Enterprise Act 2002

• (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 ... 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 ... 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 ... order shall, so far as applicable, continue in force as if—

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

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

and the ... order concerned may be varied... 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.

Investigations and reports on references under section 62

65

• (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.

Decision and enforcement action by Secretary of State

66

• (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.

...

Intervention to protect legitimate interests

67

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Scheme for protecting legitimate interests

68

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Other

Newspaper mergers

69

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Water mergers

70

• (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) 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) (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) The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises. (35) (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 4 — Enforcement

Powers exercisable before references under section 22, 33, 68B or 68C

Initial undertakings: completed mergers

71

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Initial enforcement orders: completed mergers

72

• (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.

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

• (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.

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

• (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 ... —

• (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.

Undertakings in lieu of references under section 22 or 33

73

• (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.

Effect of undertakings under section 73

74

• (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.

Order-making power where undertakings under section 73 not fulfilled etc.

75

• (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—

• (a) 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.

Supplementary interim order-making power

76

• (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;

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

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

• (5) An order under this 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

Restrictions on certain dealings: completed mergers

77

• (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 ... 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.

Restrictions on certain share dealings: anticipated mergers

78

• (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— any person who carries on any enterprise to which the reference relates or who has control of any such enterprise; any subsidiary of any person falling within paragraph (a); or any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and

• “share” means share in the capital of a company, and includes stock.

Sections 77 and 78: further interpretation provisions

79

• (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.

Interim undertakings

80

• (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.

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

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

• (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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

Interim orders

81

• (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;

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

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

• (2A) 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.

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

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

• (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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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

Final undertakings

82

• (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.

Order-making power where final undertakings not fulfilled

83

• (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

• (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 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—

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

Final orders

84

• (1) The CMA may, in accordance with section 41, make an order under this section.

• (2) An order under this section may contain—

• (a) 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.

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

• (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

Enforcement regime for public interest and special public interest cases

85

• (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

Enforcement orders: general provisions

86

• (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.

• (2) 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.

• (3) 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.

Delegated power of directions

87

• (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.

Contents of certain enforcement orders

88

• (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.

Subject-matter of undertakings

89

• (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.

• (1) 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 ... 73, 80 or 82 or under paragraph ... 3 or 9 of Schedule 7.

• (3) In this section, “appropriate authority” has the same meaning as in section 94AA.

Procedural requirements for certain undertakings and orders

90

Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.

Register of undertakings and orders

91

• (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.

• (3) 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

Duty of OFT to monitor undertakings and orders

92

• (1) The CMA shall keep under review—

• (a) 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 ... the Secretary of State such advice as it considers appropriate in relation to—

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

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

• (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;

• (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—

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

• (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.

Further role of OFT in relation to undertakings and orders

93

• (1) Subsections (2) and (3) apply where—

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

• (b) the Secretary of State is considering whether to accept undertakings under paragraph ...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 ... paragraph ... 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 ... paragraph ... 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

Rights to enforce undertakings and orders

94

• (1) This section applies to any enforcement undertaking or enforcement order.

• (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 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.

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

• (8) Compliance with an undertaking under paragraph ... 3 or 9 of Schedule 7, an order made by the Secretary of State under section 70C(2), paragraph 2 of Schedule 7 or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

• (9) 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.

Rights to enforce statutory restrictions

95

• (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.

Chapter 5 — Supplementary

Merger notices

Merger notices

96

• (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.

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

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

• (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.

Period for considering merger notices

97

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

Section 97: supplementary

98

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

Certain functions of OFT and Secretary of State in relation to merger notices

99

• (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.

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

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

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

• (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; ...

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

• (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.

Exceptions to protection given by merger notices

100

• (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);

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 ...;

• (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.

Merger notices: regulations

101

• (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 ... 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;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Power to modify sections 97 to 101

102

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

Duty of expedition in relation to references

103

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

Certain duties of relevant authorities to consult

104

• (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— in the case of the CMA, any decision by the CMA— 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 to vary under section 37 a reference under section 22, 33, 68B or 68C ; or on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63; ... in the case of the Secretary of State, any decision by the Secretary of State— as to whether to make a reference under section 45 or 62; or 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.

Information and publicity requirements

General information duties of OFT and Commission

105

• (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 ... OFCOM—

• (a) such information in its possession as ...OFCOM may reasonably require to enable the ...OFCOM to carry out its functions under this Part; and

• (b) any other assistance which the ... OFCOM may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the CMA to give.

• (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 ... OFCOM but which, in the opinion of the CMA, would be appropriate to give to the ... OFCOM for the purpose of assisting it in carrying out its functions under this Part.

• (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).