order under this paragraph—

a must be made by statutory instrument, and

b shall be subject to annulment in pursuance of a resolution of either House of Parliament.

111 Interpretation

1 In this Schedule—

“administrative receiver” has the meaning given by section 251,
“administrator” has the meaning given by paragraph 1 and, where the context requires, includes a reference to a former administrator,
“company” includes a company which may enter administration by virtue of Article 3 of the EC Regulation,
“correspondence” includes correspondence by telephonic or other electronic means,
“creditors’ meeting” has the meaning given by paragraph 50,
“enters administration” has the meaning given by paragraph 1,
“floating charge” means a charge which is a floating charge on its creation,
“in administration” has the meaning given by paragraph 1,
“hire-purchase agreement” includes a conditional sale agreement, a chattel leasing agreement and a retention of title agreement,
“holder of a qualifying floating charge” in respect of a company’s property has the meaning given by paragraph 14,
“market value” means the amount which would be realised on a sale of property in the open market by a willing vendor,
“the purpose of administration” means an objective specified in paragraph 3, and
“unable to pay its debts” has the meaning given by section 123.

2 A reference in this Schedule to a thing in writing includes a reference to a thing in electronic form.

3 In this Schedule a reference to action includes a reference to inaction.

112 Scotland

In the application of this Schedule to Scotland—

a a reference to filing with the court is a reference to lodging in court, and

b a reference to a charge is a reference to a right in security.

113 Where property in Scotland is disposed of under paragraph 70 or 71, the administrator shall grant to the disponee an appropriate document of transfer or conveyance of the property, and—

a that document, or

b recording, intimation or registration of that document (where recording, intimation or registration of the document is a legal requirement for completion of title to the property),

has the effect of disencumbering the property of or, as the case may be, freeing the property from, the security.

114 In Scotland, where goods in the possession of a company under a hire-purchase agreement are disposed of under paragraph 72, the disposal has the effect of extinguishing as against the disponee all rights of the owner of the goods under the agreement.

115

1 In Scotland, the administrator of a company may make, in or towards the satisfaction of the debt secured by the floating charge, a payment to the holder of a floating charge which has attached to the property subject to the charge.

2 In Scotland, where the administrator thinks that the company has insufficient property to enable a distribution to be made to unsecured creditors other than by virtue of section 176A(2)(a), he may file a notice to that effect with the registrar of companies.

3 On delivery of the notice to the registrar of companies, any floating charge granted by the company shall, unless it has already so attached, attach to the property which is subject to the charge and that attachment shall have effect as if each floating charge is a fixed security over the property to which it has attached.

116 In Scotland, the administrator in making any payment in accordance with paragraph 115 shall make such payment subject to the rights of any of the following categories of persons (which rights shall, except to the extent provided in any instrument, have the following order of priority)—

a the holder of any fixed security which is over property subject to the floating charge and which ranks prior to, or pari passu with, the floating charge,

b creditors in respect of all liabilities and expenses incurred by or on behalf of the administrator,

c the administrator in respect of his liabilities, expenses and remuneration and any indemnity to which he is entitled out of the property of the company,

d the preferential creditors entitled to payment in accordance with paragraph 65,

e the holder of the floating charge in accordance with the priority of that charge in relation to any other floating charge which has attached, and

f the holder of a fixed security, other than one referred to in paragraph (a), which is over property subject to the floating charge.

SCHEDULE 17 ¶

Administration: minor and consequential amendments

Section 248

1 General¶

In any instrument made before section 248(1) to (3) of this Act comes into force—

a 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

b 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.

2 Magistrates’ Courts Act 1980 (c. 43)¶

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 ”.

^F2793 Companies Act 1985 (c. 6)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2795 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2798 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 Insolvency Act 1986 (c. 45)¶

The Insolvency Act 1986 shall be amended as follows.

10 In section 1 (proposal for company voluntary arrangement)—

a 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

b in subsection (3) for paragraph (a) substitute—

11 In section 5(3) (approval of company voluntary arrangement)—

a for “an administration order is in force” substitute “ is in administration ”, and

b for “discharge the administration order” substitute “ provide for the appointment of the administrator to cease to have effect ”.

12 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 ”.

13 In section 51 (power to appoint receiver: Scotland) after subsection (2) insert—

14 At the end of section 100 (creditors’ voluntary winding up of company: appointment of liquidator) add—

15 At the end of section 127 (winding-up: avoidance of property disposition) (which becomes subsection (1)) add—

16 After section 129(1) (commencement of winding up) insert—

17 In section 140 (appointment by court of liquidator following administration or voluntary arrangement) for subsection (1) substitute—

18 In section 212 (misfeasance of officers)—

a in subsection (1)(b) omit “, administrator”,

b in subsection (2) omit (in each place) “or administrator”, and

c in subsection (4)—

i omit “or administrator”, and

ii for “that person” substitute “ he ”.

19 Section 230(1) (administrator to be qualified insolvency practitioner) shall cease to have effect.

20 In section 231(1) and (2) (appointment to office of two or more persons) omit the word “administrator,”.

21 In section 232 (validity of office-holder’s act) omit the word “administrator,”.

22 In section 233 (utility supplies)—

a for subsection (1)(a) substitute—

and

b for subsection (4)(a) substitute—

23 For section 234(1)(a) (getting in the company’s property) substitute—

24 For section 235(4)(a) (co-operation with office-holder) substitute—

25 For section 238(1)(a) (transactions at an undervalue: England and Wales) substitute—

1 Section 240 (relevant time for sections 238 and 239) shall be amended as follows.

2 For subsection (1)(c) substitute—

3 The word “and” after subsection (1)(b) shall cease to have effect.

4 For subsection (3)(a), (aa) and (b) substitute—

a in a case where section 238 or 239 applies by reason of an administrator of a company being appointed by administration order, the date on which the administration application is made,

b in a case where section 238 or 239 applies by reason of an administrator of a company being appointed under paragraph 14 or 22 of Schedule B1 following filing with the court of a copy of a notice of intention to appoint under that paragraph, the date on which the copy of the notice is filed,

c in a case where section 238 or 239 applies by reason of an administrator of a company being appointed otherwise than as mentioned in paragraph (a) or (b), the date on which the appointment takes effect,

d in a case where section 238 or 239 applies by reason of a company going into liquidation either following conversion of administration into winding up by virtue of Article 37 of the EC Regulation or at the time when the appointment of an administrator ceases to have effect, the date on which the company entered administration (or, if relevant, the date on which the application for the administration order was made or a copy of the notice of intention to appoint was filed), and

e in a case where section 238 or 239 applies by reason of a company going into liquidation at any other time, the date of the commencement of the winding up.

1 Section 241 (order under section 238 or 239) shall be amended as follows.

2 For subsection (3A) substitute—

3 For subsection (3B) substitute—

1 Section 242 (gratuitous alienations: Scotland) shall be amended as follows.

2 In subsection (1)(b) for “an administration order is in force in relation to a company” substitute “ a company enters administration ”.

3 In subsection (3)(a)(ii) for “the administration order is made” substitute “ the company enters administration ”.

1 Section 243 (unfair preferences: Scotland) shall be amended as follows.

2 In subsection (1) for “the making of an administration order in relation to the company” substitute “ the company enters administration ”.

3 In subsection (4)(b) for “in the case of an administration order” substitute “ where the company has entered administration ”.

30 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 ”.

1 Section 245 (avoidance of floating charge) shall be amended as follows.

2 The word “or” after subsection (3)(b) shall cease to have effect.

3 For subsection (3)(c) substitute—

4 For subsection (5)(a) and (b) substitute—

a in a case where this section applies by reason of an administrator of a company being appointed by administration order, the date on which the administration application is made,

b in a case where this section applies by reason of an administrator of a company being appointed under paragraph 14 or 22 of Schedule B1 following filing with the court of a copy of notice of intention to appoint under that paragraph, the date on which the copy of the notice is filed,

c in a case where this section applies by reason of an administrator of a company being appointed otherwise than as mentioned in paragraph (a) or (b), the date on which the appointment takes effect, and

d in a case where this section applies by reason of a company going into liquidation, the date of the commencement of the winding up.

32 For section 246(1)(a) (unenforceability of lien on records) substitute—

1 Section 247 (meaning of “insolvency” and “go into liquidation”) shall be amended as follows.

2 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 ”.

3 For subsection (3) substitute—

1 Section 387 (preferential debts: “the relevant date”) shall be amended as follows.

2 In subsection (2) for paragraphs (a) and (b) substitute—

3 In subsection (3)—

a in paragraphs (a), (aa) and (ab) for “the date of the making of the administration order” substitute “ the date on which the company entered administration ”,

b after paragraph (b) insert—

and

c in paragraph (c) for “paragraph (a), (aa), (ab) or (b)” substitute “ paragraph (a), (aa), (ab), (b) or (ba) ”.

4 After subsection (3) insert—

35 In section 422 (power to apply first Group of Parts to banks, &c.) for subsection (1) substitute—

1 The Secretary of State may by order made with the concurrence of the Treasury and after consultation with the Financial Services Authority provide that specified provisions in the first Group of Parts shall apply with specified modifications in relation to any person who—

a has a liability in respect of a deposit which he accepted in accordance with the Banking Act 1979 (c. 37) or 1987 (c. 22), but

b does not have permission under Part IV of the Financial Services and Markets Act 2000 (c. 8) (regulated activities) to accept deposits.

1A Subsection (1)(b) shall be construed in accordance with—

a section 22 of the Financial Services and Markets Act 2000 (classes of regulated activity and categories of investment),

b any relevant order under that section, and

c Schedule 2 to that Act (regulated activities).

36 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 ”.

1 Schedule A1 (moratorium where directors propose voluntary arrangement) shall be amended as follows.

2 In paragraph 4(1) (exclusion from eligibility for moratorium)—

a for paragraph (a) substitute—

and

b after paragraph (f) (and before the word “or”) insert—

3 In paragraph 12(1) (effect of moratorium on creditor) for paragraph (d) substitute—

4 In paragraph 40 (challenge of directors’ actions during moratorium) for sub-paragraph (7) substitute—

1 Schedule 8 (scope of insolvency rules) shall be amended as follows.

2 At the end of paragraph 2 (which becomes sub-paragraph (1)) add—

3 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 ”.

4 After paragraph 14 insert—

5 After paragraph 14A (inserted by sub-paragraph (4) above) insert—

6 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 ”.

1 Schedule 10 (punishment of offences) shall be amended as follows.

2 After the entries for Schedule A1 insert—

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.

3 Omit the entries for the following provisions—

a section 12(2),

b section 15(8),

c section 18(5),

d section 21(3),

e section 22(6),

f section 23(3),

g section 24(7), and

h section 27(6).

40 Company Directors Disqualification Act 1986 (c. 46)¶

The Company Directors Disqualification Act 1986 shall be amended as follows.

41 In section 6 (duty of court to disqualify unfit director of insolvent company)—

a for subsection (2)(b) substitute—

b for subsection (3)(c) substitute—

and

c for subsection (3A)(b) substitute—

^F88142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 Companies Act 1989 (c. 40)¶

The Companies Act 1989 shall be amended as follows.

44 In section 158 (modification of insolvency law)—

a in subsection (3) for paragraph (b) substitute—

and

b after subsection (3) insert—

45 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 ”.

46 After section 167(1) (application by exchange or clearing house about taking default proceedings) insert—

1 Section 175 (financial markets: administration) shall be amended as follows.

2 For subsection (1) substitute—

3 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 ”.

4 After subsection (2) insert—

48 Coal Industry Act 1994 (c. 21)¶

1 Section 36 of the Coal Industry Act 1994 (insolvency of licensed operator) shall be amended as follows.

2 After subsection (2) insert—

3 In subsection (3)—

a after “liquidator” insert “ or administrator ”, and

b after “subsection (2)” insert “ or (2A) ”.

49 Employment Rights Act 1996 (c. 18)¶

1 The Employment Rights Act 1996 shall be amended as follows.

2 In section 166(7) (application by employee for payment by Secretary of State)—

a in paragraph (a) omit “or an administration order”, and

b after paragraph (a) insert—

3 In section 183(3)(a) (insolvency of employer)—

a in paragraph (a) omit “or an administration order”, and

b after paragraph (a) insert—

4 Omit section 189(4) (transfer to Secretary of State of rights and remedies: priority of preferential debts).

50 Housing Act 1996 (c. 52)¶

The Housing Act 1996 shall be amended as follows.

51 At the end of section 40 (initial notice to be given to Housing Corporation or Housing for Wales) add—

7 Subsections (8) and (9) apply in relation to the reference in subsection (3) to applying for an administration order.

8 In a case where an administrator is appointed under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (appointment by floating charge holder, company or directors)—

a the reference includes a reference to appointing an administrator under that paragraph, and

b in respect of an appointment under either of those paragraphs the reference to the applicant shall be taken as a reference to the person making the appointment.

9 In a case where a copy of a notice of intention to appoint an administrator under either of those paragraphs is filed with the court—

a the reference shall be taken to include a reference to the filing of the copy of the notice, and

b in respect of the filing of a copy of a notice of intention to appoint under either of those paragraphs the reference to the applicant shall be taken as a reference to the person giving the notice.

52 At the end of section 41 (further notice to be given to Housing Corporation or Housing for Wales) add—

53 Financial Services and Markets Act 2000 (c. 8)¶

The Financial Services and Markets Act 2000 shall be amended as follows.

1 Section 215 (provision of Financial Services Compensation Scheme in relation to insolvency) shall be amended as follows.

2 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 ”.

3 After subsection (3) insert—

55 For section 359 (administration order) substitute—

359 Administration order

1 The Authority may make an administration application under Schedule B1 to the 1986 Act (or present a petition under Article 22 of the 1989 Order) in relation to a company or insolvent partnership which—

a is or has been an authorised person,

b is or has been an appointed representative, or

c is carrying on or has carried on a regulated activity in contravention of the general prohibition.

2 Subsection (3) applies in relation to an administration application made (or a petition presented) by the Authority by virtue of this section.

3 Any of the following shall be treated for the purpose of paragraph 11(a) of Schedule B1 to the 1986 Act (or Article 21(1)(a) of the 1989 Order) as unable to pay its debts—

a a company or partnership in default on an obligation to pay a sum due and payable under an agreement, and

b an authorised deposit taker in default on an obligation to pay a sum due and payable in respect of a relevant deposit.

4 In this section—

“agreement” means an agreement the making or performance of which constitutes or is part of a regulated activity carried on by the company or partnership,
“authorised deposit taker” means a person with a Part IV permission to accept deposits (but not a person who has a Part IV permission to accept deposits only for the purpose of carrying on another regulated activity in accordance with that permission),
“company” means a company—
1. in respect of which an administrator may be appointed under Schedule B1 to the 1986 Act, or
2. to which Article 21 of the 1989 Order applies, and
“relevant deposit” shall, ignoring any restriction on the meaning of deposit arising from the identity of the person making the deposit, be construed in accordance with—
1. section 22,
2. any relevant order under that section, and
3. Schedule 2.

5 The definition of “authorised deposit taker” in subsection (4) shall be construed in accordance with—

a section 22,

b any relevant order under that section, and

c Schedule 2.

56 For section 361 (administrator to report to Authority) substitute—

57 In section 362 (Financial Services Authority’s right to participate in proceedings)—

a 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) ”,

b after subsection (1) insert—

c in subsection (2)(a) for “petition” substitute “ administration application or the petition ”,

d for subsection (4) substitute—

and

e in subsection (5)(b) for “section 26 of the 1986 Act” substitute “ paragraph 57 of Schedule B1 to the 1986 Act ”.

58 After section 362 insert—

59 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 ”.

SCHEDULE 18 ¶

Schedule 2A to Insolvency Act 1986

Section 250

SCHEDULE 2A

EXCEPTIONS TO PROHIBITION ON APPOINTMENT OF ADMINISTRATIVE RECEIVER: SUPPLEMENTARY PROVISIONS

1 Capital market arrangement

1 For the purposes of section 72B an arrangement is a capital market arrangement if—

a it involves a grant of security to a person holding it as trustee for a person who holds a capital market investment issued by a party to the arrangement, or

b at least one party guarantees the performance of obligations of another party, or

c at least one party provides security in respect of the performance of obligations of another party, or

d the arrangement involves an investment of a kind described in articles 83 to 85 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544) (options, futures and contracts for differences).

2 For the purposes of sub-paragraph (1)—

a a reference to holding as trustee includes a reference to holding as nominee or agent,

b a reference to holding for a person who holds a capital market investment includes a reference to holding for a number of persons at least one of whom holds a capital market investment, and

c a person holds a capital market investment if he has a legal or beneficial interest in it.

3 In section 72B(1) and this paragraph “party” to an arrangement includes a party to an agreement which—

a forms part of the arrangement,

b provides for the raising of finance as part of the arrangement, or

c is necessary for the purposes of implementing the arrangement.

2 Capital market investment

1 For the purposes of section 72B an investment is a capital market investment if it—

a is within article 77 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544) (debt instruments), and

b is rated, listed or traded or designed to be rated, listed or traded.

2 In sub-paragraph (1)—

“rated” means rated for the purposes of investment by an internationally recognised rating agency,
“listed” means admitted to the official list within the meaning given by section 103(1) of the Financial Services and Markets Act 2000 (c. 8) (interpretation), and
“traded” means admitted to trading on a market established under the rules of a recognised investment exchange or on a foreign market.

3 In sub-paragraph (2)—

“recognised investment exchange” has the meaning given by section 285 of the Financial Services and Markets Act 2000 (recognised investment exchange), and
“foreign market” has the same meaning as “relevant market” in article 67(2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (S.I. 2001/1335) (foreign markets).

1 An investment is also a capital market investment for the purposes of section 72B if it consists of a bond or commercial paper issued to one or more of the following—

a an investment professional within the meaning of article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001,

b a person who is, when the agreement mentioned in section 72B(1) is entered into, a certified high net worth individual in relation to a communication within the meaning of article 48(2) of that order,

c a person to whom article 49(2) of that order applies (high net worth company, &c.),

d a person who is, when the agreement mentioned in section 72B(1) is entered into, a certified sophisticated investor in relation to a communication within the meaning of article 50(1) of that order, and

e a person in a State other than the United Kingdom who under the law of that State is not prohibited from investing in bonds or commercial paper.

2 In sub-paragraph (1)—

“bond” shall be construed in accordance with article 77 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544), and
“commercial paper” has the meaning given by article 9(3) of that order.

3 For the purposes of sub-paragraph (1)—

a in applying article 19(5) of the Financial Promotion Order for the purposes of sub-paragraph (1)(a)—

i in article 19(5)(b), ignore the words after “exempt person”,

ii in article 19(5)(c)(i), for the words from “the controlled activity” to the end substitute “a controlled activity”, and

iii in article 19(5)(e) ignore the words from “where the communication” to the end, and

b in applying article 49(2) of that order for the purposes of sub-paragraph (1)(c), ignore article 49(2)(e).

4 “Agreement”

For the purposes of sections 72B and 72E and this Schedule “agreement” includes an agreement or undertaking effected by—

a contract,

b deed, or

c any other instrument intended to have effect in accordance with the law of England and Wales, Scotland or another jurisdiction.

5 Debt

The debt of at least £50 million referred to in section 72B(1)(a) or 72E(2)(a)—

a may be incurred at any time during the life of the capital market arrangement or financed project, and

b may be expressed wholly or partly in foreign currency (in which case the sterling equivalent shall be calculated as at the time when the arrangement is entered into or the project begins).

6 Step-in rights

1 For the purposes of sections 72C to 72E a project has “step-in rights” if a person who provides finance in connection with the project has a conditional entitlement under an agreement to—

a assume sole or principal responsibility under an agreement for carrying out all or part of the project, or

b make arrangements for carrying out all or part of the project.

2 In sub-paragraph (1) a reference to the provision of finance includes a reference to the provision of an indemnity.

7 Project company

1 For the purposes of sections 72C to 72E a company is a “project company” of a project if—

a it holds property for the purpose of the project,

b it has sole or principal responsibility under an agreement for carrying out all or part of the project,

c it is one of a number of companies which together carry out the project,

d it has the purpose of supplying finance to enable the project to be carried out, or

e it is the holding company of a company within any of paragraphs (a) to (d).

2 But a company is not a “project company” of a project if—

a it performs a function within sub-paragraph (1)(a) to (d) or is within sub-paragraph (1)(e), but

b it also performs a function which is not—

i within sub-paragraph (1)(a) to (d),

ii )related to a function within sub-paragraph (1)(a) to (d), or

iii related to the project.

3 For the purposes of this paragraph a company carries out all or part of a project whether or not it acts wholly or partly through agents.

8 “Resources”

In section 72C “resources” includes—

a funds (including payment for the provision of services or facilities),

b assets,

c professional skill,

d the grant of a concession or franchise, and

e any other commercial resource.

9 “Public body”

1 In section 72C “public body” means—

a a body which exercises public functions,

b a body specified for the purposes of this paragraph by the Secretary of State, and

c a body within a class specified for the purposes of this paragraph by the Secretary of State.

2 A specification under sub-paragraph (1) may be—

a general, or

b for the purpose of the application of section 72C to a specified case.

10 Regulated business

1 For the purposes of section 72D a business is regulated if it is carried on—

a in reliance on a licence granted to a person under section 7 of the Telecommunications Act 1984 (c. 12) (telecommunications service),

b in reliance on a licence under section 7 or 7A of the Gas Act 1986 (c. 44) (transport and supply of gas),

c in reliance on a licence granted by virtue of section 41C of that Act (power to prescribe additional licensable activity),

d in reliance on a licence under section 6 of the Electricity Act 1989 (c. 29) (supply of electricity),

e by a water undertaker,

f by a sewerage undertaker,

g by a universal service provider within the meaning given by section 4(3) and (4) of the Postal Services Act 2000 (c. 26),

h by the Post Office company within the meaning given by section 62 of that Act (transfer of property),

i by a relevant subsidiary of the Post Office Company within the meaning given by section 63 of that Act (government holding),

j in reliance on a licence under section 8 of the Railways Act 1993 (c. 43) (railway services),

k in reliance on a licence exemption under section 7 of that Act (subject to sub-paragraph (2) below),

l by the operator of a system of transport which is deemed to be a railway for a purpose of Part I of that Act by virtue of section 81(2) of that Act (tramways, &c.), or

m by the operator of a vehicle carried on flanged wheels along a system within paragraph (l).

2 Sub-paragraph (1)(k) does not apply to the operator of a railway asset on a railway unless on some part of the railway there is a permitted line speed exceeding 40 kilometres per hour.

11 “Person”

A reference to a person in this Schedule includes a reference to a partnership or another unincorporated group of persons.

SCHEDULE 19 ¶

Duration of bankruptcy: transitional provisions

Section 256

1 Introduction¶

This Schedule applies to an individual who immediately before commencement—

a has been adjudged bankrupt, and

b has not been discharged from the bankruptcy.

2 In this Schedule—

“commencement” means the date appointed under section 279 for the commencement of section 256, and
“pre-commencement bankrupt” means an individual to whom this Schedule applies.

3 Neither old law nor new law to apply¶

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).

4 General rule for discharge from pre-commencement bankruptcy¶

1 A pre-commencement bankrupt is , subject to sub-paragraphs (2) and (3), discharged from bankruptcy at whichever is the earlier of—

a the end of the period of one year beginning with commencement, and

b the end of the relevant period applicable to the bankrupt under section 279(1)(b) of the Insolvency Act 1986 (duration of bankruptcy) as it had effect immediately before commencement.

2 An order made under section 279(3) of that Act before commencement—

a shall continue to have effect in respect of the pre-commencement bankrupt after commencement, and

b may be varied or revoked after commencement by an order under section 279(3) as substituted by section 256 of this Act.

3 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.

5 Second-time bankruptcy¶

1 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.

2 The pre-commencement bankrupt shall not be discharged from bankruptcy in accordance with paragraph 4 above.

3 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)).

4 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—

a at the end of the period of five years beginning with commencement, or

b at such earlier time as the court may order on an application under section 280 of the Insolvency Act 1986 (discharge by order) heard after commencement.

5 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.

6 A bankruptcy annulled under section 282 shall be ignored for the purpose of sub-paragraph (1).

6 Criminal bankruptcy¶

A pre-commencement bankrupt who was adjudged bankrupt on a petition under section 264(1)(d) of the Insolvency Act 1986 (criminal bankruptcy)—

a shall not be discharged from bankruptcy in accordance with paragraph 4 above, but

b may be discharged from bankruptcy by an order of the court under section 280 of that Act.

7 Income payments order¶

1 This paragraph applies where—

a a pre-commencement bankrupt is discharged by virtue of paragraph 4(1)(a), and

b an income payments order is in force in respect of him immediately before his discharge.

2 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).

3 But the court may on the application of the pre-commencement bankrupt—

a vary the income payments order;

b provide for the income payments order to cease to have effect before the date referred to in sub-paragraph (2).

8 Bankruptcy restrictions order or undertaking¶

A provision of this Schedule which provides for an individual to be discharged from bankruptcy is subject to—

a any bankruptcy restrictions order (or interim order) which may be made in relation to that individual, and

b any bankruptcy restrictions undertaking entered into by that individual.

SCHEDULE 20 ¶

Schedule 4A to Insolvency Act 1986

Section 257

SCHEDULE 4A

Bankruptcy Restrictions Order and Undertaking

1 Bankruptcy restrictions order

1 A bankruptcy restrictions order may be made by the court.

2 An order may be made only on the application of—

a the Secretary of State, or

b the official receiver acting on a direction of the Secretary of State.

2 Grounds for making order

1 The court shall grant an application for a bankruptcy restrictions order if it thinks it appropriate having regard to the conduct of the bankrupt (whether before or after the making of the bankruptcy order).

2 The court shall, in particular, take into account any of the following kinds of behaviour on the part of the bankrupt—

a failing to keep records which account for a loss of property by the bankrupt, or by a business carried on by him, where the loss occurred in the period beginning 2 years before petition and ending with the date of the application;

b failing to produce records of that kind on demand by the official receiver or the trustee;

c entering into a transaction at an undervalue;

d giving a preference;

e making an excessive pension contribution;

f a failure to supply goods or services which were wholly or partly paid for which gave rise to a claim provable in the bankruptcy;

g trading at a time before commencement of the bankruptcy when the bankrupt knew or ought to have known that he was himself to be unable to pay his debts;

h incurring, before commencement of the bankruptcy, a debt which the bankrupt had no reasonable expectation of being able to pay;

i failing to account satisfactorily to the court, the official receiver or the trustee for a loss of property or for an insufficiency of property to meet bankruptcy debts;

j carrying on any gambling, rash and hazardous speculation or unreasonable extravagance which may have materially contributed to or increased the extent of the bankruptcy or which took place between presentation of the petition and commencement of the bankruptcy;

k neglect of business affairs of a kind which may have materially contributed to or increased the extent of the bankruptcy;

l fraud or fraudulent breach of trust;

m failing to cooperate with the official receiver or the trustee.

3 The court shall also, in particular, consider whether the bankrupt was an undischarged bankrupt at some time during the period of six years ending with the date of the bankruptcy to which the application relates.

4 For the purpose of sub-paragraph (2)—

“before petition” shall be construed in accordance with section 351(c),
“excessive pension contribution” shall be construed in accordance with section 342A,
“preference” shall be construed in accordance with section 340, and
“undervalue” shall be construed in accordance with section 339.

3 Timing of application for order

1 An application for a bankruptcy restrictions order in respect of a bankrupt must be made—

a before the end of the period of one year beginning with the date on which the bankruptcy commences, or

b with the permission of the court.

2 The period specified in sub-paragraph (1)(a) shall cease to run in respect of a bankrupt while the period set for his discharge is suspended under section 279(3).

4 Duration of order

1 A bankruptcy restrictions order—

a shall come into force when it is made, and

b shall cease to have effect at the end of a date specified in the order.

2 The date specified in a bankruptcy restrictions order under sub-paragraph (1)(b) must not be—

a before the end of the period of two years beginning with the date on which the order is made, or

b after the end of the period of 15 years beginning with that date.

5 Interim bankruptcy restrictions order

1 This paragraph applies at any time between—

a the institution of an application for a bankruptcy restrictions order, and

b the determination of the application.

2 The court may make an interim bankruptcy restrictions order if the court thinks that—

a there are prima facie grounds to suggest that the application for the bankruptcy restrictions order will be successful, and

b it is in the public interest to make an interim order.

3 An interim order may be made only on the application of—

a the Secretary of State, or

b the official receiver acting on a direction of the Secretary of State.

4 An interim order—

a shall have the same effect as a bankruptcy restrictions order, and

b shall come into force when it is made.

5 An interim order shall cease to have effect—

a on the determination of the application for the bankruptcy restrictions order,

b on the acceptance of a bankruptcy restrictions undertaking made by the bankrupt, or

c if the court discharges the interim order on the application of the person who applied for it or of the bankrupt.

1 This paragraph applies to a case in which both an interim bankruptcy restrictions order and a bankruptcy restrictions order are made.

2 Paragraph 4(2) shall have effect in relation to the bankruptcy restrictions order as if a reference to the date of that order were a reference to the date of the interim order.

7 Bankruptcy restrictions undertaking

1 A bankrupt may offer a bankruptcy restrictions undertaking to the Secretary of State.

2 In determining whether to accept a bankruptcy restrictions undertaking the Secretary of State shall have regard to the matters specified in paragraph 2(2) and (3).

8 A reference in an enactment to a person in respect of whom a bankruptcy restrictions order has effect (or who is “the subject of” a bankruptcy restrictions order) includes a reference to a person in respect of whom a bankruptcy restrictions undertaking has effect.

1 A bankruptcy restrictions undertaking—

a shall come into force on being accepted by the Secretary of State, and

b shall cease to have effect at the end of a date specified in the undertaking.

2 The date specified under sub-paragraph (1)(b) must not be—

a before the end of the period of two years beginning with the date on which the undertaking is accepted, or

b after the end of the period of 15 years beginning with that date.

3 On an application by the bankrupt the court may—

a annul a bankruptcy restrictions undertaking;

b provide for a bankruptcy restrictions undertaking to cease to have effect before the date specified under sub-paragraph (1)(b).

10 Effect of annulment of bankruptcy order

Where a bankruptcy order is annulled under section 282(1)(a) or (2)—

a any bankruptcy restrictions order, interim order or undertaking which is in force in respect of the bankrupt shall be annulled,

b no new bankruptcy restrictions order or interim order may be made in respect of the bankrupt, and

c no new bankruptcy restrictions undertaking by the bankrupt may be accepted.

11 Where a bankruptcy order is annulled under section 261, 263D or 282(1)(b)—

a the annulment shall not affect any bankruptcy restrictions order, interim order or undertaking in respect of the bankrupt,

b the court may make a bankruptcy restrictions order in relation to the bankrupt on an application instituted before the annulment,

c the Secretary of State may accept a bankruptcy restrictions undertaking offered before the annulment, and

d an application for a bankruptcy restrictions order or interim order in respect of the bankrupt may not be instituted after the annulment.

12 Registration

The Secretary of State shall maintain a register of—

a bankruptcy restrictions orders,

b interim bankruptcy restrictions orders, and

c bankruptcy restrictions undertakings.

SCHEDULE 21 ¶

Effect of bankruptcy restrictions order and undertaking

Section 257

1 Disqualification for acting as receiver or manager¶

The following shall be substituted for section 31 of the Insolvency Act 1986 (c. 45) (receiver and manager: disqualification)—

2 Bankruptcy offences after discharge¶

After section 350(3) of the Insolvency Act 1986 (c. 45) (bankruptcy offences: general: no liability after discharge) there shall be inserted—

3 At the end of section 360 of that Act (obtaining credit and doing business) there shall be inserted—

4 Disqualification for acting as insolvency practitioner¶

At the end of section 390 of that Act (disqualification for insolvency practitioner) there shall be added—

5 Prohibition against involvement in company¶

The following shall be substituted for section 11(1) of the Company Directors Disqualification Act 1986 (c. 46) (bankrupt)—

SCHEDULE 22 ¶

Individual voluntary arrangement

Section 264

1 Annulment of bankruptcy on making of voluntary arrangement¶

The following shall be substituted for section 261 of the Insolvency Act 1986 (effect of voluntary arrangement: undischarged bankrupt)—

261 Additional effect on undischarged bankrupt

1 This section applies where—

a the creditors’ meeting summoned under section 257 approves the proposed voluntary arrangement (with or without modifications), and

b the debtor is an undischarged bankrupt.

2 Where this section applies the court shall annul the bankruptcy order on an application made—

a by the bankrupt, or

b where the bankrupt has not made an application within the prescribed period, by the official receiver.

3 An application under subsection (2) may not be made—

a during the period specified in section 262(3)(a) during which the decision of the creditors’ meeting can be challenged by application under section 262,

b while an application under that section is pending, or

c while an appeal in respect of an application under that section is pending or may be brought.

4 Where this section applies the court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt’s estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement.

^F15812 ^F507...¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Role of official receiver¶

The following shall be inserted after section 389A of that Act (authorisation of nominees and supervisors)—

SCHEDULE 23 ¶

Individual insolvency: minor and consequential amendments

Section 269

1 The Insolvency Act 1986 (c. 45) shall be amended as follows.

2 Section 275 (bankruptcy: summary administration) shall cease to have effect.

3 In section 280(1) (bankruptcy: discharge by order of court)—

a for “section 279(1)(a)” substitute “ section 279(6) ”, and

b for “commencement of the bankruptcy” substitute “ date on which the bankruptcy commences ”.

4 In section 282 (annulment of bankruptcy)—

^F1107a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b omit subsection (5) (previous bankruptcy: disregard of annulled bankruptcy).

5 For section 291(4) (co-operation with official receiver) substitute—

6 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,”.

7 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,”.

8 In section 294(1) (power of creditors to requisition meeting) omit the words—

9 In section 297 (trustee: special cases)—

a omit subsections (2) and (3), and

b in subsection (4) omit the words “but no certificate for the summary administration of the estate is issued”.

10 Omit section 298(3) (removal of trustee: summary administration).

11 In section 300 (trustee: vacancy)—

a omit subsection (5), and

b in subsections (6) and (7) omit the words “or (5)”.

12 In section 354(3) (concealment of property) after “the official receiver” insert “ , the trustee ”.

13 At the end of section 355 (concealment and falsification of records) add—

14 In the following provisions of section 399 (appointment of official receiver) for “or winding up” substitute “ , winding up or individual voluntary arrangement ”

a subsection (1) (twice), and

b subsection (4).

15 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 ”.

1 Schedule 9 (scope of insolvency rules) shall be amended as follows.

2 After paragraph 8 (registration of voluntary arrangements) insert—

3 After paragraph 29 (records) insert—

17 In Schedule 10 (punishment of offences)—

a in the entry for section 31 omit “Undischarged”, and

b omit the entries for sections 361 and 362.

SCHEDULE 24 ¶

Transitional and transitory provisions and savings

Section 276

^F16491 Operation of references to OFT before commencement of section 2(3)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 Pensions etc. of former Directors¶

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—

a such pension, allowance or gratuity shall be paid to or in respect of him on his retirement or death, or

b such contributions or payments shall be paid towards provision for such a pension, allowance or gratuity,

as may be so determined.

^F16493 First financial year of the OFT¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16494 First annual plan of the OFT¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16495 Last annual report of the Director General of Fair Trading¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Effect of transfers under section 2¶

1 In this paragraph—

“commencement” means the commencement of section 2(1);
“transferred” means transferred by section 2(1).

2 Anything which—

a has been done by or in relation to the Director for the purposes of or in connection with anything transferred; and

b is in effect immediately before commencement,

shall be treated as if done by or in relation to the OFT.

3 Anything (including legal proceedings) which—

a relates to anything transferred; and

b is in the process of being done by or in relation to the Director immediately before it is transferred,

may be continued by or in relation to the OFT.

4 Nothing in section 2 or this paragraph affects the validity of anything done by or in relation to the Director before commencement.

7 First President and Registrar of the Competition Appeal Tribunal¶

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.

8 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.

9 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.

10 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.

11 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.

12 Tribunal rules¶

1 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.

2 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.

13 Merger references¶

1 Subject to paragraphs 15 to 18, the old law shall continue to apply where—

a two or more enterprises have ceased to be distinct enterprises (within the meaning of Part 5 of the 1973 Act); and

b the cessation has occurred before the appointed day.

2 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—

a a merger notice was given, and not rejected under section 75B(7) of the 1973 Act or withdrawn, in relation to the arrangements;

b no merger notice was so given but, in relation to the arrangements—

i a reference was made under section 75 of the 1973 Act;

ii undertakings were accepted under section 75G of that Act; or

iii a decision was made by the Secretary of State neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act; or

c a merger notice was so given, was rejected under section 75B(7) of the 1973 Act or withdrawn, paragraph (a) does not apply in relation to a different merger notice given in relation to the arrangements and, in relation to the arrangements, paragraph (b)(i), (ii) or (iii) applies.

3 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.

4 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—

a the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements was, immediately before the appointed day and by virtue of section 75C(1)(c), (e) or (g) of that Act, not prevented;

b the period for considering the merger notice has expired (whether before, on or after the appointed day); and

c no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.

5 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—

a the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements becomes, on or after the appointed day and by virtue of section 75C(1)(b), (c), (d), (e) or (g) of that Act, not prevented;

b the period for considering the merger notice has expired (whether before, on or after the appointed day); and

c no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.

6 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—

a the arrangements were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day;

b before the appointed day and in relation to the arrangements—

i no reference was made under section 75 of the 1973 Act;

ii no undertakings were accepted under section 75G of that Act; and

iii a decision neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act was not made by the Secretary of State; and

c no merger notice was given to the Director or the OFT before that day in relation to the arrangements.

7 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.

8 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.

9 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).

10 In this paragraph—

“the European Merger Regulations” has the meaning given by section 129(1);
“merger notice” means a notice under section 75A(1) of the 1973 Act;
“the new law” means Part 3 of this Act and any related provision of law (including, in particular, any modification made under section 276(2) to that Part or any such provision);
“the old law” means sections 64 to 75K of the 1973 Act and any related provision of law (including, in particular, any modification made under section 276(2) to those sections or any such provision); and
“relevant arrangements” means arrangements which might result in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).

14 Monopoly references¶

1 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.

2 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.

3 In this paragraph—

“monopoly reference” has the meaning given by section 5(3) of the 1973 Act; and
“the old law” means Part 4 of the 1973 Act and any related provision of law (including, in particular, any modification made under section 276(2) to that Part or any such provision).

15 Enforcement undertakings and orders¶

1 Section 94(1) to (6) shall apply in relation to any undertaking—

a accepted (whether before, on or after the appointed day) by a Minister of the Crown—

i in pursuance of a proposal under section 56A of the 1973 Act; or

ii under section 56F, 75G or 88 of that Act; and

b of a description specified in an order made by the Secretary of State under this paragraph;

as it applies in relation to enforcement undertakings under Part 3.

2 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.

2A 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).

3 Compliance with—

a an undertaking accepted by a Minister of the Crown under section 88 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; or

b an 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;

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.

4 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.

5 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.

1 Sub-paragraph (2) applies to any undertaking—

a accepted (whether before, on or after the appointed day) by a Minister of the Crown—

i in pursuance of a proposal under section 56A of the 1973 Act; or

ii under section 56F, 75G or 88 of that Act; and

b of a description specified in an order made by the Secretary of State under this paragraph.

2 An undertaking to which this sub-paragraph applies may be—

a superseded by a new undertaking accepted by the CMA under this paragraph;

b varied by an undertaking accepted by the CMA under this paragraph; or

c released by the CMA.

3 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.

4 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.

5 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—

a in pursuance of a proposal under section 56A of the 1973 Act; or

b under section 56F, 75G or 88 of that Act;

the Minister concerned shall accordingly cease to have the power under that Act to supersede, vary or release the undertaking.

6 The functions of the CMA under this paragraph are to be carried out on its behalf—

a in the case of an undertaking accepted in pursuance of a proposal under section 56A of the 1973 Act or an undertaking under section 56F or 75G of that Act, by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

b in the case of an undertaking accepted under section 88 of that Act, by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

1 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.

2 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.

3 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.

4 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.

5 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.

6 The functions of the CMA under this paragraph are to be carried out on its behalf—

a in the case of an order under sub-paragraph (1), by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, and

b in the case of an order under sub-paragraph (2), by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

1 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.

1A 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).

2 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.

3 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.

19 Paragraphs 13 to 18: supplementary provision¶

^P21 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.

2 An order made by the Secretary of State under paragraph 15, 16 or 17—

a may make different provision for different purposes; and

b shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

20 Designation orders under Schedule 4 to the 1998 Act¶

1 Subject to sub-paragraph (2), the repeals made by section 207 do not affect—

a the operation of Schedule 4 to the 1998 Act in relation to any application for designation of a professional rule which is made before the commencement date;

b the operation of section 3(1)(d) of and Schedule 4 to the 1998 Act in relation to any designation effected by an order made before the commencement date or on an application mentioned in paragraph (a).

2 No designation order (whenever made) shall have any effect in relation to any period of time after the end of the transitional period.

3 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).

4 For the purposes of this paragraph—

“commencement date” means the day on which section 207 comes into force;
“designation” means designation under paragraph 2 of Schedule 4 to the 1998 Act; and
“the transitional period” means the period of three months beginning with the commencement date.

^F141921 Proceedings under Part 3 of the 1973 Act¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Supplementary¶

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.

SCHEDULE 25 ¶

Minor and consequential amendments

Section 278

^I91 Registered Designs Act 1949 (c. 88)¶

1 The Registered Designs Act 1949 is amended as follows.

2 In section 11A(1) (powers exercisable in consequence of report of Competition Commission), paragraphs (a) and (b) shall cease to have effect.

3 After section 11A there is inserted—

11AB Powers exercisable following merger and market investigations

1 Subsection (2) below applies where—

a section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following merger or market investigations) applies;

b the Competition Commission or (as the case may be) the Secretary of State considers that it would be appropriate to make an application under this section for the purpose of remedying, mitigating or preventing a matter which cannot be dealt with under the enactment concerned; and

c the matter concerned involves conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences.

2 The Competition Commission or (as the case may be) the Secretary of State may apply to the registrar to take action under this section.

3 Before making an application the Competition Commission or (as the case may be) the Secretary of State shall publish, in such manner as it or he thinks appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to it or him to be affected.

4 The registrar may, if it appears to him on an application under this section that the application is made in accordance with this section, by order cancel or modify any condition concerned of the kind mentioned in subsection (1)(c) above.

5 An appeal lies from any order of the registrar under this section.

6 References in this section to the Competition Commission shall, in cases where section 75(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading.

7 References in section 35, 36, 47, 63, 134 or 141 of the Enterprise Act 2002 (questions to be decided by the Competition Commission in its reports) to taking action under section 41(2), 55, 66, 138 or 147 shall include references to taking action under subsection (2) above.

8 An order made by virtue of this section in consequence of action under subsection (2) above where an enactment mentioned in subsection (1)(a) above applies shall be treated, for the purposes of sections 91(3), 92(1)(a), 162(1) and 166(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were made under the relevant power in Part 3 or (as the case may be) 4 of that Act to make an enforcement order (within the meaning of the Part concerned).

^I102 Agricultural Marketing Act 1958 (c. 47)¶

1 The Agricultural Marketing Act 1958 is amended as follows.

2 In section 19A (action following report by Commission)—

a for subsection (1) there is substituted—

1 Subsection (2) applies in any of the following cases.

1A The first case is where section 138(2) of the Enterprise Act 2002 (duty to remedy adverse effects following market investigation reference) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

1B The second case is where section 147(2) of the Enterprise Act 2002 (power to remedy adverse effects in public interest cases) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

1C The third case is where—

a a report of the Competition Commission under section 11 of the Competition Act 1980 (c. 21) (references of public bodies etc.), as laid before Parliament, contains conclusions to the effect that—

i certain matters indicated in the report operate against the public interest, and

ii those matters consist of or include any provision of a scheme or any act or omission of a board administering a scheme, and

b none of the conclusions is to be disregarded by virtue of section 11C(3) of that Act (requirement for two-thirds majority).

;

b in subsection (2)—

i the words from the beginning of the subsection to “this section” shall cease to have effect;

ii for the words from “those conclusions” to the end of the subsection there is substituted “ a report of a committee of investigation had contained the conclusion that the provision of the scheme in question, or the act or omission in question, is contrary to the interests of consumers of the regulated product ”;

c after subsection (2) there is inserted—

3 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.

4 In section 47(2) (restrictions on disclosing certain information obtained under Act), in paragraph (aa) of the proviso—

a for “the Director General of Fair Trading or any of the staff appointed by that Director General” there is substituted “ the Office of Fair Trading ”;

b for “the Director General to perform any functions of theirs or his” there is substituted “ the Office of Fair Trading to perform any functions of theirs or its ”;

c at the end there is inserted “ or the Enterprise Act 2002 ”.

3 Public Records Act 1958 (c. 51)¶

1 The Public Records Act 1958 is amended as follows.

2 In Part 2 of the Table at the end of paragraph 3 of Schedule 1 (definition of public records)—

a the entry relating to the Office of the Director General of Fair Trading shall cease to have effect;

b the following entries are inserted at the appropriate places—

4 Superannuation Act 1972 (c. 11)¶

1 The Superannuation Act 1972 is amended as follows.

2 In Schedule 1 (kinds of employment in relation to which pension schemes may be made), in the list of “Other Bodies”, there is inserted at the appropriate place—

^I115 Fair Trading Act 1973 (c. 41)¶

1 The 1973 Act is amended as follows.

2 ^F113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Sections 34 to 42 (additional functions of Director for protection of consumers) shall cease to have effect.

4 In section 93B (false or misleading information)—

a in subsection (1)—

i ^F114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii ^F114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

iii the words “or under the Competition Act 1980” shall cease to have effect;

^F1401b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Consumer Credit Act 1974 (c. 39)¶

1 The Consumer Credit Act 1974 is amended as follows.

2 In section 1 (general functions of Director)—

a in subsection (1)—

i for “the Director General of Fair Trading (“the Director”)” there is substituted “ the Office of Fair Trading (“the OFT”) ”;

ii for “him” there is substituted “ it ”;

iii for “himself” there is substituted “ itself ”;

b in subsection (2)—

i for “Director” there is substituted “ OFT ”;

ii for “him” there is substituted “ it ”;

c in the sidenote, for “Director” there is substituted “ OFT ”;

and in the heading before that section, for “DIRECTOR GENERAL OF FAIR TRADING” there is substituted “ OFFICE OF FAIR TRADING ”.

3 In section 2 (powers of Secretary of State)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsections (1)(b) and (2), for “his” there is substituted “ its ”;

c in subsection (4), for “him” there is substituted “ it ”.

4 In section 4 (dissemination of information and advice)—

a for “Director” there is substituted “ OFT ”;

b for “he”, “him” and “his” there is substituted “ it ”, “ it ” and “ its ” respectively.

5 In section 6 (form etc. of applications)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (3), for “him” there is substituted “ it ”.

6 In section 7 (penalty for false information), for “Director” (in each place) there is substituted “ OFT ”.

7 In section 22 (standard and group licences)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1)(b), for “his” and “he” there is substituted “ its ” and “ it ” respectively;

c in subsection (5), for “him” there is substituted “ it ”.

8 In section 25 (licensee to be a fit person)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (2), for “him” there is substituted “ it ”.

9 In section 27 (determination of applications)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1)—

i for “he” (in both places) there is substituted “ it ”;

ii in paragraph (a), for “his” there is substituted “ its ”;

c in subsection (2), for “him” (in both places) there is substituted “ it ”.

10 In section 28 (exclusion from a group licence)—

a for “Director” (in both places) there is substituted “ OFT ”;

b for “he” there is substituted “ it ”;

c in paragraph (a), for “his” there is substituted “ its ”.

11 In section 29 (renewal)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (2), for “his” there is substituted “ its ”.

12 In section 30 (variation by request)—

a for “Director” and “he” (in each place) there is substituted “ OFT ” and “ it ” respectively;

b in subsection (4)(a), for “his” there is substituted “ its ”.

13 In section 31 (compulsory variation)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “he” (in both places) there is substituted “ it ”;

c in subsection (2)(a), for “his” there is substituted “ its ”;

d in subsection (3), for “he”, “his” and “him” there is substituted respectively “ it ”, “ its ” and “ it ” respectively;

e in subsection (4)(a), for “his” there is substituted “ its ”.

14 In section 32 (suspension and revocation)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “he” (in both places) there is substituted “ it ”;

c in subsection (2)(a), for “his” there is substituted “ its ”;

d in subsection (3), for “he”, “his” and “him” there is substituted “ it ”, “ its ” and “ it ” respectively;

e in subsection (4)(a), for “his” there is substituted “ its ”;

f in subsection (5), for “he” there is substituted “ it ”;

g in subsection (8), for “him” there is substituted “ it ”.

15 In section 33 (application to end suspension)—

a for “Director” and “he” (in each place) there is substituted “ OFT ” and “ it ” respectively;

b in subsection (2)(a), for “his” there is substituted “ its ”.

16 In section 34 (representations to Director)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsections (2) and (3), for “his” there is substituted “ its ”.

17 In section 35 (the register)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsections (1) and (4), for “he” there is substituted “ it ”;

c in subsection (1)(c), for “him” there is substituted “ it ”.

18 In section 36 (duty to notify changes)—

a for “Director” (in each place) there is substituted “ OFT ”;

b ^F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 In section 39 (offences against Part 3), for “Director” there is substituted “ OFT ”.

20 In section 40 (enforcement of agreements made by unlicensed trader)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (3)—

i for “he” (in both places) there is substituted “ it ”;

ii in paragraph (a), for “his” there is substituted “ its ”;

c in subsection (5), for “he” there is substituted “ it ”.

21 In section 41 (appeals to Secretary of State under Part 3), in subsection (1), for “Director” there is substituted “ OFT ”.

22 In section 49 (prohibition of canvassing debtor-creditor agreements off trade premises), for “Director” (in each place) there is substituted “ OFT ”.

23 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.

24 In section 64 (duty to give notice of cancellation rights), for “Director” (in each place) there is substituted “ OFT ”.

25 In section 74 (exclusion of certain agreements from Part 5)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (3A), for “he” there is substituted “ it ”.

26 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.

27 In section 113 (Act not to be evaded by use of security), in subsection (2), for “Director” there is substituted “ OFT ”.

28 In section 148 (agreement for services of unlicensed trader)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (3)—

i for “he” (in both places) there is substituted “ it ”;

ii in paragraph (a), for “his” there is substituted “ its ”;

c in subsection (5), for “he” there is substituted “ it ”.

29 In section 149 (regulated agreements made on introductions by unlicensed credit-broker)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (3)—

i for “he” (in both places) there is substituted “ it ”;

ii in paragraph (a), for “his” there is substituted “ its ”;

c in subsection (5), for “he” there is substituted “ it ”.

30 In section 159 (correction of wrong information), for “Director” there is substituted “ OFT ”.

31 In section 160 (alternative procedure for business consumers)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “he” there is substituted “ it ”.

32 In section 161 (enforcement authorities)—

a for “Director” (in each place) there is substituted “ OFT ”;

b subsection (2) (requirement to notify Director of intended prosecution) is omitted;

c in subsection (3), for “he” and “him” there is substituted “ it ”.

33 In section 162 (powers of entry and inspection), in subsection (5), for “Director” there is substituted “ OFT ”.

34 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.

35 In section 170 (no further sanctions for breach of Act), for “his”, “Director” and “him” there is substituted “ its ”, “ OFT ” and “ it ” respectively.

36 In section 173 (contracting-out forbidden), in subsection (3), for “Director” there is substituted “ OFT ”.

37 In section 183 (determinations etc. by Director), for “Director” (in both places) and “him” there is substituted “ OFT ” and “ it ” respectively.

38 In section 189 (general interpretation provisions)—

a in subsection (1)—

i the definition of “Director” shall cease to have effect;

ii in the definition of “general notice”, for “Director” and “him” there is substituted “ OFT ” and “ it ” respectively;

iii after the definition of “notice of cancellation” there is inserted—

;

iv in the definition of “register”, for “Director” there is substituted “ OFT ”;

b in subsection (5), for “Director” (in both places) there is substituted “ OFT ”.

39 In section 191 (special provisions as to Northern Ireland)—

a for “Director” (in both places) there is substituted “ OFT ”;

b in subsection (1), for “his” and “him” there is substituted “ the OFT’s ” and “ the OFT ” respectively.

40 In Schedule 1 (prosecution and punishment of offences), in the entry relating to section 7, for “Director” there is substituted “ OFT ”.

^F15197 Restrictive Practices Court Act 1976 (c. 33)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I128 Patents Act 1977 (c. 37)¶

1 The Patents Act 1977 is amended as follows.

2 After section 50 there is inserted—

50A Powers exercisable following merger and market investigations

1 Subsection (2) below applies where—

c the matter concerned involves—

i conditions in licences granted under a patent by its proprietor restricting the use of the invention by the licensee or the right of the proprietor to grant other licences; or

ii a refusal by the proprietor of a patent to grant licences on reasonable terms.

2 The Competition Commission or (as the case may be) the Secretary of State may apply to the comptroller to take action under this section.

4 The comptroller may, if it appears to him on an application under this section that the application is made in accordance with this section, by order cancel or modify any condition concerned of the kind mentioned in subsection (1)(c)(i) above or may, instead or in addition, make an entry in the register to the effect that licences under the patent are to be available as of right.

5 References in this section to the Competition Commission shall, in cases where section 75(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading.

6 References in section 35, 36, 47, 63, 134 or 141 of the Enterprise Act 2002 (questions to be decided by the Competition Commission in its reports) to taking action under section 41(2), 55, 66, 138 or 147 shall include references to taking action under subsection (2) above.

7 Action taken by virtue of subsection (4) above in consequence of an application under subsection (2) above where an enactment mentioned in subsection (1)(a) above applies shall be treated, for the purposes of sections 91(3), 92(1)(a), 162(1) and 166(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were the making of an enforcement order (within the meaning of the Part concerned) under the relevant power in Part 3 or (as the case may be) 4 of that Act.

3 In section 51(1) (powers exercisable in consequence of report of Competition Commission), paragraphs (a) and (b) shall cease to have effect.

4 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 ”.

9 Estate Agents Act 1979 (c. 38)¶

1 The Estate Agents Act 1979 is amended as follows.

2 In section 3 (orders prohibiting unfit persons from doing estate agency work)—

a in subsection (1), for “the Director General of Fair Trading (in this Act referred to as “the Director”)” there is substituted “ the Office of Fair Trading (in this Act referred to as “the OFT”) ”;

b for “Director” (in each place) there is substituted “ OFT ”;

c in subsection (2), for “he” there is substituted “ it ”;

d in subsections (4) and (5), for “he” (in each place) and “him” there is substituted “ it ”;

and in the cross-heading before that section, for “Director General of Fair Trading” there is substituted “ Office of Fair Trading ”.

3 In section 4 (warning orders)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “he” there is substituted “ it ”.

4 In section 5 (supplementary provisions as to orders under sections 3 and 4), for “Director” (in each place) there is substituted “ OFT ”.

5 In section 6 (revocation and variation of orders under sections 3 and 4)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “him” there is substituted “ it ”;

c in subsections (3) to (5), for “he” (in each place) there is substituted “ it ”;

d in subsection (3), for “his” there is substituted “ its ”.

6 In section 7 (appeals), in subsection (1), for “Director” (in both places) there is substituted “ OFT ”.

7 In section 8 (register of orders etc.)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “him” and “his” there is substituted “ it ” and “ its ” respectively;

c in subsection (3), for “his” there is substituted “ its ”;

d in subsection (4), for “he” there is substituted “ it ”;

e in subsection (5), for “him” there is substituted “ it ”.

8 In section 9 (information for the Director)—

a for “Director” (in each place) there is substituted “ OFT ”;

^F1187b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 In—

^F700a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b section 13 (clients’ money held on trust or as agent), and

c section 15 (interest on clients’ money),

for “Director” there is substituted “ OFT ”.

10 In section 17 (exemptions from section 16)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “he” and “him” there is substituted “ it ”;

c in subsection (5), for “he” and “his” (in both places) there is substituted “ it ” and “ its ” respectively.

11 In—

a section 19 (regulation of pre-contract deposits outside Scotland),

b section 20 (regulation of pre-contract deposits in Scotland), and

c section 21 (transactions in which an estate agent has a personal interest),

for “Director” there is substituted “ OFT ”.

12 In section 25 (general duties of Director)—

a for “Director” (in each place) there is substituted “ OFT ”;

b in subsection (1), for “himself” there is substituted “ itself ”;

c in subsections (2) and (3), for “him” there is substituted “ it ”;

d in subsection (3), for “he” there is substituted “ it ”.

13 In section 26 (enforcement authorities)—

a for “Director” (in each place) there is substituted “ OFT ”;

b subsection (2) (requirement to notify Director of intended prosecution) is omitted;

c in subsection (4), for “him” and “he” there is substituted “ it ”.

14 In—

a section 29 (service of notices etc.), and

b section 30 (orders and regulations),

for “Director” (in each place) there is substituted “ OFT ”.

15 In section 33 (general interpretation provisions)—

a the definition of “Director” shall cease to have effect;

b in the definition of “general notice”, for “Director” and “him” there is substituted “ OFT ” and “ it ” respectively;

c after the definition of “general notice” there is inserted—

16 In Schedule 2 (procedure etc.)—

a for “Director” and “Director’s” (in each place) there is substituted “ OFT ” and “ OFT’s ”;

b in paragraph 1, for “his” and “he” there is substituted “ its ” and “ it ” respectively;

c in paragraphs 3 and 5, for “he” there is substituted “ it ”;

d in paragraph 6, for “his” (in both places) and “he” (in both places) there is substituted “ its ” and “ it ” respectively;

e in paragraph 7, for “his” and “he” there is substituted “ its ” and “ it ” respectively;

f in paragraph 8, for “his”, “he” (in both places) and “him” there is substituted “ its ”, “ it ” and “ it ” respectively;

g in paragraph 9(1), for “his” (in both places) there is substituted “ its ”;

h in paragraph 10(2), for “he” there is substituted “ it ”.

10 Competition Act 1980 (c. 21)¶

1 The Competition Act 1980 is amended as follows.

2 In section 11 (references of public bodies and certain other persons to the Commission)—

a in subsection (1)—

i at the end of paragraph (a) there is inserted “ or ”;

ii paragraph (c) and the word “or” before it shall cease to have effect;

iii for “paragraph (a), (b) or (c)” there is substituted “ paragraph (a) or (b) ”;

b subsections (2), (9) and (9A) shall cease to have effect.

3 After section 11 there is inserted—

11A References under section 11: time-limits

1 Every reference under section 11 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

2 A report of the Commission on a reference under section 11 above shall not have effect (and no action shall be taken in relation to it under section 12 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Secretary of State under subsection (3) below.

3 The Secretary of State may, if he has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than three months.

4 No more than one extension is possible under subsection (3) above in relation to the same reference.

5 The Secretary of State shall publish any extension made by him under subsection (3) above in such manner as he considers most suitable for bringing it to the attention of persons who in his opinion would be affected by it or be likely to have an interest in it.

11B References under section 11: powers of investigation and penalties

1 The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 11 above as they apply for the purposes of references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116(statement of policy).

2 Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

a subsection (2) were omitted;

b in subsection (4), for the word “publication” there were substituted “laying before both Houses of Parliament”; and

c in subsection (9) the words from “or section” to “section 65(3))” were omitted.

3 Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

a for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

b for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

c the words “by this Part” were omitted.

11C References under section 11: further supplementary provisions

1 Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions under this Act as it applies in relation to functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT,” were omitted.

2 Section 125 of the Enterprise Act 2002 (offences by bodies corporate) shall apply for the purposes of this Act as it applies for the purposes of Part 3 of that Act.

3 For the purposes of section 12 below, a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

11D Interim orders

1 Subsection (2) below applies where, in the circumstances specified in subsection (1) of section 12 below, the Secretary of State has under consideration the making of an order under subsection (5) of that section.

2 The Secretary of State may by order, for the purpose of preventing pre-emptive action—

a prohibit or restrict the doing of things which the Secretary of State considers would constitute pre-emptive action;

b impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

d do anything which may be done by virtue of paragraph 19 of Schedule 8 to the Enterprise Act 2002 (information powers).

3 An order under this section shall come into force at such time as is determined by or under the order.

4 An order under this section shall, if it has not previously ceased to be in force, cease to be in force on the making of the order under section 12(5) below or (as the case may be) on the making of the decision not to make such an order.

5 The Secretary of State shall publish any decision made by him not to make an order under section 12(5) below in such manner as he considers most suitable for bringing it to the attention of persons who in his opinion would be affected by it or be likely to have an interest in it.

6 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 section.

7 The following provisions of Part 3 of the Enterprise Act 2002 shall apply in relation to orders under this section as they apply in relation to orders under paragraph 2 of Schedule 7 to that Act—

a section 86(2) and (3) (enforcement orders: general provisions);

b section 87 (delegated power of directions); and

c section 94(1) to (5), (8) and (9) (rights to enforce orders).

8 In this section “pre-emptive action” means action which might impede the making of an order under section 12(5) below.

4 In section 12 (orders following report under section 11)—

a in subsection (5) for the words from “by order” to the end there is substituted “ make an order under this subsection ”;

b after subsection (5) there is inserted—

;

c for subsection (6) there is substituted—

6 The following provisions of Part 3 of the Enterprise Act 2002 shall apply in relation to orders under subsection (5) above as they apply in relation to orders under paragraph 11 of Schedule 7 to that Act—

a section 86(2) and (3) (enforcement orders: general provisions);

b section 87 (delegated power of directions);

c section 88 (contents of certain enforcement orders);

d section 94(1) to (5), (8) and (9) (rights to enforce orders); and

e Schedule 10 (procedural requirements for orders).

7 The Secretary of State shall publish any decision made by him to dispense with the requirements of Schedule 10 to the Enterprise Act 2002 as applied by subsection (6) above; and shall do so in such manner as he considers most suitable for bringing the decision to the attention of persons who in his opinion would be affected by it or be likely to have an interest in it.

5 In section 16 (general provision as to reports)—

a subsection (1) shall cease to have effect;

b in subsection (2) the words “or of the Director” shall cease to have effect.

6 In section 17 (laying before Parliament and publication of reports)—

a in subsections (1), (3) and (4), the words “or 13(5)” shall cease to have effect;

b in subsection (4), for the words “against the public interest” there is substituted “ inappropriate ”;

c for subsection (5) there is substituted—

7 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.

8 In section 31 (orders and regulations)—

a in subsection (1) the words “or regulations” shall cease to have effect;

b in subsection (3)—

i the words “regulations under this Act or” shall cease to have effect;

ii after “11(4)” there is inserted “ , 11D ”;

iii after “above” there is inserted “ , or section 111(4) or (6) or 114(3)(b) or (4)(b) of the Enterprise Act 2002 as applied by section 11B(1)(c) or (f) above, ”;

c subsection (4) shall cease to have effect;

d after subsection (4) there is inserted—

9 In section 33 (interpretation), for subsection (2) there is substituted—

10 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.

11 Civil Aviation Act 1982 (c. 16)¶

1 The Civil Aviation Act 1982 is amended as follows.

2 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 ”.

12 Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))¶

1 The Agricultural Marketing (Northern Ireland) Order 1982 is amended as follows.

2 For article 23 (action following report by Commission) there is substituted—

23 Action following report by Competition Commission

1 Paragraph (5) applies in any of the following cases.

2 The first case is where section 138(2) of the Enterprise Act 2002 (duty to remedy adverse effects following market investigation reference) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

3 The second case is where section 147(2) of the Enterprise Act 2002 (power to remedy adverse effects in public interest cases) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

4 The third case is where—

a a report of the Competition Commission under section 11 of the Competition Act 1980 (c. 21) (references of public bodies etc.), as laid before Parliament, contains conclusions to the effect that—

i certain matters indicated in the report operate against the public interest, and

ii those matters consist of or include any provision of a scheme or any act or omission of a board administering a scheme, and

b none of the conclusions is to be disregarded by virtue of section 11C(3) of that Act (requirement for two-thirds majority).

5 The Department shall have the like power to make orders under Article 22 as if a report of a committee of investigation had contained the conclusion that the provision of the scheme in question, or the act or omission in question, is contrary to the interests of consumers of the regulated product.

6 An order made by virtue of this Article in a case falling within paragraph (2) or (3) shall be treated, for the purposes of sections 162(1) and 166(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were made under the relevant power in Part 4 of that Act to make an enforcement order (within the meaning of that Part).

3 In article 42 (action following report by Commission)—

a for paragraph (1) there is substituted—

1 Paragraph (1D) applies in any of the following cases.

1C The third case is where—

a a report of the Competition Commission under section 11 of the Competition Act 1980 (c. 21) (references of public bodies etc.), as laid before Parliament, contains conclusions to the effect that—

i certain matters indicated in the report operate against the public interest, and

ii those matters consist of or include any provision of a scheme or any act or omission of a board administering a scheme, and

b none of the conclusions is to be disregarded by virtue of section 11C(3) of that Act (requirement for two-thirds majority).

1D The Department, if it thinks fit so to do—

a may by order make such amendments in the scheme as it considers necessary or expedient for the purpose of rectifying the matter;

b may by order revoke the scheme;

c in the event of the matter being one which it is within the power of the board to rectify, may by order direct the board to take such steps to rectify the matter as may be specified in the order, and thereupon it shall be the duty of the board forthwith to comply with the order.

;

b in paragraph (2) for “paragraph (1)” there is substituted “ paragraph (1D) ”;

c in paragraph (3) for “paragraph (1)(b)(iii)” there is substituted “ paragraph (1D)(c) ”;

d in paragraph (5)—

i for “paragraph (1)(i) or (iii)” there is substituted “ paragraph (1D)(a) or (c) ”;

ii for “paragraph (1)(ii)” there is substituted “ paragraph (1D)(b) ”;

e after paragraph (5) there is inserted—

^I1313 Telecommunications Act 1984 (c. 12)¶

1 The Telecommunications Act 1984 is amended as follows.

2 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 ”.

3 In section 13 (licence modification references to Commission), subsections (9) and (9A) shall cease to have effect.

4 After section 13 there is inserted—

13A References under section 13: time limits

1 Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

2 A report of the Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under subsection (3) below.

3 The Director may, if he has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

4 No more than one extension is possible under subsection (3) above in relation to the same reference.

5 The Director shall, in the case of an extension made by him under subsection (3) above—

a publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

b in the case of a licence granted to a particular person, send to that person a copy of what has been published by him under paragraph (a) above.

13B References under section 13: powers of investigation

1 The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116 (statement of policy).

2 Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

a subsection (2) were omitted; and

b in subsection (9) the words from “or section” to “section 65(3))” were omitted.

3 Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

a for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

b for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

c the words “by this Part” were omitted.

4 Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.

5 Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

5 In section 14 (reports on licence modification references)—

a after subsection (1) there is inserted—

;

b for subsection (3) there is substituted—

3 For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under section 13 above.

3A In making any report on a reference under section 13 above the Commission must have regard to the following considerations before disclosing any information.

3B The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

3C The second consideration is the need to exclude from disclosure (so far as practicable)—

a commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

b information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

3D The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) is necessary for the purposes of the report.

6 In section 47 (general functions), in subsection (4)—

a for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

b for “that Director” there is substituted “ the Office of Fair Trading ”.

7 In section 48 (publication of information and advice), after subsection (3) there is inserted—

8 In section 50 (functions under 1973 and 1980 Acts)—

a subsection (1) shall cease to have effect;

b in subsection (3)—

i for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

ii for “that Director” there is substituted “ the Office of Fair Trading ”;

c in subsection (3A), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

d in subsection (6), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”.

9 In section 101 (general restrictions on disclosure of information)—

a in subsection (2)(b), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

b in subsection (3), after paragraph (o) there is inserted—

;

c in subsection (6)—

i for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

ii for “sections 55 and 56 of that Act (disclosure)” there is substituted “ Part 9 of the Enterprise Act 2002 (Information) ”.

10 In section 103 (time limits for summary proceedings)—

a that section shall be renumbered as subsection (1) of that section;

b after that subsection there is inserted—

^I1414 Airports Act 1986 (c. 31)¶

1 The Airports Act 1986 is amended as follows.

2 In section 44 (supplementary provisions relating to references to Commission), subsections (3) and (3A) shall cease to have effect.

^F17363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F17364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F17365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 In section 74 (restriction on disclosure of information)—

a in subsection (2), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

b in subsection (3), at the end there is inserted—

^I1515 Gas Act 1986 (c. 44)¶

1 The Gas Act 1986 is amended as follows.

2 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 ”.

3 In section 24 (licence modification references to Commission)—

a subsections (7) and (7A) shall cease to have effect;

b in subsection (8), after “sections” there is inserted “ 24A, ”.

4 After section 24 there is inserted—

24A References under section 24: time limits

1 Every reference under section 24 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

2 A report of the Competition Commission on a reference under section 24 above shall not have effect (and no action shall be taken in relation to it under section 26 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

3 The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

4 No more than one extension is possible under subsection (3) above in relation to the same reference.

5 The Authority shall, in the case of an extension made by it under subsection (3) above—

a publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

b send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

24B References under section 24: powers of investigation

1 The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 24 above as they apply for the purposes of references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116 (statement of policy).

2 Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

a subsection (2) were omitted; and

b in subsection (9) the words from “or section” to “section 65(3))” were omitted.

3 Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

a for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

b for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

c the words “by this Part” were omitted.

5 Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

5 In section 25 (reports on licence modification references)—

a after subsection (1) there is inserted—

;

b for subsection (3) there is substituted—

3 For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 24 above.

3A In making any report on a reference under section 24 above the Competition Commission must have regard to the following considerations before disclosing any information.

3B The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

3C The second consideration is the need to exclude from disclosure (so far as practicable)—

a commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

b information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

3D The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.

6 In section 26A (Commission’s power to veto modifications following report)—

a after subsection (11) there is inserted—

11A For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8).

11B In giving any notice under subsection (4)(a) or (6), or publishing any notice under subsection (8), the Commission must have regard to the following considerations before disclosing any information.

11C The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

11D The second consideration is the need to exclude from disclosure (so far as practicable)—

a commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

b information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

11E The third consideration is the extent to which the disclosure of the information mentioned in subsection (11D)(a) or (b) is necessary for the purposes of the notice.

11F The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (11G) and (11H), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this section, as they apply for the purposes of any investigation on references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116 (statement of policy).

11G Section 110 shall, in its application by virtue of subsection (11F), have effect as if—

a subsection (2) were omitted;

b in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “the publication by the Commission of a notice under section 26A(8) of the Gas Act 1986 in connection with the reference concerned or, if no direction has been given by the Commission under section 26A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period”; and

c in subsection (9) the words from “or section” to “section 65(3))” were omitted.

11H Section 111(5)(b) shall, in its application by virtue of subsection (11F), have effect as if for sub-paragraph (ii) there were substituted—

“ if earlier, the day on which a notice is published by the Commission under section 26A(8) of the Gas Act 1986 in connection with the reference concerned or, if no direction is given by the Commission under section 26A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. ”.

11I Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (11F) above, have effect in relation to those sections as applied by virtue of that subsection.

11J Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

;

b subsections (12) and (13) shall cease to have effect.

^F5197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 In section 34 (general functions), in subsection (4)—

a for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”; and

b for “that Director” there is substituted “ the Office of Fair Trading ”.

9 In section 35 (publication of information and advice), after subsection (3) there is inserted—

10 In section 36A (functions with respect to competition)—

a subsection (1) shall cease to have effect;

b in subsection (3), for “the Director General of Fair Trading, the functions of that Director” there is substituted “ the Office of Fair Trading, the functions of the Office of Fair Trading ”;

c in subsection (3A), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”;

d in subsection (7), for “the Director General of Fair Trading” there is substituted “ the Office of Fair Trading ”.

11 In section 41E (references to Commission about activities which are not licensable), subsections (7) and (8) shall cease to have effect.

12 After section 41E there is inserted—

41EA References under section 41E: time limits

1 Every reference under section 41E above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

2 A report of the Competition Commission on a reference under section 41E above shall not have effect (in particular for the purposes of section 41D(5) above) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

4 No more than one extension is possible under subsection (3) above in relation to the same reference.

5 The Authority shall publish an extension under subsection (3) above in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

41EB References under section 41E: application of Enterprise Act 2002

1 The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 41E above as they apply for the purposes of references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116 (statement of policy).

2 Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

a subsection (2) were omitted; and

b in subsection (9) the words from “or section” to “section 65(3))” were omitted.

3 Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

a for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

b for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

c the words “by this Part” were omitted.

4 Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 41E above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT,” and “or the Secretary of State” were omitted.

5 Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by virtue of those subsections.

6 Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.

13 In section 41F (reports on references under section 41E)—

a after subsection (3) there is inserted—

;

b for subsection (4) there is substituted—

4 For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 41E.

4A In making any report on a reference under section 41E the Competition Commission must have regard to the following considerations before disclosing any information.

4B The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

4C The second consideration is the need to exclude from disclosure (so far as practicable)—

a commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

b information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

4D The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report.

14 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 ”.

^F95216 Consumer Protection Act 1987 (c. 43)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F148817 Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20))¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 The Copyright, Designs and Patents Act 1988 is amended as follows.

2 In section 144 (powers exercisable in consequence of report of Commission) for subsections (1) and (2) there is substituted—

1 Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Office of Fair Trading or (as the case may be) the Competition Commission under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations) consists of or includes—

a conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences; or

b a refusal of a copyright owner to grant licences on reasonable terms.

1A The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.

2 The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and insections 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.

3 In section 144(3)—

a for “A Minister” there is substituted “ The Secretary of State, the Office of Fair Trading or (as the case may be) the Competition Commission ”;

b after “he” there is inserted “ or it ”.

4 In section 238 (powers exercisable for protection of the public interest), for subsections (1) and (2) there is substituted—

1 Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes—

a conditions in licences granted by a design right owner restricting the use of the design by the licensee or the right of the design right owner to grant other licences, or

b a refusal of a design right owner to grant licences on reasonable terms.

2 The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.

5 In Schedule 2A, in paragraph 17 (powers exercisable in consequence of competition report)—

a for sub-paragraphs (1) and (2) there is substituted—

1 Sub-paragraph (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes—

a conditions in licences granted by the owner of a performer’s property rights restricting the use to which a recording may be put by the licensee or the right of the owner to grant other licenses, or

b a refusal of an owner of a performer’s property rights to grant licences on reasonable terms.

2 The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7to, the Act of 2002 shall be construed accordingly.

;

b in sub-paragraph (3)—

i for “A Minister” there is substituted “ The Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading ”;

ii after “he” there is inserted “ or it ”.

19 Water Act 1989 (c. 15)¶

1 The Water Act 1989 is amended as follows.

2 In section 174 (general restrictions on disclosure of information)—

a in subsection (2)(d), for sub-paragraph (ii) there is substituted—

b in subsection (3), after paragraph (lm) there is inserted—

^I1720 Electricity Act 1989 (c. 29)¶

1 The Electricity Act 1989 is amended as follows.

2 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 ”.

3 In section 12 (licence modification references to Commission)—

a in subsection (6A), after “sections” there is inserted “ 12A, ”;

b subsections (8) and (8A)shall cease to have effect.

4 After section 12 there is inserted—

12A References under section 12: time limits

1 Every reference under section 12 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

2 A report of the Competition Commission on a reference under section 12 above shall not have effect (and no action shall be taken in relation to it under section 14 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

4 No more than one extension is possible under subsection (3) above in relation to the same reference.

5 The Authority shall, in the case of an extension made by it under subsection (3) above—

a publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

b send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

12B References under section 12: powers of investigation

1 The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 12 above as they apply for the purposes of references under that Part—

a section 109 (attendance of witnesses and production of documents etc.);

b section 110 (enforcement of powers under section 109: general);

c section 111 (penalties);

d section 112 (penalties: main procedural requirements);

e section 113 (payments and interest by instalments);

f section 114 (appeals in relation to penalties);

g section 115 (recovery of penalties); and

h section 116 (statement of policy).

2 Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

a subsection (2) were omitted; and

b in subsection (9) the words from “or section” to “section 65(3))” were omitted.

3 Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

a for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

b for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

c the words “by this Part” were omitted.

5 Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

5 In section 13 (reports on licence modification references)—

a after subsection (1) there is inserted—

;

b for subsection (3) there is substituted—

3 For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12 above.

3A In making any report on a reference under section 12 above the Competition Commission must have regard to the following considerations before disclosing any information.

3B The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

3C The second consideration is the need to exclude from disclosure (so far as practicable)—

a commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

b information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

3D The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.

6 In section 14A (Commission’s power to veto modifications following report)—