Digital Markets, Competition and Consumers Act 2024

• (2) But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).

Schedule 3

1

Chapter 4 of Part 1 of CA 1998 (appeals before the Competition Appeal Tribunal etc) is amended as follows.

2

In the italic heading before section 47A, after “damage” insert “, or for declaratory relief”.

3

In section 47A (proceedings before the Tribunal: claims for damages etc), after subsection (3) insert—

(3A) This section also applies to a claim for a declaration or, in relation to Scotland, for a declarator which a person may make in respect of an infringement decision or an alleged infringement of the Chapter 1 prohibition or the Chapter 2 prohibition.

4

After section 47D insert—

(47DA) (1) A declaration granted by the Tribunal in proceedings under section 47A or collective proceedings has the same effect as a declaration granted by the High Court. (2) A declarator granted by the Tribunal in proceedings under section 47A or collective proceedings has the same effect as a declarator granted by the Court of Session. (3) In deciding whether to grant a declaration in proceedings under section 47A or collective proceedings, the Tribunal must apply the principles that the High Court would apply in deciding whether to grant a declaration. (4) In deciding whether to grant a declarator in proceedings under section 47A or collective proceedings, the Tribunal must apply the principles that the Court of Session would apply in deciding whether to grant a declarator. (5) The Tribunal may grant a declaration or declarator in proceedings under section 47A or collective proceedings whether or not any other remedy is claimed.

5

In the italic heading before section 47F, after “damage” insert “, or for declaratory relief,”.

6

• (1) Section 47F (further provision about claims in respect of loss or damage before a court or the Tribunal) is amended as follows.

• (2) In the heading, after “damage” insert “, or for declaratory relief,”.

• (3) In the text, after “damage” insert “, or for declarations or declarators,”.

7

• (1) In section 49 (further appeals from the Tribunal), subsection (1A) is amended as follows.

• (2) Omit the “or” at the end of paragraph (a).

• (3) After paragraph (b) insert

, or (c) as to the grant of a declaration or a declarator.

8

• (1) Schedule 8A (further provision about claims in respect of loss or damage before a court or the Tribunal) is amended as follows.

• (2) In the heading, after “damage” insert “, or for declaratory relief,”.

• (3) In paragraph 2 (competition law etc), for sub-paragraph (2) substitute—

(2) “Competition claim” means— (a) a claim in respect of loss or damage arising from an infringement of competition law (whatever the legal basis of the claim) which is made by or on behalf of— (i) the person who suffered the loss or damage, or (ii) a person who has acquired that person’s right to make the claim (whether by operation of law or otherwise), or (b) a claim for a declaration or a declarator in respect of an infringement of competition law.

• (4) In paragraph 9 (burden of proof where an overcharge is passed on to an indirect purchaser), for sub-paragraph (1) substitute—

(1) Sub-paragraph (2) applies where there is an overcharge as a result of an infringement of competition law and— (a) a competition claim within paragraph 2(2)(a) is made in respect of loss or damage which— (i) arises, directly or indirectly, from the overcharge, and (ii) was suffered by a person who acquired a product or service indirectly from the infringer (“the injured person”), or (b) a competition claim within paragraph 2(2)(b) is made in respect of the overcharge.

• (5) In paragraph 10 (burden of proof where an underpayment is passed on to an indirect provider), for sub-paragraph (1) substitute—

(1) Sub-paragraph (2) applies where there is an underpayment as a result of an infringement of competition law and— (a) a competition claim within paragraph 2(2)(a) is made in respect of loss or damage which— (i) arises, directly or indirectly, from the underpayment, and (ii) was suffered by a person who provided a product or service indirectly to the infringer (“the injured person”), or (b) a competition claim within paragraph 2(2)(b) is made in respect of the underpayment.

• (6) In paragraph 11 (burden of proof where an overcharge or underpayment is passed on by the claimant)—

• (a) in sub-paragraph (1), in paragraph (b) omit “loss or damage which arises, directly or indirectly, from”;

• (b) in sub-paragraph (3), for “the person who suffered the loss or damage” substitute “a person who suffered loss or damage arising directly or indirectly from the overcharge or underpayment”.

• (7) In paragraph 17 (time limits for bringing competition proceedings), in sub-paragraph (2), in paragraph (b), for “the”, in the first place it occurs, substitute “any”.

• (8) In paragraph 19 (beginning of limitation or prescriptive period), after sub-paragraph (6) insert—

(6A) This paragraph applies in respect of a competition claim within paragraph 2(2)(b) as if— (a) in sub-paragraph (2), paragraph (c) (but not the “, and” at the end of it) were omitted; (b) in sub-paragraph (3), paragraph (b) (and the “and” before it) were omitted; (c) sub-paragraph (4) were omitted.

• (9) In paragraph 21 (suspension during investigation by competition authority), in sub-paragraph (1) omit “in respect of loss or damage”.

• (10) In paragraph 24 (suspension of prescriptive period during period of disability: Scotland)—

• (a) in sub-paragraphs (1) and (2) for “injured person” substitute “relevant person”;

• (b) for sub-paragraph (4) substitute—

(4) In this paragraph, “relevant person” means— (a) in relation to a competition claim within paragraph 2(2)(a), a person who suffered the loss or damages that is the subject of the claim; (b) in relation to a competition claim within paragraph 2(2)(b), the pursuer.

• (11) In paragraph 42 (application of Schedule 8A), in sub-paragraph (1), for the words from “the claims and proceedings relate” to the end substitute

— (a) in respect of competition claims within paragraph 2(2)(a), the claim and proceedings relate to loss or damage suffered on or after 8 March 2017 as a result of an infringement of competition law that takes place on or after that date; (b) in respect of competition claims within paragraph 2(2)(b), the claim and proceedings relate to an infringement of competition law that takes place on or after 8 March 2017.

• (12) In paragraph 43 (application of Schedule 8A), in the words before paragraph (a), for “the relevant day” substitute “8 March 2017”.

• (13) Omit paragraph 44 (definition of “relevant day”).

9

In Schedule 4 to EA 2002 (Competition Appeal Tribunal: procedure), after paragraph 21A insert—

(21B) Tribunal rules may make provision in relation to the grant of declarations or declarators (including interim declarations or interim declarators) in proceedings under section 47A or 47B of the 1998 Act.

Schedule 4

1

Chapter 1 of Part 3 of EA 2002 (mergers: duty to make references) is amended as follows.

2

• (1) Section 23 (relevant merger situations) is amended as follows.

• (2) In subsection (1), in paragraph (b), for “£70 million” substitute “£100 million”.

• (3) In subsection (2)—

• (a) omit the “and” at the end of paragraph (a);

• (b) at the end insert

; and (c) the value of the turnover in the United Kingdom of— (i) the enterprise being taken over, or (ii) any other enterprise concerned, exceeds £10 million.

• (4) Before subsection (3) insert—

(2B) For the purposes of subsection (2)(c)(ii), any turnover of any other enterprise concerned that is also turnover of the enterprise being taken over is to be ignored.

• (5) Before subsection (5) insert—

(4C) For the purposes of this Part, a relevant merger situation has also been created if— (a) two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and (b) each of the conditions mentioned in subsections (4D) to (4F) is satisfied. (4D) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, in relation to the supply of goods or services of any description, at least 33 per cent of all the goods or (as the case may be) services of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom, would be supplied— (a) by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or (b) to that person or those persons, in connection with E or any other enterprise concerned with which E is under common ownership or common control. (4E) The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million. (4F) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, an enterprise within subsection (4G) would satisfy one or more of the following additional conditions— (a) the enterprise would be carried on by a body of persons corporate or unincorporate formed or recognised under the law of any part of the United Kingdom; (b) the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom; (c) the person, or persons, by whom the enterprise would be carried on supply goods or services to a person or persons in the United Kingdom in connection with the enterprise. (4G) The following enterprises are within this subsection— (a) any enterprise concerned other than— (i) E, or (ii) any other enterprise with which E is under common ownership or common control; (b) any enterprise concerned that, as a result of the enterprises concerned ceasing to be distinct enterprises, a person or group of persons may be treated as having brought under their control by virtue of section 26(4).

• (6) In subsection (5), after “(4)” insert “, or of 33 per cent mentioned in subsection (4D),”.

• (7) In subsection (6), for “and (4)” substitute “, (4), (4D) and (4F)(c)”.

3

• (1) Section 28 (turnover test) is amended as follows.

• (2) In subsection (5)—

• (a) in paragraph (a)—

• (i) for “sum” substitute “sums”;

• (ii) after “section 23(1)(b)” insert “, (2)(c) and (4E)”;

• (b) in paragraph (b), for “sum is” substitute “sums are”.

• (3) In subsection (6)—

• (a) after “section 23(1)(b)” insert “, (2)(c) or (4E)”;

• (b) for “the sum” substitute “any of the sums”.

4

In Chapter 2 of Part 3 of EA 2002 (mergers: public interest cases), in section 58A (construction of consideration specified in section 58(2C)), in subsection (1), for “section 58 and this section” substitute “this Part”.

5

Chapter 3 of Part 3 of EA 2002 (mergers: other special cases) is amended as follows.

6

• (1) Section 59 (intervention by Secretary of State in special public interest cases) is amended as follows.

• (2) For subsections (3) and (3A) substitute—

(3) For the purposes of this Part, a special merger situation has been created if— (a) two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; (b) no relevant merger situation has been created; and (c) immediately before the enterprises concerned ceased to be distinct, one or more of the conditions mentioned in subsections (3C) to (3F) were satisfied.

• (3) After subsection (3D) insert—

(3E) The condition mentioned in this subsection is that a relevant merger situation would have been created if, in subsection (1) of section 23— (a) the “and” at the end of paragraph (a) were omitted; (b) for paragraph (b) there were substituted— (b) one of the enterprises concerned is a media enterprise or a newspaper enterprise; and (c) after that paragraph there were inserted— (c) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million. (3F) The condition mentioned in this subsection is that a relevant merger situation would have been created if, for section 23(2)(c), there were substituted— (c) one of the enterprises concerned is a media enterprise or a newspaper enterprise.

• (4) In subsection (5), after “deciding” insert “whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24,”

• (5) In subsection (6A), for the words from “amend” to the end substitute

— (a) substitute a new sum for the sum for the time being mentioned in subsection (3E)(c); (b) amend the conditions mentioned in subsections (3C), (3D), (3E)(b) and (3F).

7

• (1) Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows.

• (2) In paragraph 2 (modifications of section 23), in paragraph (a), in the substituted text, for “£70 million” substitute “£100 million”.

• (3) In paragraph 3 (modifications of section 28), for paragraphs (b) and (c) substitute—

(b) in subsection (5)— (i) in the words before paragraph (a), for “The CMA shall” there were substituted “The CMA and the Gas and Electricity Markets Authority must each”; (ii) in paragraph (a), for “the sums for the time being mentioned in section 23(1)(b), (2)(c) and (4E)” there were substituted “the sum for the time being mentioned in section 23(1)(b)”; (iii) in paragraph (b), for “sums are” there were substituted “sum is”; (c) in subsection (6)— (i) for “section 23(1)(b), (2)(c) and (4E)” there were substituted “paragraph 2(a) of Schedule 5A”; (ii) for “sums” there were substituted “sum”.

8

Chapter 5 of Part 3 of EA 2002 (mergers: supplementary) is amended as follows.

9

• (1) Section 123 (power to alter share of supply test) is amended as follows.

• (2) In the heading, for “share of supply test” substitute “conditions for a relevant merger situation”.

• (3) In subsection (2), at the end insert—

(c) to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.

• (4) After subsection (3) insert—

(3A) In exercising the power under subsection (1) to amend or replace the condition mentioned in subsection (4D) or (4E) of section 23 or any condition which for the time being applies instead of it, the Secretary of State must, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength that at least one of the enterprises concerned would have had if the enterprises concerned had not ceased to be distinct enterprises.

10

In section 130 (index of defined expressions), in the appropriate place insert—

Media enterprise	Section 58A(1)

.

Schedule 5

1

Chapter 1 of Part 3 of EA 2002 (mergers: duty to make references) is amended as follows.

2

• (1) Section 22 (duty to make references in relation to completed mergers) is amended as follows.

• (2) After subsection (1) insert—

(1A) The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(2), to accept a fast-track reference request.

• (3) In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

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

3

• (1) Section 33 (duty to make references in relation to anticipated mergers) is amended as follows.

• (2) After subsection (1) insert—

(1A) The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(3), to accept a fast-track reference request.

• (3) In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

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

4

• (1) Section 34ZA (time-limits for decisions about references) is amended as follows.

• (2) In subsection (1)—

• (a) in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”;

• (b) in paragraph (a), for “the section” substitute “the subsection”.

• (3) After that subsection insert—

(1A) In carrying out its function of making a reference under section 22(1A) or 33(1A), the CMA must, within the initial period, inform the persons carrying on the enterprises concerned by notice of the making of the reference.

• (4) In subsection (2), in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

5

In section 34ZB (extension of time-limits), in subsection (1), for “mentioned in” substitute “for the purposes of”.

6

In section 34ZC (sections 34ZA and 34ZB: supplementary), in subsection (1), for “period mentioned in” substitute “initial period for the purposes of”.

7

After section 34ZC (sections 34ZA and 34ZB: supplementary) insert—

(34ZD) (1) Subsection (2) applies where the following conditions are met— (a) arrangements or proposed arrangements might have resulted or might result in the creation of a relevant merger situation (the “arrangements concerned”), (b) no reference has been made under section 22 or 33 in respect of the arrangements concerned, and (c) the CMA has not informed the persons carrying on the enterprises concerned of a decision that the duty to make a reference under section 22(1) or 33(1) does not apply in respect of those arrangements. (2) The persons carrying on the enterprises concerned may make a fast-track reference request to the CMA at any time before the end of the initial period (whether or not that period has begun). (3) In this section and in sections 34ZE and 34ZF, “fast-track reference request” means a request that the CMA makes a reference under section 22(1A) or 33(1A) in relation to the arrangements concerned. (34ZE) (1) This section applies where a fast-track reference request is made and not withdrawn. (2) Where the fast-track reference request is made before the beginning of the initial period, the CMA may, at any time before the beginning of that period, reject the request. (3) Where the CMA has not rejected the fast-track reference request in accordance with subsection (2), the CMA must, within the decision period, decide whether to accept the request in accordance with section 34ZF or reject the request. (4) Where the CMA accepts or rejects a fast-track reference request, the CMA must notify the persons carrying on the enterprises concerned that the request has been accepted or rejected. (5) In this section— - “decision period” means, in relation to the arrangements concerned— in a case where the initial period has not begun, that period, or in a case where the initial period has begun, the period beginning with the day on which the fast-track reference request is made and ending at the end of the initial period; - “initial period” has the meaning given by section 34ZA(3). (34ZF) (1) The CMA may accept a fast-track reference request only if the condition in subsection (2) or (3) is met. (2) The condition in this subsection is that, in relation to the arrangements concerned— (a) the CMA believes that it is or may be the case that a relevant merger situation has been created, and (b) the CMA would not be prevented from making a reference under section 22(1) by reason of section 22(3). (3) The condition in this subsection is that, in relation to the arrangements concerned— (a) the CMA believes that it is or may be the case that, if carried into effect, the arrangements will result in the creation of a relevant merger situation, and (b) the CMA would not be prevented from making a reference under section 33(1) by reason of section 33(3). (4) In deciding whether to accept a fast-track reference request under subsection (2) or (3), the CMA must have regard, in particular, to— (a) whether the arrangements concerned raise any consideration specified in section 58; (b) whether a special intervention notice (see section 59(2)) is in force in relation to the arrangements. (5) Where the CMA decides to accept a fast-track reference request the duties to make references under sections 22(1) and 33(1) do not apply, and accordingly the CMA may not make any reference under those provisions in respect of the arrangements concerned (but see the duties under sections 22(1A) and 33(1A)).

8

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

• (2) In subsection (3), after “section 38” insert “on a reference under section 22(1) or 33(1)”.

• (3) After that subsection insert—

(3A) The CMA may extend, by no more than 11 weeks, the period within which a report under section 38 on a reference under section 22(1A) or 33(1A) is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.

• (4) In subsection (7), after “(3)” insert “, (3A)”.

9

• (1) Section 40 (section 39: supplementary) is amended as follows.

• (2) In subsection (4), after “section 39(3)” insert “or (3A)”.

• (3) In subsection (5), before “or (4)” insert “, (3A)”.

10

• (1) In Chapter 3 of Part 3 of EA 2002 (mergers: other special cases), Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows.

• (2) In paragraph 1 (general modifications), in sub-paragraph (2), for the words after “include” substitute

— (a) a reference made under a subsection of that section; (b) a reference treated as made under that section.

• (3) For paragraph 5 (time limits for decisions about references) substitute—

(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. (5A) Chapter 1 has effect as if sections 34ZD to 34ZF (fast-track reference requests) were omitted.

• (4) After paragraph 7 insert—

(7A) Section 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.

11

• (1) In Chapter 4 of Part 3 of EA 2002 (mergers: enforcement), section 73 (undertakings in lieu of references under section 22 or 33) is amended as follows.

• (2) In the heading, for “section 22, 33” substitute “section 22(1), 33(1)”.

• (3) In subsection (1), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

12

Chapter 5 of Part 3 of EA 2002 (mergers: supplementary) is amended as follows.

13

In section 104 (certain duties of relevant authorities to consult), in subsection (6), in the definition of “relevant decision”, in paragraph (a)—

• (a) in sub-paragraph (i), for “section 22, 33” substitute “section 22(1), 33(1)”;

• (b) in sub-paragraph (ii), for “such a reference” substitute “a reference under section 22, 33, 68B or 68C”.

14

• (1) Section 107 (further publicity requirements) is amended as follows.

• (2) In subsection (1)—

• (a) in paragraph (a), for “section 22, 33” substitute “section 22(1), 33(1)”;

• (b) after paragraph (aa) insert—

(aaa) any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;

.

• (3) In subsection (6), after “in relation to” insert

— (a) any decision published under subsection (1)(aaa), or (b)

.

15

In section 130 (interpretation), in the appropriate place insert—

Fast-track reference request	section 34ZD(3)

.

Schedule 6

1

Part 3 of EA 2002 (mergers) is amended as follows.

2

• (1) Section 22 (duty to make references in relation to completed mergers) is amended as follows.

• (2) In subsection (3)(c) omit “or 68B or 68C”.

• (3) In subsection (7)(a) omit “, 68B or 68C”.

3

In section 33(3) (circumstances in which references in relation to anticipated mergers may not be made), in paragraph (c) omit “or 68B or 68C”.

4

In section 68B (further duty to make references in relation to completed mergers), for subsection (3) substitute—

(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.

5

In section 68C (further duty to make references in relation to anticipated mergers), for subsection (3) substitute—

(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.

6

• (1) In section 72 (initial enforcement orders: completed or anticipated mergers), subsection (6) is amended as follows.

• (2) For the words before paragraph (a) substitute “So far as made in relation to a reference under section 22, 33, 68B or 68C, an order under this section which has not previously ceased to be in force and which has not been adopted under paragraph 2 of Schedule 7 ceases to be in force in relation to the reference concerned—”.

• (3) In paragraph (a), in the words before sub-paragraph (i) omit “under section 22, 33, 68B or 68C”.

7

• (1) Section 73 (undertakings in lieu of references under section 22, 33, 68B or 68C) is amended as follows.

• (2) For subsection (3B) substitute—

(3B) The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing— (a) the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), or (b) any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

• (3) In subsection (3C), after “to the prejudice” insert “and any adverse effects resulting from it”.

8

In section 73A (time-limits for consideration of undertakings), in subsection (2)(a), after “73(2)” insert “or (3B)”.

9

• (1) Section 74 (effect of undertakings under section 73) is amended as follows.

• (2) In subsection (1)—

• (a) in the words before paragraph (a), for “, 45, 68B or 68C” substitute “or 45”;

• (b) in paragraph (a), for “section 73” substitute “section 73(2)”.

• (3) After subsection (1) insert—

(1A) The relevant authority may not make a reference under section 45, 68B or 68C in relation to the creation of a relevant merger situation if— (a) the CMA has accepted an undertaking or group of undertakings under section 73(3B), and (b) the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

• (4) In subsection (2), for “Subsection (1) does not” substitute “Subsections (1) and (1A) do not”.

10

• (1) Section 75 (order-making power where undertakings under section 73 not fulfilled etc) is amended as follows.

• (2) In subsection (1), in paragraph (a), for “section 73” substitute “section 73(2) or (3B)”.

• (3) In subsection (2), after “73(2)” insert “or (3B) (as the case may be)”.

• (4) For subsection (3) substitute—

(3A) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to— (a) in relation to the purpose mentioned in section 73(2), the substantial lessening of competition mentioned in that subsection and any adverse effects resulting from it;. (b) in relation to the purpose mentioned in section 73(3B), the prejudice mentioned in that subsection and any adverse effects resulting from it. (3B) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

11

• (1) Section 79 (sections 77 and 78: further interpretative provisions) is amended as follows.

• (2) In subsection (1), for paragraphs (c) to (e) substitute—

(c) the report of the CMA under that section contains the decision that— (i) in relation to a reference under section 22 or 33, there is not an anti-competitive outcome, or (ii) in relation to a reference under section 68B or 68C, there is not a prejudicial outcome; (d) the report of the CMA under that section contains the decision that— (i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or (ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and the CMA has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84; (e) the report of the CMA under that section contains the decision that— (i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or (ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and the CMA has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.

• (3) After subsection (5) insert—

(5A) References in subsection (1) to a prejudicial outcome are to a prejudicial outcome within the meaning of section 35 or 36 as those sections have effect by virtue of paragraphs 6 and 7 of Schedule 5A.

12

• (1) Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows.

• (2) After paragraph 1 insert—

(1A) Section 22(7)(a) (meaning of “the decision-making authority”) has effect as if after “section 33” there were inserted “, 68B or 68C”.

• (3) In paragraph 5 (time limits for decisions about references)—

• (a) for paragraph (b) substitute—

(b) the reference to section 22(3) were to section 68B(3);

;

• (b) for paragraph (d) substitute—

(d) the reference to section 33(3) were to section 68C(3).

13

• (1) Schedule 16 to the Energy Act 2023 (mergers of completed energy network enterprises) is amended as follows.

• (2) Omit paragraphs 5 and 6 (amendments to sections 22 and 33 of EA 2002).

• (3) Omit paragraph 14(2) (amendment to section 74(1) of EA 2002).

Schedule 7

Introduction

1

In EA 2002, Part 3 (mergers) is amended as follows.

Prohibition on newspaper enterprise mergers involving foreign powers

2

After Chapter 3 insert—

(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, (c) the head or senior members of a foreign government in their private capacity, (d) an agency or authority of a foreign government, or of part of a foreign government, (e) the head or senior members of an agency or authority of a foreign government, or of part of a foreign government, in their private capacity, (f) an authority responsible for administering the affairs of an area within a foreign country or territory, or persons exercising the functions of such an authority, (g) a political party which is a governing political party of a foreign government, or (h) the officers of a political party, which is a governing political party of a foreign government, in their private capacity. (2) A political party is a governing political party of a foreign government if persons holding political or official posts in the foreign government or part of the foreign government— (a) hold those posts as a result of, or in the course of, their membership of the party, or (b) in exercising the functions of those posts, are subject to the direction or control of, or significantly influenced by, the party. (3) In this section— - “foreign country or territory” means a country or territory outside the United Kingdom, the Channel Islands, the Isle of Man or the British Overseas Territories; - “foreign government” means the government of a foreign country or territory; - a “government” includes persons exercising the functions of a government; - “territory” includes the constituent territories of a federal state. (70F) (1) For the purposes of this Chapter, section 44(10) is to be read as if the definition of “newspaper” included a news publication circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom on any periodic basis. (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.

3

After Schedule 6 insert—

Schedule 6A (1) (1) Sections 23 to 29 apply for the purposes of Chapter 3A of Part 1, subject to the following modifications. (2) Section 23 is to be read as if— (a) in subsection (1), for the amount in paragraph (b), there were substituted “£2 million”; (b) in subsection (9), for paragraphs (a) and (b), there were substituted— (a) in relation to the giving of a foreign state intervention notice, the time when the notice is given; (b) in relation to the giving of a report by the CMA under section 70B, the time of the giving of the report. (3) Section 24 is to be read as if— (a) for subsection (1)(a) there were substituted— (a) the two or more enterprises ceased to be distinct enterprises before the day on which— (i) in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or (ii) in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B, and did so not more than four months before that day; or (b) in subsection (1)(b), after “distinct enterprises” there were inserted “, including facts about whether or the extent to which a foreign power is able to control or influence the policy of a person carrying on a newspaper enterprise as a result of the enterprises ceasing to be distinct enterprises,”; (c) the reference to the CMA in subsection (2)(a) included a reference to the Secretary of State; (d) for subsection (2)(b) there were substituted— (b) it is given to the Secretary of State or the CMA more than four months before the day on which— (i) in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or (ii) in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B; or (c) the facts are made public more than four months before the day on which— (i) in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or (ii) in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B. (4) Section 25 is to be read as if— (a) subsections (4) and (5) were omitted; (b) the powers to extend time-limits under section 25 were not exercisable by the CMA before the giving of a foreign state intervention notice by the Secretary of State. (5) Section 26 is to be read as if— (a) in subsection (3)— (i) “materially” were omitted; (ii) for “may, for the purposes of subsections (1) and (2), be treated” there were substituted “is to be treated, for the purposes of subsections (1) and (2),”; (b) for subsection (4) there were substituted— (4) For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, where a foreign power is already able to control or influence the policy of a person carrying on a newspaper enterprise to some extent, the foreign power is to be treated as bringing the newspaper enterprise under its control if anything is done which results in the foreign power being able to control or influence the policy of that person to a greater extent (whether by virtue of acquiring more shares or voting rights in the person, directly or indirectly, or otherwise). (6) Section 27 is to be read as if— (a) references to the “decision-making authority” were to “the CMA or the Secretary of State”; (b) in subsection (5), for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”. (7) Section 28 is to be read as if, in subsection (4), the reference to the “decision-making authority” were to “the CMA or the Secretary of State”. (8) Section 29 is to be read as if— (a) in subsection (1)— (i) the reference to the “decision-making authority” were to “the CMA or the Secretary of State”; (ii) for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”; (b) in subsection (2)(a)(i) “materially” were omitted; (c) in subsection (2)(a)(ii), for “degree” there were substituted “extent”; (d) subsection (2)(b) and (3) were omitted. (2) (1) The Enterprise Act 2002 (Anticipated Mergers) Order 2003 applies for the purposes of Chapter 3A of Part 1, subject to the following modifications. (2) In Article 3, the words before paragraph (a) are to be read as if, for “in relation to references and notices”, there were substituted “for the purposes of Chapter 3A of Part 1 of the Act”. (3) Article 3(a) is to be read as if— (a) in the substituted version of section 27(5), for “a reference” there were substituted “deciding whether or when a foreign state news paper merger situation will be created”; (b) the substituted version of section 27(6)(a)(i), for “the reference” there were substituted “the foreign state intervention notice relating to the situation”. (4) Article 3(b) is to be read as if— (a) in the substituted section 29(2)(a)(i), “materially” were omitted; (b) in the substituted section 29(2)(a)(ii), for “degree” there were substituted “extent”; (c) in the substituted section 29(4), for “the reference” there were substituted “the foreign state intervention notice”. Schedule 6B (1) (1) A foreign power is able to control or influence the policy of a person for the purposes of section 70A if one or more of the following conditions is met. (2) Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person. (3) Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person. (4) Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person. (5) Condition 4 is that the foreign power has the right or ability to direct, control or influence to any extent, the person’s policy or activities (in whole or in part, and whether directly or indirectly), despite not meeting condition 1, 2 or 3. (6) Condition 5 is that— (a) the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed, would, if they were a foreign power, meet one or more of conditions 1 to 4 (in their capacity as such) in relation to the person, and (b) the foreign power has the right or ability to direct, control or influence to any extent the activities of that trust or entity (in whole or in part, and whether directly or indirectly), or has any other interest in, or right over or in relation to, the trust or entity, or any of the trustees of the trust or the members of the entity, whether directly or indirectly. (2) In this Schedule, “officer”— (a) in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity; (b) in relation to a partnership, means a partner, a person purporting to act as a partner or a person concerned in the management or control of the partnership or who purports to act in the capacity of a person so concerned; (c) in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned. (3) This Part makes provision about the interpretation of this Schedule. (4) If a foreign power holds a share or right jointly with another person (whether or not a foreign power), each of those persons is to be taken to hold that share or right. (5) (1) If shares or rights held by a foreign power and shares or rights held by another person (whether or not a foreign power) are the subject of a joint arrangement between those persons, each of those persons is to be taken to hold the combined shares or rights of both persons. (2) A “joint arrangement” is an arrangement between the holders of shares (or rights) that they will exercise all or substantially all the rights conferred by their respective shares (or rights) jointly in a way that is pre-determined by the arrangement. (3) For the meaning of “arrangement”, see paragraph 12. (6) (1) In relation to a person that has a share capital, a reference to holding any of the shares in that person is to holding any shares comprised in the issued share capital of that person. (2) In relation to a person that does not have a share capital, a reference to holding any of the shares in that person is to holding a right to share to any extent in the capital or, as the case may be, profits of that person. (7) (1) A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters. (2) In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights, a reference to exercising voting rights in the person is to be read as a reference to exercising rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company. (8) In applying this Schedule, voting rights in a person held by the person itself are to be disregarded. (9) (1) A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person— (a) holds the share in question, or (b) is part of a chain of persons— (i) each of which (other than the last) has any stake in the person immediately below it in the chain, and (ii) the last of which holds the share. (2) A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person— (a) holds that right, or (b) is part of a chain of persons— (i) each of which (other than the last) has any stake in the person immediately below it in the chain, and (ii) the last of which holds that right. (3) For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if— (a) A holds any shares or voting rights in B, (b) A is a member of B and has the right to appoint or remove an officer of B, (c) A is a member of B and controls alone, or pursuant to an agreement with other shareholders or members, any of the voting rights in B, or (d) A has the right or ability to control or influence B to any extent, despite not being within paragraph (a), (b) or (c). (10) A share held by a person as a nominee for another is to be treated as held by the other (and not by the nominee). (11) (1) Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it). (2) A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only— (a) by that person, (b) in accordance with that person’s directions or instructions, or (c) with that person’s consent or concurrence. (12) (1) For the purposes of this Schedule, “arrangement” includes— (a) any scheme, agreement or understanding, whether or not it is legally enforceable, and (b) any convention, custom or practice of any kind. (2) But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise). (13) (1) Rights that are exercisable only in certain circumstances are to be taken into account only— (a) where the circumstances have arisen, and for so long as they continue to obtain, or (b) when the circumstances are within the control of the person having the rights. (2) But rights that are exercisable by an administrator or by creditors while a person is in relevant insolvency proceedings are not to be taken into account even while the person is in those proceedings. (3) “Relevant insolvency proceedings” means— (a) administration within the meaning of the Insolvency Act 1986, (b) administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or (c) proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor. (4) Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account. (14) Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person— (a) where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and (b) where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests. (15) (1) The Secretary of State may by regulations make provision— (a) to change (by increasing or decreasing) the proportion of shares or rights which a foreign power must hold in a person carrying on a newspaper enterprise, whether directly or indirectly, in order for the foreign power to be able to control or influence the policy of a person for the purposes of section 70A; (b) to change (by increasing or decreasing) the proportion of shares or rights which is to be held by persons in a chain of persons for the purposes of determining whether shares or rights are held indirectly; (c) about assumptions which are to be made when determining whether a foreign power is able to control or influence the policy of a person, including assumptions framed by reference to the ownership of shares or voting rights by any person; (d) about the extent to which a foreign power needs to be able to control or influence the policy of a person in order to control or influence that policy for the purposes of section 70A, including provision about a foreign power that is already able to control or influence the policy of a person to some extent being able to control or influence that policy to a greater extent; (e) to change or supplement Part 1 of this Schedule so as to include circumstances (for example, circumstances involving more complex structures) that give a foreign power a level of control or influence in relation to the policy of a person broadly similar to the level of control or influence given by the conditions in paragraph 1; (f) in consequence of any provision made by virtue of paragraph (e), to change or supplement Part 2 of this Schedule so that circumstances specified in that Part in which a person is to be regarded as holding an interest in another person correspond to any of the conditions in paragraph 1, or would do so but for the extent of the interest. (2) The provision that may be made under this paragraph, read with section 124(2)(a), includes— (a) different provision for different descriptions of foreign power, and (b) different provision for different persons or descriptions of person in a chain of persons. (3) Regulations under this paragraph may, among other things— (a) confer a discretion on the CMA; (b) make provision having effect on or after 13 March 2024.

Further amendments

4

• (1) In section 86 (enforcement orders: general provisions), in subsection (6), after “section” insert “70C,”.

• (2) In section 88 (contents of certain enforcement orders), in subsection (1), after “section” insert “70C, ”.

• (3) In section 94(8) (rights to enforce certain orders)—

• (a) after “made by the Secretary of State under” insert “section 70C(2),”;

• (b) for “paragraph 2 of that Schedule” substitute “paragraph 2 of Schedule 7”.

• (4) In section 107 (further publicity requirements)—

• (a) in subsection (3), after paragraph (g) insert—

(ga) any foreign state intervention notice given by the Secretary of State; (gb) any report of the CMA under section 70B which the Secretary of State has received;

;

• (b) after subsection (11) insert—

(12) The Secretary of State must publish any report of the CMA under section 70B which the Secretary of State has received within the period of 7 days beginning with the day on which the Secretary of State receives the report.

• (5) In section 109 (attendance of witnesses and production of documents etc), in subsection (A1)(b), at the end insert “or a foreign state intervention notice under section 70A”.

• (6) In section 110A (restriction on powers to impose penalties under section 110), after subsection (8) insert—

(8A) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a foreign state intervention notice under section 70A, the relevant day is the day when the matter to which the notice relates is finally determined under Chapter 3A (see section 70F).

• (7) In section 118 (excisions from reports), in subsection (1)—

• (a) omit the “or” at the end of paragraph (aa), and

• (b) at the end of paragraph (b) insert

, or (c) a report of the CMA under section 70B.

• (8) In section 120 (review of decisions under Part 3), in subsection (1A), after paragraph (a) insert—

(aa) a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;

.

• (9) In section 124 (orders and regulations under Part 3)—

• (a) in subsection (3)—

• (i) after “59(6A)” insert “, 70G”;

• (ii) after “above)” insert “, or paragraph 15 of Schedule 6B,”;

• (b) in subsection (5), after “65(3)),” insert “70C”;

• (c) after subsection (6) insert—

(6A) A statutory instrument containing regulations under section 70G or paragraph 15 of Schedule 6B may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

;

• (d) in subsection (10), after “58(3)” insert “or 70G, or paragraph 15 of Schedule 6B”.

• (10) In section 127 (associated persons), in subsection (1)—

• (a) omit the “and” at the end of paragraph (aa), and

• (b) after that paragraph insert—

(ab) for the purposes of section 70A(3);

.

• (11) In section 129 (other interpretation provisions), in subsection (1), at the appropriate place insert—

• “foreign state intervention notice” means a notice under section 70A(1);
• “foreign state newspaper merger situation” is to be interpreted in accordance with section 70A(3);

.

• (12) In the table in section 130 (index of defined expressions), at the appropriate place insert—

Foreign state intervention notice	Section 70A(1)
Foreign state newspaper merger situation	Section 70A(3)

• (13) In Schedule 8 (provision that may be contained in certain enforcement orders), in paragraph 20A (newspaper mergers), after sub-paragraph (1) insert—

(1A) This paragraph also applies in relation to an order under section 70C(2) (order to prevent foreign control of a newspaper enterprise).

• (14) In Schedule 10 (procedural requirements for certain enforcement undertakings and orders)—

• (a) in paragraph 1(b), for “section 75” substitute “section 70C, 75”;

• (b) in paragraph 6(b), for “section 75” substitute “section 70C, 75”.

Schedule 8

1

Part 4 of EA 2002 (market studies and market investigations) is amended as follows.

2

• (1) Section 131B (market studies and the making of decisions to refer: time-limits) is amended as follows.

• (2) In subsection (4), in paragraph (b), after “proposes to take” insert “, or has taken,”.

• (3) In subsection (5), in paragraph (a), for “section 154 instead of” substitute “section 154A instead of, or in addition to,”.

3

• (1) Section 133A (functions to be exercised by CMA groups) is amended as follows.

• (2) In subsection (1), after paragraph (b) insert—

(ba) section 154A, so far as relating to undertakings in lieu of a report;

.

• (3) In subsection (2), before paragraph (a) insert—

(za) section 154A, so far as relating to undertakings in lieu of a report;

.

4

In section 136 (investigations and reports on market investigation references), in subsection (2), after paragraph (a) insert—

(aa) any decision of the CMA under section 154A to accept an undertaking partially in lieu of a report;

.

5

• (1) Section 139 (public interest intervention by the Secretary of State) is amended as follows.

• (2) In subsection (1A), in paragraph (a), for “under section 154” substitute “fully in lieu of a reference under section 154A”.

• (3) In subsection (1B), in paragraph (a), for “under section 154” substitute “fully in lieu of a reference under section 154A”.

• (4) In subsection (2), in paragraph (a), in sub-paragraph (i), for “undertaking under section 154 instead of making a reference under section 131” substitute “undertaking in lieu of a reference under section 154A”.

• (5) In subsection (4C), for “154” substitute “154A”.

6

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

• (2) In subsection (5), in paragraph (za), for “under section 154” to the end substitute “fully in lieu of a reference under section 154A”.

• (3) In subsection (6A), for “154” substitute “154A”.

7

In section 150 (power of veto of Secretary of State), in subsection (A1) for “under section 154” substitute “in lieu of a reference under section 154A”.

8

For section 154 (and the italic heading immediately before it) substitute—

(154A) (1) This section applies where— (a) no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference, (b) a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or (c) a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published. (2) The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)— (a) any adverse effect on competition concerned, or (b) any detrimental effect on customers so far as— (i) it has resulted from the adverse effect on competition, or (ii) it may be expected to result from the adverse effect on competition. (3) An undertaking under this section is known as— (a) an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b); (b) an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c). (4) The CMA may accept— (a) undertakings in lieu of a reference either— (i) instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or (ii) in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”); (b) undertakings in lieu of a report either— (i) instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or (ii) in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”). (5) In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to— (a) the adverse effect on competition concerned, and (b) any detrimental effects on customers so far as resulting from the adverse effect on competition. (6) In accepting an undertaking under this section, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned. (7) Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking). (8) An undertaking under this section— (a) comes into force when accepted; (b) may be varied or superseded by another undertaking; (c) may be released by the CMA. (9) The CMA must, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section. (10) This section is subject to sections 150 and 155.

9

• (1) Section 155 (undertakings in lieu: procedural requirements) is amended as follows.

• (2) In subsection (1), for “154” substitute “154A”.

• (3) For subsection (3) substitute—

(3A) The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.

• (4) In subsection (10), for “154” substitute “154A”.

10

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

• (2) In the heading, for “under section 154” substitute “in lieu”;

• (3) In subsection (A1)—

• (a) in paragraph (a), for “154” substitute “154A”;

• (b) in paragraph (b)—

• (i) for “the” in the first place it occurs substitute “any”;

• (ii) for “the same as the” substitute “a”.

• (4) In subsection (1)—

• (a) in paragraph (a), for “under section 154” substitute “in lieu of a reference under section 154A”;

• (b) omit the “and” after paragraph (a);

• (c) after paragraph (a) insert—

(ab) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and

.

• (5) In subsection (3), in the words before paragraph (a), for “154” substitute “154A”.

• (6) After subsection (3) insert—

(4) Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate. (5) Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report. (6) Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing— (a) the CMA’s decision to accept the undertaking, (b) the reasons for the decision, and (c) such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision. (7) For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).

11

After section 156 insert—

.

12

After section 158 insert—

.

13

• (1) Section 162 (duty of CMA to monitor the carrying out of undertakings and orders: Part 4) is amended as follows.

• (2) In subsection (4), in paragraphs (a) and (b), for “154” substitute “154A”.

• (3) In subsection (8), in the definition of “enforcement undertaking”, for “154” substitute “154A”.

14

In section 169(6) (certain duties of relevant authorities to consult: Part 4), in paragraph (a)(ia) of the definition of “relevant decision”, for “under section 154” to the end substitute “in lieu of a reference under section 154A”.

15

• (1) Section 174C (section 174B: supplementary provision) is amended as follows.

• (2) In subsection (3), in paragraph (b), for “under section 154 instead of making such a reference” substitute “fully in lieu of a reference under section 154A”.

• (3) In subsection (5), for “154” substitute “154A”.

16

In section 183 (interpretation: Part 4), in subsection (3), in paragraph (a)—

• (a) omit the “or” at the end of sub-paragraph (iii);

• (b) after that sub-paragraph insert—

(iiia) the CMA has accepted an undertaking fully in lieu of a report under section 154A; or

.

17

In Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (the CMA), in Part 2 (the CMA Board), in paragraph 29 (delegation), in sub-paragraph (2)(e), for “under section 154” substitute “in lieu of a reference under section 154A”.

Schedule 9

1

Part 4 of EA 2002 (market studies and market investigations) is amended as follows.

2

• (1) Section 133A (functions to be exercised by CMA groups) is amended as follows.

• (2) In subsection (1)—

• (a) in paragraph (a), for “138B” substitute “137”;

• (b) after that paragraph insert—

(aa) sections 138 to 138B so far as relating to an adverse effect on competition in respect of which the CMA is required to take action in accordance with section 138(2) within the period permitted by section 138A(1);

;

• (c) after paragraph (f) insert—

(fa) section 161C;

.

• (3) In subsection (2), after paragraph (c) insert—

(ca) section 162B;

.

3

• (1) Section 138A (time-limits for discharging duty under section 138) is amended as follows.

• (2) Before subsection (1) insert—

(A1) Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA— (a) has begun an implementation trial under section 161C, or (b) considers that it is not reasonably practicable to discharge its duty under section 138(2) in accordance with subsection (1) as a result of such an implementation trial in respect of another adverse effect on competition. (A2) Subsection (1) applies in relation to any other adverse effect on competition. (A3) Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).

• (3) In subsection (1), at the beginning insert “Where this subsection applies,”.

• (4) In subsection (2), after “discharged” insert “in accordance with subsection (1)”.

4

After section 161A (acceptance of enforcement undertakings: Part 4) (inserted by paragraph 16 of Schedule 11) insert—

(161B) (1) This section and sections 161C to 161E make provision in relation to the acceptance of undertakings and making of orders by a relevant authority on a trial basis for the purpose of assessing the effectiveness of qualifying remedial action (and the acceptance of undertakings and making of orders on that basis is referred to in this Part as an “implementation trial”). (2) In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State. (3) In this Part— - “implementation trial measure” means an undertaking accepted, or order made, under section 161C (and references to the imposition of such a measure are to be read as the acceptance of an undertaking or the making of an order, as the case may be); - “implementation trial period” means, in relation to an implementation trial measure, the period—beginning with the day on which the relevant authority begins the implementation trial, andending with the last day on which the implementation trial measure is to have effect (see subsections (4) and (5)); - “qualifying remedial action” means remedial action in respect of—a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), orany other matter specified in regulations made by the Secretary of State; - “relevant adverse effect” means—where the relevant authority is the CMA, an adverse effect on competition identified in the report mentioned in section 138(1);where the relevant authority is the Secretary of State—an adverse effect on competition identified in the report mentioned in section 146(1);an effect adverse to the public interest identified in the report mentioned in section 146A(1); - “remedial action” means an action—where the relevant authority is the CMA, to be taken in accordance with section 138(2) or section 162A(5);where the relevant authority is the Secretary of State, to be taken in accordance with section 147(2) or 147A(2) (as the case may be). (4) The last day on which an implementation trial measure is to have effect is the earlier of— (a) the day specified under section 161D(5)(b)(ii), and (b) the day on which action is taken under section 138(2), 147(2) or 147A(2) (as the case may be) in relation to the relevant adverse effect which the relevant authority considers concerns the same qualifying matter. (5) But where— (a) an implementation trial measure is imposed in accordance with this section, and (b) the CMA extends, under section 138A(3), the period within which its duty under section 138(2) is required to be discharged in accordance with section 138A(A3) in relation to the measure, the last day on which the implementation trial measure is to have effect is the last day of that period as so extended. (161C) (1) The CMA may, in relation to a market investigation reference, begin an implementation trial where— (a) subsection (2) of section 138 applies (see subsection (1) of that section), and (b) the CMA has not taken, but is minded to take, qualifying remedial action. (2) The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where— (a) subsection (2) of section 147, or subsection (2) of 147A (as the case may be), applies (see subsection (1) of the section in question), and (b) the Secretary of State has not taken, but is minded to take, qualifying remedial action. (3) Subsections (1) and (2) are subject to the duty to publish notices in section 161D. (4) The relevant authority begins an implementation trial by— (a) accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or (b) making an order under this section, for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action. (5) Where the relevant authority begins an implementation trial, the relevant authority may also— (a) accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or (b) make an order under this section, in the circumstances mentioned in subsection (6). (6) The circumstances are that the relevant authority considers that accepting the undertakings or making the order would be likely to contribute to, or otherwise be of use for purposes of, remedying, mitigating or preventing, during the implementation trial period— (a) an adverse effect on competition identified in the report concerned or (as the case may be) an effect adverse to the public interest which has resulted from, or may be expected to result from, the features or combinations of features mentioned; (b) any detrimental effect on customers so far as it has resulted from, or may be expected to result from, any such adverse effect on competition. (161D) (1) Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish— (a) a provisional implementation trial notice, and (b) a final implementation trial notice (but see subsection (4)). (2) A provisional implementation trial notice must— (a) specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial; (b) specify the relevant adverse effect with which each measure is seeking to deal; (c) specify any other facts which the relevant authority considers justify the imposition of each measure; (d) specify, in relation to each measure— (i) how the relevant authority intends to assess the likely effect of the measure, and (ii) the last day on which the relevant authority intends for the measure to have effect; (e) invite the making of representations by the persons on which the relevant authority is minded to impose one or more implementation trial measure (“implementation trial participants”) about the matters set out in the notice; (f) specify the means by which, and the time by which, such representations must be made. (3) The time specified under subsection (2)(f) by which representations must be made must be at least 15 days after the date on which the provisional implementation trial notice is published. (4) A relevant authority may publish a final implementation trial notice only where— (a) the relevant authority has published a provisional implementation trial notice under subsection (1), (b) the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and (c) after considering such representations (if any), it appears to the relevant authority that it is appropriate to begin an implementation trial under section 161C(4). (5) A final implementation trial notice must specify— (a) the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial, (b) in relation to each such measure— (i) how the relevant authority intends to assess the likely effect of the measure, and (ii) the last day on which the measure is to have effect. (161E) (1) The relevant authority may not accept an undertaking from a person under section 161C unless it has provided the person with information about the possible consequences of failing to comply with the undertaking. (2) The CMA may not begin an implementation trial under section 161C(4)— (a) in respect of qualifying remedial action that would be taken in accordance with subsection (2) of section 138, after the end of the period within which the CMA would otherwise have been required to discharge its duty under that subsection; (b) in respect of qualifying remedial action that would be taken in accordance with section 162A(5), after the end of the period mentioned in section 162A(6). (3) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under section 161C as they apply to action taken by the CMA under section 138(2). (4) Subsections (3)(b), (4), (5) and (6) of section 147 apply to action taken by the Secretary of State under section 161C in relation to a restricted PI reference as they apply to action taken by the Secretary of State under section 147(2). (5) Subsections (3) and (4)(b) of section 147A apply to action taken by the Secretary of State under section 161C in relation to a full PI reference as they apply to action taken by the Secretary of State under section 147A(2). (6) Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1). (7) Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).

5

After section 162A (inserted by section 139(4)) insert—