Legalize / United Kingdom / Public General Act

Enterprise Act 2002

Type Public General Act

Publication 2002-11-07

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(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

(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.

141A

(1) This section applies where the Secretary of State makes a full 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.

(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))—

(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 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.

(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

(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.

Power to vary etc undertakings and orders: implementation trials

143A

(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).

General information duties

146A

(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

(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.

147A

(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.

148A

(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.

Extra-territorial application of notices under section 174

Full PI references: publication etc of reports of CMA

188B

(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.

190A

(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

Interpretation

Abolition of Crown preference

Criminal proceedings

Unsecured creditors

Overseas disclosures for overseas purposes only

Disqualification from office: general

Minor and consequential amendments

Decisions of the Tribunal

Chairman of Service

Exclusion of public consumer advice scheme

Insolvency Services Account: interest

Introduction

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Magistrates’ Courts Act 1980 (c. 43)

Insolvency Act 1986 (c. 45)

Employment Rights Act 1996 (c. 18)

Patents Act 1977 (c. 37)

Estate Agents Act 1979 (c. 38)

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

Civil Aviation Act 1982 (c. 16)

Telecommunications Act 1984 (c. 12)

Gas Act 1986 (c. 44)

Airports Act 1986 (c. 31)

Courts and Legal Services Act 1990 (c. 41)

Osteopaths Act 1993 (c. 21)

Chiropractors Act 1994 (c. 17)

Duty to make references in relation to completed mergers

Competition Act 1998 (c. 41)

Data Protection Act 1998 (c. 29)

Water Industry Act 1991 (c. 56)

Transport Act 2000 (c. 38)

9F

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.

Third party appeals

Estate Agents Act 1979 (c. 38)

Postal Services Act 2000 (c. 26)

Telecommunications Act 1984 (c. 12)

Airports Act 1986 (c. 31)

Electricity Act 1989 (c. 29)

Broadcasting Act 1990 (c. 42)

Broadcasting Act 1996 (c. 55)

Data Protection Act 1998 (c. 29)

Financial Services and Markets Act 2000 (c. 8)

Transport Act 2000 (c. 38)

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219A

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219B

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219C

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223A

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Interpretation

Replacement of Part II of Insolvency Act 1986

Special administration regimes

Fees

Insolvency Services Accounts

Provision of financial assistance for consumer purposes

1A

(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;

15A

(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

(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

(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.

20A

(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

(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

(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).

21A

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.

General restrictions on conduct

Electricity Act 1989 (c. 29)

Water Industry Act 1991 (c. 56)

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Insolvency Act 1986 (c. 45)

Coal Industry Act 1994 (c. 21)

Employment Rights Act 1996 (c. 18)

Agricultural Marketing Act 1958 (c. 47)

Estate Agents Act 1979 (c. 38)

Broadcasting Act 1990 (c. 42)

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

Telecommunications Act 1984 (c. 12)

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

Railways Act 1993 (c. 43)

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

Competition Act 1998 (c. 41)

Financial Services and Markets Act 2000 (c. 8)

Postal Services Act 2000 (c. 26)

Transport Act 2000 (c. 38)

15

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14

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16

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23A

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Fees

Pre-emptive undertakings and orders

Airports Act 1986 (c. 31)

Gas Act 1986 (c. 44)

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Joint arrangements

The Competition Appeal Tribunal

Employment Rights Act 1996 (c. 18)

Financial Services and Markets Act 2000 (c. 8)

Agricultural Marketing Act 1958 (c. 47)

Patents Act 1977 (c. 37)

Estate Agents Act 1979 (c. 38)

Gas Act 1986 (c. 44)

Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))

Gas Act 1986 (c. 44)

Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20))

Companies Act 1989 (c. 40)

Broadcasting Act 1990 (c. 42)

Water Industry Act 1991 (c. 56)

Osteopaths Act 1993 (c. 21)

Railways Act 1993 (c. 43)

Broadcasting Act 1996 (c. 55)

Competition Act 1998 (c. 41)

Postal Services Act 2000 (c. 26)

Transport Act 2000 (c. 38)

9G

Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market.

Online interface orders and interim online interface orders

218ZA

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218ZB

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218ZC

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218ZD

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Enforcement procedure: supplementary

Interpretation

Statutory restrictions following reference under section 45 or 62

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

Water Industry Act 1991 (c. 56)

Transport Act 2000 (c. 38)

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9CA

Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

9DA

Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations.

9EA

Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004.

9EB

Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004.

9FA

Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market.

12A

Articles 1, 2(c) and 4 to 8 of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising.

12B

Articles 22 to 24 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community.

12C

Articles 9 to 11 and 19 to 26 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services.

14A

Articles 10, 11, 13 to 18 and 21 to 23, Chapter 10 and Annexes I and II of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010.

14B

Articles 3 to 18 and 20(2) of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features.

Magistrates’ Courts Act 1980 (c. 43)

Employment Rights Act 1996 (c. 18)

Coal Industry Act 1994 (c. 21)

Pensions etc. of former Directors

Electricity Act 1989 (c. 29)

Civil Aviation Act 1982 (c. 16)

Airports Act 1986 (c. 31)

Companies Act 1989 (c. 40)

Courts and Legal Services Act 1990 (c. 41)

Broadcasting Act 1990 (c. 42)

Railways Act 1993 (c. 43)

Coal Industry Act 1994 (c. 21)

Data Protection Act 1998 (c. 29)

Transport Act 2000 (c. 38)

20BA

(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.

Disqualification from office: local government

Insolvency Services Account: interest

Disqualification from office: local government

Disqualification from office: general

Electricity Act 1989 (c. 29)

Broadcasting Act 1990 (c. 42)

Transport Act 2000 (c. 38)

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

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General

Companies Act 1985 (c. 6)

Housing Act 1996 (c. 52)

Interpretation

Housing Act 1996 (c. 52)

Restrictive Practices Court Act 1976 (c. 33)

Patents Act 1977 (c. 37)

Electricity Act 1989 (c. 29)

Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))

Transport Act 2000 (c. 38)

Consumer Protection Act 1987 (c. 43)

Insolvency Act 1986 (c. 45)

Companies Act 1989 (c. 40)

Operation of references to OFT before commencement of section 2(3)

Broadcasting Act 1990 (c. 42)

Water Resources Act 1991 (c. 57)

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

Osteopaths Act 1993 (c. 21)

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

Data Protection Act 1998 (c. 29)

Competition Act 1998 (c. 41)

Greater London Authority Act 1999 (c. 29)

Terrorism Act 2000 (c. 11)

Extension of time-limits

Duties of CMA and OFCOM to inform Secretary of State

Transferred EU merger commitments

95A

(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;

(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

(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;

(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.

Delegated power of directions

109A

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.

Ministerial power to make references

Acquisition of information etc.

Full PI references: remedial action by Secretary of State

Implementation trials: notices

Power of CMA to make references

Procedural requirements for certain undertakings and orders: Part 4

Certain duties of relevant authorities to consult: Part 4

Index of defined expressions: Part 4

Power to modify Schedule 8

General restriction

Provision of information and advice to Ministers etc.

Disqualification from office: local government

Railways Act 1993 (c. 43)

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10A

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17

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18

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18A

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18B

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18C

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19

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20

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20A

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21

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21A

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21B

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22

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22A

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23

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24

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24A

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24B

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24C

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25

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25A

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25B

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25C

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26

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27

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28

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28A

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28B

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29

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Magistrates’ Courts Act 1980 (c. 43)

Insolvency Act 1986 (c. 45)

Neither old law nor new law to apply

Introduction

Estate Agents Act 1979 (c. 38)

Competition Act 1980 (c. 21)

Civil Aviation Act 1982 (c. 16)

Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))

Companies Act 1989 (c. 40)

Courts and Legal Services Act 1990 (c. 41)

Tribunals and Inquiries Act 1992 (c. 53)

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

Osteopaths Act 1993 (c. 21)

Railways Act 1993 (c. 43)

Coal Industry Act 1994 (c. 21)

Data Protection Act 1998 (c. 29)

Competition Act 1998 (c. 41)

Financial Services and Markets Act 2000 (c. 8)

Water Resources Act 1991 (c. 57)

Transport Act 2000 (c. 38)

Mergers of energy network enterprises in Great Britain

68A

(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);

(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

(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

(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) 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

(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,

(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

(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

(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.

SCHEDULE 5A

1

(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.

2

Section 23 (relevant merger situations) has effect as if—

(a) in subsection (1), for paragraph (b) there were substituted—

(b) the value of the turnover in Great Britain of the enterprise being taken over exceeds £100 million.

;

(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”;

(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

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

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.

6

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”;

(2) For the purposes of this section there is a prejudicial outcome if there is a situation described in subsection (1)(a) which has, or may be expected to have, the effect described in subsection (1)(b).

;

(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

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”;

(1A) For the purposes of this section there is a prejudicial outcome if there are arrangements described in subsection (1)(a) which may be expected to have the effect described in subsection (1)(b).

;

(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”.

8

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”;

Enforcement undertakings and orders under this Part: general provisions

Interim online interface orders

General modifications

Telecommunications Act 1984 (c. 12)

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General

Companies Act 1985 (c. 6)

Coal Industry Act 1994 (c. 21)

Restrictive Practices Court Act 1976 (c. 33)

Estate Agents Act 1979 (c. 38)

Competition Act 1980 (c. 21)

Civil Aviation Act 1982 (c. 16)

Telecommunications Act 1984 (c. 12)

Companies (Northern Ireland) Order 1989 (S.I. 1990/593 (N.I. 5))

Water Resources Act 1991 (c. 57)

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

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

Data Protection Act 1998 (c. 29)

Greater London Authority Act 1999 (c. 29)

Railways Act 1993 (c. 43)

Transport Act 2000 (c. 38)

Chapter 3A — Mergers involving newspaper enterprises and foreign powers

70A

(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

(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

(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—

(12) In this paragraph “pre-emptive action” means action which might prejudice a foreign state intervention notice or a report under section 70B, or might impede the taking of any action under this Part in relation to such a notice or report

70D

(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

(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,

(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

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

(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

(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.

94AA

(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

(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

(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;

(b) “relevant guidance” means the statement of policy which was most recently published under section 94B at the time when the act or omission concerned occurred.

(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)).

Minority reports of CMA

Supply of services and market for services etc.

Implementation trials of final orders and undertakings

161B

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