Enterprise and Regulatory Reform Act 2013

(34ZA) (1) In carrying out its function of deciding whether to make a reference under section 22 or 33, the CMA shall, within the initial period— (a) decide whether the duty to make a reference under the section applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and (b) inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it. (2) Nothing in this section prevents the CMA from making a reference under section 22 or 33 in the event that— (a) it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but (b) no such undertakings are offered or accepted. (3) In this section— - “the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with— 1. where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and 2. in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference; - “working day” means any day which is not— 1. a Saturday, a Sunday, Good Friday or Christmas Day, or 2. a day which is a bank holiday in England and Wales. (4) For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to— (a) arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or (b) the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect. (5) Nothing in this section applies where section 34A(2) or 46A(2) applies (duties where case referred by the European Commission). (34ZB) (1) The CMA may extend the initial period mentioned in section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question. (2) In subsection (1), “relevant person” means— (a) any person carrying on any of the enterprises concerned; (b) any person who (whether alone or as a member of a group) owns or has control of any such person; or (c) any officer, employee or agent of any person mentioned in paragraph (a) or (b). (3) For the purposes of subsection (2), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it. (4) Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days. (5) The CMA may by notice extend the initial period if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(1) of the EC Merger Regulation (but is not yet proceeding with the matter in pursuance of such a request). (6) An extension under subsection (1) or (4) comes into force when published under section 107. (7) An extension under subsection (1) continues in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension. (8) An extension under subsection (5) shall be for the period which— (a) begins when notice is given under that subsection, and (b) ends when the CMA gives notice of the completion by the European Commission of its consideration of the request of the United Kingdom. (9) In this section, “working day” has the same meaning as in section 34ZA. (34ZC) (1) An extension of the period mentioned in section 34ZA(1) may be made under each of subsections (1), (4) or (5) of section 34ZB. (2) No more than one extension is possible under section 34ZB(4). (3) Where a period is extended or further extended under section 34ZB(1), (4) or (5), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time). (4) Subsection (5) applies where— (a) the period mentioned in section 34ZA(1) is further extended; (b) the further extension and at least one previous extension is made under one or more of subsections (1) and (5) of section 34ZB; and (c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension. (5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded. (6) The Secretary of State may by order do either or both of the following— (a) amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period; (b) amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period. (7) But no alteration may be made by virtue of subsection (6) which results in— (a) the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or (b) the period for the time being mentioned in section 34ZB(4) exceeding 20 working days. (8) Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate. (9) In this section, “working day” has the same meaning as in section 34ZA.

5

• (1) Section 39 (time-limits for investigations and reports) is amended as follows.

• (2) In subsection (5) for “subsection (4)” substitute “ this section ”.

• (3) After subsection (8) insert—

(8A) In the case of a report on a reference under section 33, the CMA may provide that a specified period of no more than 3 weeks is to be disregarded for the purposes of any time-limit for the preparation and publication of the report which applies by virtue of this section if— (a) a relevant person has so requested before the end of the period of 3 weeks beginning with the date of the reference concerned; and (b) the CMA reasonably believes that the arrangements in question might be abandoned. (8B) If the CMA exercises the power under subsection (8A), the CMA shall publish a notice to that effect.

6

After section 41 (duty to remedy effects of completed or anticipated mergers) insert—

(41A) (1) The CMA shall discharge its duty under section 41(2) within the period of 12 weeks beginning with the date on which it publishes the report concerned under section 38. (2) The CMA may extend, by no more than 6 weeks, the period within which its duty under section 41(2) shall be discharged if it considers that there are special reasons for doing so. (3) The CMA may extend the period within which its duty under section 41(2) shall be discharged if it considers that a relevant person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109 which is given in relation to the reference. (4) In subsection (3), “relevant person” means— (a) any person carrying on any of the enterprises concerned; (b) any person who (whether alone or as a member of a group) owns or has control of any such person; or (c) any officer, employee or agent of any person mentioned in paragraph (a) or (b). (5) For the purposes of subsection (4), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it. (6) An extension under subsection (2) or (3) comes into force when published under section 107. (7) An extension under subsection (3) continues in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension. (41B) (1) A period extended under section 41A(2) may also be extended under section 41A(3), and a period extended under section 41A(3) may also be extended under section 41A(2). (2) No more than one extension is possible under section 41A(2). (3) Where a period is extended or further extended under section 41A(2) or (3), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time). (4) Subsection (5) applies where— (a) the period within which the CMA must discharge its duty under section 41(2) is further extended; (b) the further extension and at least one previous extension is made under section 41A(3); and (c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension. (5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded. (6) The Secretary of State may by order amend section 41A so as to alter either or both of the following periods— (a) the period of 12 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period; (b) the period of 6 weeks mentioned in subsection (2) of that section or any period for the time being mentioned in that subsection in substitution for that period. (7) But no alteration may be made by virtue of subsection (6) which results in— (a) the period for the time being mentioned in section 41A(1) exceeding 12 weeks; or (b) the period for the time being mentioned in section 41A(2) exceeding 6 weeks. (8) Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

7

After section 73 (undertakings in lieu of references under section 22 or 33) insert—

(73A) (1) A party concerned who wishes to offer an undertaking to the CMA for the purposes of section 73(2) must do so before the end of the period of 5 working days beginning with— (a) the day after the CMA gives the person the notice required by section 34ZA(1)(b); or (b) in a case where subsection (2) of section 34A applies, the day after the CMA gives the person the notice required by paragraph (b) of that subsection. (2) If an undertaking is offered for those purposes, the CMA shall, before the end of the period of 10 working days beginning with the day mentioned in subsection (1)— (a) decide whether there are reasonable grounds for believing that the undertaking or a modified version of it might be accepted by the CMA under section 73(2), and (b) if it considers that it might be, give notice to the person who offered the undertaking that it is considering it. (3) If such a notice is given, the CMA shall decide whether to accept the undertaking before the end of the period of 50 working days beginning with the day mentioned in subsection (1). (4) The CMA may extend the period mentioned in subsection (3), by no more than 40 working days, if it considers that there are special reasons for doing so. (5) The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4). (6) The CMA may revise any such guidance and, where it does so, shall publish the revised statement. (7) The CMA may extend the period mentioned in subsection (3) if it considers that a relevant person has failed (with or without reasonable excuse) to comply with any requirement of a notice given under section 109 in relation to the case in question. (8) In subsection (7), “relevant person” means— (a) any person carrying on any of the enterprises concerned; (b) any person who (whether alone or as a member of a group) owns or has control of any such person; or (c) any officer, employee or agent of any person mentioned in paragraph (a) or (b). (9) For the purposes of subsection (8), a person or group of persons able, directly or indirectly, to control or materially influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it. (10) An extension under subsection (4) or (7) comes into force when published under section 107. (11) An extension under subsection (7) continues in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension. (12) In this section and section 73B, “working day” means any day which is not— (a) a Saturday, a Sunday, Good Friday or Christmas Day, or (b) a day which is a bank holiday in England and Wales. (73B) (1) A period extended under section 73A(4) may also be extended under section 73A(7), and a period extended under section 73A(7) may also be extended under section 73A(4). (2) No more than one extension is possible under section 73A(4). (3) Where a period is extended or further extended under section 73A(4) or (7), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time). (4) Subsection (5) applies where— (a) the period within which the CMA must discharge its duty under section 73A(3) is further extended, (b) the further extension and at least one previous extension is made under section 73A(7), and (c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension. (5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded. (6) The Secretary of State may by order amend section 73A so as to alter one or more of the periods for the time being mentioned in the section. (7) But no alteration may be made by virtue of subsection (6) which results in— (a) the period mentioned in section 73A(1) exceeding 5 working days; (b) the period mentioned in section 73A(2) exceeding 10 working days; (c) the period mentioned in section 73A(3) exceeding 50 working days; (d) the period mentioned in section 73A(4) exceeding 40 working days. (8) Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

8

• (1) Section 96 (merger notices) is amended as follows.

• (2) In subsection (1), for the words from “of proposed arrangements” to the end of the subsection substitute “ of arrangements or proposed arrangements which might have resulted or might result in the creation of a relevant merger situation. ”

• (3) In subsection (2) after paragraph (a) (and before the “and” immediately following it) insert—

(aa) shall contain the prescribed information;

.

• (4) After subsection (2) insert—

(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.

• (5) Omit subsections (3) and (4).

9

Sections 97 and 98 (period for considering merger notices) are omitted.

10

• (1) Section 99 (certain functions in relation to merger notices) is amended as follows.

• (2) In subsection (1), for “the period for considering any merger notice begins” substitute “ the initial period (within the meaning of section 34ZA) begins in relation to the merger notice ”.

• (3) In subsection (5), for “the period for considering any merger notice” substitute “ the initial period (within the meaning of section 34ZA) in relation to a merger notice ”.

11

• (1) Section 100 (exceptions to protection given by merger notices) is amended as follows.

• (2) In subsection (1)—

• (a) in the words before paragraph (a), for “Section 96(3) does not” substitute “ Sections 22(3)(za) and 33(3)(za) do not ”,

• (b) in those words, for “to the Commission” substitute “ under section 22 or (as the case may be) 33 ”,

• (c) in paragraph (a), for “the period for considering the merger notice” substitute “ the initial period (within the meaning of section 34ZA) in relation to the merger notice ”,

• (d) omit paragraph (b),

• (e) in paragraph (c), omit the words from “by such time” to the end of the paragraph, and

• (f) in paragraph (e), for “the period for considering the merger notice” substitute “ the initial period (within the meaning of section 34ZA) in relation to the merger notice ”.

• (3) In subsection (2)—

• (a) in paragraph (a), for “section 22, 33 or 45” substitute “ section 22 or 33 ”, and

• (b) in paragraph (b), for “section 96(3) does not” substitute “ sections 22(3)(za) and 33(3)(za) do not ”.

• (4) In subsection (3), for “Section 96(3) does not” substitute “ Sections 22(3)(za) and 33(3)(za) do not ”.

12

• (1) Section 101 (merger notices: regulations) is amended as follows.

• (2) In subsection (2), in paragraph (a), omit “section 97(1), (2), (3) or (4) or”.

• (3) In that subsection, omit paragraphs (c) to (f).

13

• (1) Section 124 (order and regulations under Part 3) is amended as follows.

• (2) In subsection (4)—

• (a) after “section” insert “ 34ZC(6), ”,

• (b) after “40(8),” insert “ 41B(6), ”, and

• (c) after “68,” insert “ , 73B(6), ”.

• (3) In subsection (5)—

• (a) after “67(7)),” insert “ 34ZC(6), ”,

• (b) after “40(8),” insert “ 41B(6), ”, and

• (c) after “65(3)),” insert “ 73B(6), ”.

SCHEDULE 9

1

Part 4 of the 2002 Act (market investigations) is amended as follows.

2

• (1) Section 133 (contents of references) is amended as follows.

• (2) In subsection (1)—

• (a) omit the “and” following paragraph (b),

• (b) in paragraph (c), at the beginning insert “ in the case of an ordinary reference, ”, and

• (c) after paragraph (c) insert

; and (d) in the case of a cross-market reference, the feature or features concerned and the descriptions of goods or services to which it or they relate.

• (3) In subsection (2)—

• (a) in paragraph (a), after “a supply” insert “ or, in the case of a cross-market reference, supplies ”, and

• (b) in paragraph (b), after “an acquisition” insert “ or, in the case of a cross-market reference, acquisitions ”.

3

• (1) Section 134 (questions to be decided on market investigation references) is amended as follows.

• (2) In subsection (1), for “a market investigation” substitute “ an ordinary ”.

• (3) After subsection (1) insert—

(1A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

• (4) In subsection (2), for “a market investigation” substitute “ an ordinary ”.

• (5) After subsection (2) insert—

(2A) For the purposes of this Part, in relation to a cross-market reference, there is an adverse effect on competition if a feature or a combination of the features specified in the reference, as that feature or combination of features relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

• (6) In subsection (5)(a), after “the market” insert “ or markets ”.

• (7) In subsection (7), after “the market” insert “ or markets ”.

• (8) In subsection (8)(a)(i), after “the market” insert “ or markets ”.

4

In section 138 (duty to remedy adverse effects), in subsection (5), after “the market” insert “ or markets ”.

5

• (1) Section 141 (questions to be decided where intervention notice under section 139(1) is in force) is amended as follows.

• (2) In subsection (2), after “shall” insert “ , on an ordinary reference, ”.

• (3) After subsection (2) insert—

(2A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

• (4) In subsection (6), after “the market” insert “ or markets ”.

6

In section 147 (remedial action by the Secretary of State), in subsection (5), after “the market” insert “ or markets ”.

7

In section 154 (undertakings in lieu of references), in subsection (4), after “the market” insert “ or markets ”.

8

• (1) Section 156 (effect of undertakings under section 154) is amended as follows.

• (2) Before subsection (1) insert—

(A1) No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if— (a) the CMA has accepted an undertaking or group of undertakings under section 154 within the previous 12 months; (b) the feature or combination of features to which the undertaking or group of undertakings relates is the same as the feature or combination of features to which the reference would relate; and (c) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.

• (3) In subsection (1)—

• (a) in the words before paragraph (a), for “market investigation” substitute “ ordinary ”,

• (b) in paragraph (a), after “has” insert “ , instead of making an ordinary reference, ”, and

• (c) in paragraph (b), for “the feature, or combination of features, relates” substitute “ the reference would relate ”.

• (4) In subsection (2), for “Subsection (1) does” substitute “ Subsections (A1) and (1) do ”.

9

• (1) Section 184 (index of defined expressions for Part 4) is amended as follows.

• (2) In the second column of the entry for “Adverse effect on competition”, after “134(2)” insert “ and (2A) ”.

• (3) After the entry in the table for “Consumer” insert—

Cross-market reference	Section 131(6)

.

• (4) Before the entry in the table for “Public interest consideration” insert—

Ordinary reference	Section 131(6)

.

SCHEDULE 10

1

Part 4 of the 2002 Act (market investigations) is amended as follows.

2

• (1) Section 131 (power to make market investigation references) is amended as follows.

• (2) In subsection (4)(b), after “132” insert “ or 140A(6) ”.

• (3) In subsection (6), in the definition of “market investigation reference”, after “132” insert “ or 140A(6) ”.

3

In section 132 (ministerial power to make references), in subsection (4)—

• (a) after “if” insert

— (a)

, and

• (b) at the end insert

; or (b) a reference has been made under section 140A(6) in relation to the same matter but has not been finally determined.

4

In section 135 (variation of references), in subsection (1), for “by it or (as the case may be) by him” substitute “ by it under section 131 or (as the case may be) by the appropriate Minister under section 132 ”.

5

• (1) Section 140 (supplementary provision about intervention notices under section 139(1)) is amended as follows.

• (2) In subsection (1)—

• (a) for paragraphs (a) and (b) substitute—

(a) the matter to which the market study notice or (as the case may be) the consultation under section 169 concerned relates; (b) the date of publication of that notice or (as the case may be) on which the process of consultation began;”, and

• (b) in paragraph (c), for “case” substitute “ matter ”.

• (3) In subsection (2), for “case” (in the second place where it occurs) substitute “ matter ”.

• (4) After subsection (4) insert—

(4A) An intervention notice under section 139(1) shall also cease to be in force if— (a) it mentions a public interest consideration which was not finalised on the giving of the notice or public interest considerations which, at that time, were not finalised; (b) no other public interest consideration is mentioned in the notice; (c) at least 24 weeks has elapsed since the giving of the notice; (d) the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks; and (e) the Secretary of State has not, by the end of that period of 24 weeks, made a reference under section 140A in relation to the matter. (4B) Subsection (4D) applies in a case where— (a) an intervention notice ceases to be in force in accordance with subsection (4A); (b) the CMA has, before the time at which the notice ceases to be in force, prepared a market study report in relation to the matter within the period permitted by section 131B(4) and given it to the Secretary of State in accordance with section 140A(3)(b); and (c) the report contains the decision of the CMA that it should make a reference in relation to the matter concerned under section 131. (4C) Subsection (4D) also applies in a case where— (a) an intervention notice ceases to be in force in accordance with subsection (4A); and (b) the CMA has, before the time at which the notice ceases to be in force— (i) decided that it should make an ordinary reference or a cross-market reference under section 131 in relation to the matter concerned; and (ii) given a document containing its decision, the reasons for it and such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision to the Secretary of State in accordance with section 140A(3)(c). (4D) In a case to which this subsection applies— (a) the CMA shall, as soon as reasonably practicable, make a reference in relation to the matter under section 131; and (b) the reference is to be treated for the purposes of this Part as having been made in accordance with the requirements imposed by this Part.

• (5) In subsection (5)—

• (a) before paragraph (a) insert—

(za) the CMA accepts an undertaking under section 154 instead of making a reference under section 131 in relation to the matter; (zb) the CMA publishes notice that it has otherwise decided not to make a reference under section 131 in relation to the matter; (zc) the period permitted for the preparation by the CMA of the market study report in relation to the matter and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3) has expired and no such report has been so prepared or no such action has been taken; (zd) the Secretary of State makes a reference under section 140A(5) in relation to the matter;

,

• (b) in paragraph (a), after “143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”,

• (c) in paragraph (c), after “143(1)” insert “ or (as the case may be) 143A(2) ”,

• (d) in paragraph (d), at the end insert “ or (as the case may be) fails to make and publish a decision under subsection (2) of section 146A within the period required by subsection (6) of that section ”,

• (e) in paragraph (e), at the end insert “ or (as the case may be) decides under section 146A(2) to make no finding at all in relation to the matter ”, and

• (f) in paragraph (f), after “147(2)” insert “ or (as the case may be) 147A(2) ”.

• (6) In subsection (6)—

• (a) before paragraph (a) insert—

(za) in a case falling within subsection (5)(za), the acceptance of the undertaking concerned; (zb) in a case falling within subsection (5)(zb), the publication of the notice concerned;

,

• (b) in paragraph (a), after “(5)” insert “ (zc), ”, and

• (c) after paragraph (a) insert—

(aa) in a case falling within subsection (5)(zd), the making of the reference concerned;

.

• (7) After subsection (6) insert—

(6A) In subsection (6)(za) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (5)(za) and (6)(za).

• (8) In subsection (7), after “147(2)” insert “ or (as the case may be) 147A(2) ”.

6

After section 140A (inserted by section 35) insert—

(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.

7

• (1) Section 141 (questions to be decided where section 139(1) intervention notice is in force) is amended as follows.

• (2) For subsection (1) substitute—

(1) This section applies where the Secretary of State makes a restricted PI reference.

• (3) For the heading, substitute “ Restricted PI references: questions to be decided by CMA ”.

8

• (1) Section 142 (investigations and reports) is amended as follows.

• (2) In subsection (1)—

• (a) for the words from the beginning to “the Commission” substitute “ Where the Secretary of State makes a restricted PI reference or a full PI reference, the CMA ”, and

• (b) after “section 143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”.

• (3) In subsection (2)—

• (a) in paragraph (a), at the end insert “ or (as the case may be) 141A ”,

• (b) omit the “and” after paragraph (b), and

• (c) after paragraph (c) insert

; and (d) in the case of a report in relation to a full PI reference in respect of which the Secretary of State appointed a public interest expert, a summary of the views of the expert.

• (4) After subsection (2) insert—

(2A) A summary of the views of a public interest expert in a report under this section shall be approved by the expert before action is taken in relation to the report under section 143A(2) or (3).

9

• (1) Section 143 (publication etc of reports) is amended as follows.

• (2) Before subsection (1) insert—

(A1) This section applies in relation to a report prepared under section 142 in respect of a restricted PI reference.

• (3) In subsection (1), in the words before paragraph (a), for “a report under section 142” substitute “ the report ”.

• (4) Omit subsection (2).

• (5) In subsection (3), for “a report under section 142” substitute “ the report ”.

• (6) Omit subsections (5) to (8).

• (7) For the heading substitute “ Restricted PI references: publication etc of reports of CMA ”.

10

After section 143 insert—

(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).

11

• (1) Section 144 (time-limits for investigations and reports in public interest cases) is amended as follows.

• (2) In subsection (1)—

• (a) for “the date of the reference” substitute “ the relevant date ”, and

• (b) for the words from “publish it” to the end substitute “ publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3). ”

• (3) After subsection (1) insert—

(1A) For the purposes of subsection (1), the “relevant date” is— (a) in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference; (b) in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following— (i) the date of the appointment of the expert; (ii) the date on which the Secretary of State gives notice to the CMA that the Secretary of State no longer intends to appoint such an expert; (iii) the end of the period of 2 months beginning with the date of the reference.

• (4) In subsection (4), after “143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”.

12

• (1) Section 145 (restrictions where public interest considerations not finalised: Part 4) is amended as follows.

• (2) In subsection (2), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

• (3) In subsection (3), after “141(3)” insert “ or (as the case may be) 141A(4) and (5). ”

• (4) In subsection (4), after “141(3)” insert “ or (as the case may be) 141A(4) and (5). ”

13

• (1) Section 146 (decision of Secretary of State) is amended as follows.

• (2) In subsection (1), in the words before paragraph (a), for “report of the Commission” substitute “ report of the CMA in relation to a restricted PI reference ”.

• (3) In the heading, at the beginning, insert “ Restricted PI references: ”.

14

After section 146 insert—

(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 (c) has been given to the Secretary of State as required by section 143A(3). (2) The Secretary of State shall decide whether to make an adverse public interest finding in relation to the matter and whether to make no finding at all in the matter. (3) For the purposes of this Part, the Secretary of State makes an adverse public interest finding in relation to a matter if, in relation to that matter, the Secretary of State decides— (a) that there is an adverse effect on competition; (b) that there is one or more than one admissible public interest consideration which is relevant to the matter; and (c) taking account only of any adverse effect on competition and any relevant admissible public interest consideration or considerations, that any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest. (4) The Secretary of State may make no finding at all in a matter only if the Secretary of State decides that there is no admissible public interest consideration which is relevant to a consideration of the matter concerned. (5) In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept the decision of the CMA as to whether there is an adverse effect on competition in relation to the matter. (6) The Secretary of State shall make and publish the decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142. (7) In this section “admissible public interest consideration” means a public interest consideration which— (a) was mentioned in the intervention notice concerned; and (b) was not disregarded by the CMA for the purposes of its report under section 142.

15

In section 147 (remedial action by Secretary of State), in the heading, at the beginning, insert “ Restricted PI references: ”.

16

After section 147 insert—

(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.

17

• (1) Section 148 (reversion of the matter) is amended as follows.

• (2) Omit subsections (3) to (5).

• (3) For the heading substitute “ Restricted PI references: reversion of the matter to CMA ”.

18

After section 148 insert—

(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.

19

• (1) Section 149 (intervention notices under section 139(2)) is amended as follows.

• (2) In subsection (1)(c), for “case” substitute “ proposal to accept the undertaking ”.

• (3) In subsection (2), for “case” (in the second place where it occurs) substitute “ proposal to accept the undertaking ”.

20

In section 150 (power of veto of Secretary of State: undertakings in lieu), before subsection (1) insert—

(A1) Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking under section 154 in relation to the matter concerned.

21

• (1) Section 151 (further interaction of intervention notices with general procedure) is amended as follows.

• (2) For subsection (1) substitute—

(1) Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.

• (3) In subsection (2), for the words from “, the Commission” to the end substitute “ at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part). ”

• (4) In subsection (4), for the words from “, the Commission shall” to the end substitute “ , the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part). ”

• (5) For the heading, substitute “ Public interest intervention cases: interaction with general procedure ”.

22

In section 152 (certain duties in relation to providing information), omit subsection (2).

23

In section 155 (undertakings in lieu: procedural requirements), in subsection (3)(a), at the end insert “ or (but for the effect of section 140A(3)) it would have had power to make and which it would otherwise have intended to make ”.

24

• (1) Section 157 (interim undertakings: Part 4) is amended as follows.

• (2) In subsection (1)(b), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

• (3) In subsection (6)—

• (a) in the definition of “pre-emptive action”, for “or (as the case may be) 147(2)” substitute “ , 147(2) or (as the case may be) 147A(2) ”, and

• (b) for the definition of “relevant authority” substitute—

“the relevant authority” means— (a) in the case of a restricted PI reference or a full PI reference, the Secretary of State; (b) in any other case, the CMA.

25

In section 158 (interim orders: Part 4), in subsection (1)(b), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

26

In section 159 (final undertakings: Part 4), in subsection (2), after “147” insert “ or (as the case may be) 147A ”.

27

• (1) Section 160 (order-making power where final undertakings not fulfilled: Part 4) is amended as follows.

• (2) In subsection (2), for “or (as the case may be) 147(2)” substitute “ , 147(2) or (as the case may be) 147A(2) ”.

• (3) In subsection (3), for “or (as the case may be) 147” substitute “ or 147 or (as the case may be) subsections (3) and (4) of section 147A ”.

28

In section 161 (final orders: Part 4), in subsection (2), after “147” insert “ or (as the case may be) 147A ”.

29

In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6)—

• (a) in the definition of “relevant authority”, at the end insert “ or the Secretary of State ”,

• (b) in the definition of “relevant decision”, in paragraph (b), after “appropriate Minister” (in the first place where it occurs) insert “ (other than the Secretary of State acting alone) ”, and

• (c) also in that definition, after paragraph (b) insert—

1. in the case of the Secretary of State, any decision by the Secretary of State—
2. to make a reference under section 132;
3. to vary under section 135 such a reference;
4. in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or
5. to vary under section 140B a reference made under section 140A(6).

30

• (1) Section 172 (further publicity requirements: Part 4) is amended as follows.

• (2) In subsection (1), in paragraph (a), after “section 131” insert “ , other than a reference treated as so made by virtue of section 140A(5)(b) ”.

• (3) In subsection (2), omit paragraph (d).

• (4) In subsection (3)—

• (a) after paragraph (d) insert—

(da) any reference made by him under section 140A(5) or (6); (db) any variation made by him under section 140B of a reference under section 140A(6);

, and

• (b) in paragraph (e), after “147(2)” insert “ or (as the case may be) 147A(2) ”.

• (5) In subsection (7), omit “or (2)(d)”.

• (6) In subsection (7A) (inserted by Schedule 12), at the end insert “ or (3)(da) ”.

• (7) In subsection (8), in paragraph (a), after “146(2)” insert “ or 146A(2) ”.

• (8) In subsection (10), after “147(2)” insert “ or 147A(2) ”.

31

In section 177 (excisions from reports: Part 4), in subsection (5), omit “, 143(2) and (5) to (7), 148(3) to (5)”.

32

• (1) Section 183 (interpretation: Part 4) is amended as follows.

• (2) In subsection (3), in paragraph (a), for the words before sub-paragraph (i) substitute “ where the reference is made under section 131 or 132— ”.

• (3) In that subsection, in paragraph (b)—

• (a) for the words before sub-paragraph (i) substitute “ where the reference is a restricted PI reference or a full PI reference— ”,

• (b) in sub-paragraph (i), after “143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”,

• (c) in sub-paragraph (ii), omit “(disregarding the fact that the notice was given)”,

• (d) in sub-paragraph (iii), after “143(1)” insert “ or (as the case may be) 143A(2) ”,

• (e) in sub-paragraph (iv), omit “(disregarding the fact that the notice was given)”,

• (f) for sub-paragraph (v) substitute—

(v) the Secretary of State has failed to make and publish a decision under subsection (2) of section 146 within the period permitted by subsection (3) of that section or (as the case may be) under subsection (2) of section 146A within the period permitted by subsection (6) of that section and the reference is finally determined under paragraph (a) above;

,

• (g) in sub-paragraph (vi), omit “(disregarding the fact that the notice was given)”,

• (h) after sub-paragraph (vi) insert—

(via) the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;

,

• (i) omit the “or” after sub-paragraph (vii),

• (j) after sub-paragraph (vii) insert—

(viia) the Secretary of State has made an adverse public interest finding under section 146A(2) but has decided under section 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

, and

• (k) after sub-paragraph (viii) insert

; or (ix) the Secretary of State has made an adverse public interest finding under section 146A(2) and has accepted an undertaking under section 159 or made an order under section 161.

• (4) In subsection (4)(c), after “(b)(viii)” insert “ or (ix) ”.

• (5) In subsection (5), for “or (vi)” substitute “ , (vi) or (via) ”.

• (6) In subsection (6), after “(b)(viii)” insert “ and (ix) ”.

33

• (1) Section 184 (index of defined expressions in Part 4) is amended as follows.

• (2) After the entry in the table for “Adverse effect on competition” insert—

Adverse public interest finding	Section 146A(3)

.

• (3) After the entry in the table for “Final determination of market investigation reference” insert—

Full PI reference	Section 140A(12)

.

• (4) After the entry in the table for “Public interest consideration being finalised” insert—

Public interest expert	Section 141B(4)

.

• (5) Before the entry in the table for “subordinate legislation” insert—

Restricted PI reference	Section 140A(12)

.

SCHEDULE 11

Enforcement of investigation powers

1

After section 174 of the 2002 Act insert—

(174A) (1) Where the CMA considers that a person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174, it may impose a penalty in accordance with section 174D. (2) The CMA may proceed (whether at the same time or at different times) under subsection (1) and section 138A(3) in relation to the same failure. (3) Where the CMA considers that a person has intentionally obstructed or delayed another person in the exercise of its powers under section 174(7), it may impose a penalty in accordance with section 174D. (4) A person commits an offence if the person intentionally alters, suppresses or destroys any document which the person has been required to produce by a notice under section 174. (5) But a person does not commit an offence under subsection (4) in relation to any act which constitutes a failure to comply with a notice under section 174 if the CMA has proceeded against the person under subsection (1) in relation to that failure. (6) A person who commits an offence under subsection (4) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both. (7) The CMA shall not proceed against a person under subsection (1) in relation to an act which constitutes an offence under subsection (4) if that person has been found guilty of that offence. (8) In deciding whether and, if so, how to proceed under subsection (1) or (3) or section 138A(3), the CMA shall have regard to the statement of policy which was most recently published under section 174E at the time the failure or (as the case may be) the obstruction or delay concerned occurred. (9) In this section— (a) the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and (b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form. (174B) (1) No penalty shall be imposed by virtue of section 174A(1) or (3) if more than 4 weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part. (2) In the following provisions of this section, “the section 174 power” means the power under section 174 to which the failure or (as the case may be) the obstruction or delay in question relates. (3) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(a), the relevant day is the day when the CMA finally concludes the carrying out of its section 5 functions. (4) Where the section 174 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked. (5) Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section. (6) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a possible reference under section 131, the relevant day is the day when the CMA finally decides whether to make the reference. (7) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a reference under section 131 or 132, the relevant day is the day when the reference is finally determined (see section 183). (8) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a possible reference under section 140A(5) or (6), the relevant day is the day when the Secretary of State makes the reference. (9) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a reference under section 140A(6), the relevant day is the day when the reference is finally determined (see section 183). (174C) (1) For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if— (a) the CMA publishes the market study report under section 131B(4) or (as the case may be) gives it to the Secretary of State under section 140A(3)(b); or (b) the period permitted for the preparation by the CMA of the market study report and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3)(b) expires and no such report has been so prepared or no such action has been taken. (2) For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is— (a) in a case falling within subsection (1)(a), the publication of the report or (as the case may be) the giving of it to the Secretary of State; (b) in a case falling within subsection (1)(b), the expiry of the period concerned. (3) For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if— (a) the CMA makes such a reference; (b) the CMA accepts an undertaking under section 154 instead of making such a reference; (c) the CMA publishes notice that it has otherwise decided not to make such a reference; or (d) the period permitted for the preparation by the CMA of a market study report in relation to the matter and for the report to be published under section 131B(4) has expired and no such report has been so prepared or published. (4) For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 is— (a) in a case falling within subsection (3)(a), the making of the reference; (b) in a case falling within subsection (3)(b), the acceptance of the undertaking concerned; (c) in a case falling within subsection (3)(c), the publication of the notice concerned; (d) in a case falling within subsection (3)(d), the expiry of the period concerned. (5) In subsection (4)(b) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (3)(b) and (4)(b). (174D) (1) A penalty imposed under section 174A(1) or (3) shall be of such amount as the CMA considers appropriate. (2) In the case of a penalty imposed under section 174A(1), the amount may be— (a) a fixed amount; (b) an amount calculated by reference to a daily rate; or (c) a combination of a fixed amount and an amount calculated by reference to a daily rate. (3) In the case of a penalty imposed under section 174A(3), the amount shall be a fixed amount. (4) A penalty imposed under section 174A(1) shall not— (a) in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify; (b) in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; and (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify. (5) A penalty imposed under section 174A(3) shall not exceed such amount as the Secretary of State may by order specify. (6) An order under subsection (4) or (5) shall not specify— (a) in the case of a fixed amount, an amount exceeding £30,000; (b) in the case of an amount calculated by reference to a daily rate, an amount per day exceeding £15,000; and (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, a fixed amount exceeding £30,000 and an amount per day exceeding £15,000. (7) Before making an order under subsection (4) or (5), the Secretary of State shall consult— (a) the CMA; and (b) such other persons as the Secretary of State considers appropriate. (8) In imposing a penalty by reference to a daily rate— (a) no account is to be taken of any days before the service on the person concerned of notice of the penalty under section 112 (as applied by subsection (10)); and (b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (9). (9) Those days are— (a) the day on which the requirement of the notice concerned under section 174 is satisfied; (b) the day which is the relevant day in the case in question for the purposes of section 174B. (10) Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (3) as they apply in relation to a penalty imposed under section 110(1) or (3). (174E) (1) The CMA shall prepare and publish a statement of policy in relation to the enforcement of notices given under section 174. (2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 174A(1) or (3). (3) The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement. (4) The CMA shall consult such persons as it considers appropriate when preparing or revising its statement of policy.

Investigation powers: miscellaneous consequential amendments

2

Part 4 of the 2002 Act (market investigations) is amended as follows.

3

Omit section 175 (enforcement of powers under section 174: offences).

4

Omit section 176 (investigation powers of the Commission).

5

In section 179 (review of decisions under Part 4), in subsection (2)(a), for “section 110(1) or (3) as applied by section 176” substitute “ section 174A(1) or (3) ”.

6

• (1) Section 181 (orders under Part 4) is amended as follows.

• (2) In subsection (4), for the words from “or 161,” to “section 176” substitute “ , 161, 174D(4) or (5), or under section 114(3)(b) or (4)(b) as applied by section 174D ”.

• (3) In subsection (10)—

• (a) omit “111(4) or (6) or”, and

• (b) for “176” substitute “ 174D ”.

SCHEDULE 12

Market studies and decisions whether to make a reference under section 131

1

Before section 131 of the 2002 Act (power to make market investigation references) insert—

(130A) (1) Where the CMA is proposing to carry out its functions under section 5 in relation to a matter for the purposes mentioned in subsection (2), the CMA must publish a notice under this section (referred to in this Part as a “market study notice”). (2) The purposes are— (a) to consider the extent to which a matter in relation to the acquisition or supply of goods or services of one or more than one description in the United Kingdom has or may have effects adverse to the interests of consumers; and (b) to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects. (3) A market study notice shall, in particular, specify— (a) the matter in relation to which the CMA is proposing to carry out its functions under section 5; (b) the period during which representations may be made to the CMA in relation to the matter; and (c) the dates by which the CMA is required to comply with the requirements imposed on it by sections 131A and 131B.

2

After section 131 of that Act insert—

(131A) (1) This section applies to a case where the CMA has published a market study notice and— (a) the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or (b) a representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that such a reference should be made but the CMA is proposing not to make such a reference. (2) The CMA shall— (a) publish notice of the proposal concerned; and (b) consult the relevant persons about the proposal, in such manner as it considers practicable, before deciding whether to make a reference. (3) The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious. (4) For the purposes of subsection (2), a person is a “relevant person” if the CMA considers that its decision whether to make a reference is likely to have a substantial impact on the person's interests. (5) In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal. (6) In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to— (a) the restrictions imposed by the time-table for making the decision (see section 131B); and (b) any need to keep what is proposed, or the reasons for it, confidential. (131B) (1) Where the CMA has published a market study notice in a case to which section 131A applies, the CMA shall, within the period of 6 months beginning with the date on which it publishes the notice— (a) publish the notice under section 131A(2)(a); and (b) begin the process of consultation under section 131A(2)(b) (but the CMA need not complete the process within that period). (2) Subsection (3) applies where— (a) the CMA has published a market study notice; (b) no representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that a reference under section 131 should be made in relation to the matter specified in the notice; and (c) the CMA has decided not to make such a reference. (3) The CMA shall, within the period of 6 months beginning with the date on which it publishes the market study notice, publish notice of the decision not to make a reference. (4) Where the CMA has published a market study notice it shall, within the period of 12 months beginning with the date on which it publishes the notice, prepare and publish a report (referred to in this Part as a “market study report”) which sets out— (a) the findings of the CMA in relation to the matter specified in the notice; and (b) the action (if any) which the CMA proposes to take in relation to the matter. (5) In a case to which section 131A applies, the market study report shall, in particular, contain— (a) the decision of the CMA to make a reference under section 131 in relation to the matter specified in the market study notice, the decision to accept an undertaking under section 154 instead of making such a reference or (as the case may be) the decision otherwise not to make such a reference; (b) the CMA's reasons for the decision; and (c) such information as the CMA considers appropriate for facilitating a proper understanding of its reasons for the decision. (6) Where a market study report contains a decision of the CMA to make a reference under section 131 in relation to a matter, the CMA shall, at the same time as it publishes the report, make the reference. (7) This section is subject to section 140A (duty of Secretary of State to refer in public interest intervention cases). (131C) (1) The Secretary of State may by order amend section 131B so as to alter one or more of the following periods— (a) the period of 6 months mentioned in subsection (1) or (3) or any period for the time being mentioned in either of those subsections in substitution for that period; (b) the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period. (2) But no alteration may be made by virtue of subsection (1) which results in— (a) the period for the time being mentioned in subsection (1) or (3) exceeding 6 months; or (b) the period for the time being mentioned in subsection (4) exceeding 12 months. (3) Before making an order under this section the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

Market investigations and reports

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• (1) Section 137 of the 2002 Act (time-limits for market investigations and reports) is amended as follows.

• (2) In subsection (1), for “two years” substitute “ 18 months ”.

• (3) After subsection (2) insert—

(2A) The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so. (2B) An extension under subsection (2A) shall come into force when published under section 172. (2C) No more than one extension is possible under subsection (2A).

• (4) For subsection (3) substitute—

(3) The Secretary of State may by order amend this section so as to alter one or more of the following periods— (a) the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period; (b) the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.

• (5) For subsection (4) substitute—

(4) But no alteration shall be made by virtue of subsection (3) which results in— (a) the period for the time being mentioned in subsection (1) exceeding 18 months; or (b) the period for the time being mentioned in subsection (2A) exceeding 6 months.

Remedies implementation

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In section 138 of the 2002 Act (duty to remedy adverse effects), in subsection (2), after “shall,” insert “ within the period permitted by section 138A, ”.

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