307 Power to provide for other persons to have accreditation functions etc
(1) The Secretary of State may by regulations make provision for or in connection with the conferring on another person of any function falling within subsection (2) so far as it is exercisable in such cases or circumstances as may be prescribed by the regulations, in place of the corresponding function of the Secretary of State.
(2) The functions which may be the subject of regulations under this section are functions corresponding to functions of the Secretary of State under the following provisions of this Chapter as originally enacted—
section 294(2)(b) (function of approving fees provisions);
section 296 (functions relating to applications for accreditation or variation of an accreditation);
section 297 (functions relating to determination of applications);
section 298 (functions relating to revocation or suspension of accreditations etc);
section 299(1) (fees payable by accredited ADR providers), so far as relating to the function of receiving fees;
section 302 (functions relating to enforcement notices);
section 304 (functions relating to ADR information directions);
section 305 (functions relating to disclosure of ADR information).
(3) The powers conferred by subsection (1) include power to make provision for or in connection with—
(a) sharing of information between any two or more relevant authorities;
(b) abolishing (in whole or part) a function conferred on a person by regulations under this section.
(4) In subsection (3)(a) “relevant authorities” means the Secretary of State and any persons with functions conferred by regulations under this section.
(5) Regulations under this section may amend this Chapter.
(6) Regulations under this section are subject to the affirmative procedure.
308 Duty of trader to notify consumer of ADR arrangements etc
(1) This section applies where a trader responds to a complaint from a consumer in respect of any matters relating to a consumer contract between them.
(2) In subsection (1) “matters relating to a consumer contract” include anything concerning—
(a) the making of the contract,
(b) anything done by the trader before or after making the contract,
(c) any obligations of the trader under or relating to the contract, or
(d) the performance by the trader of its obligations under or relating to the contract.
(3) The trader must, when communicating the outcome of the trader’s consideration of the complaint to the consumer, also inform the consumer about any ADR or other arrangement that is available if the consumer is dissatisfied with the outcome.
(4) In subsection (3) “ADR or other arrangement” means a scheme or arrangement—
(a) that is available to the consumer by virtue of an obligation of the trader to participate in the scheme or arrangement imposed by—
(i) legislation,
(ii) terms of the consumer contract, or
(iii) other contractual arrangements to which the trader is party, and
(b) by virtue of which either or both of the following will happen if the complaint (or any part of it) is duly pursued by the consumer—
(i) ADR will be carried out (if or so far as the matters complained of involve a consumer contract dispute between the parties);
(ii) other action will be taken with a view to securing or facilitating a resolution (if or so far as the matters complained of do not involve a consumer contract dispute between the parties).
(5) Section 302 (enforcement notices) applies in relation to a trader who is contravening or has contravened the duty under subsection (3) as it applies in relation to an ADR provider who is contravening or has contravened anything mentioned in section 302(1).
(6) This section does not affect any other duty of a trader to give information to a consumer.
310 Transitional provision relating to this Chapter
(1) The prohibition on carrying out ADR in section 293(1) does not apply to ADR carried out by an ADR provider in relation to a consumer contract dispute where the ADR started before the prohibition came into force.
(2) The prohibition on charging fees to consumers in section 294(1) does not apply to ADR carried out by an ADR provider in relation to a consumer contract dispute where the ADR started before the prohibition came into force.
(3) For the purposes of subsections (1) and (2), the ADR is to be taken as starting when the dispute was first referred to the ADR provider in accordance with that provider’s rules or procedures.
(4) The prohibition on charging fees to consumers in section 294(3) does not apply to ADR carried out by an ADR provider under special ADR arrangements where the ADR started before the prohibition came into force.
(5) Subsection (2) of section 293 applies, in the case of any special ADR arrangements made by an ADR provider before that subsection comes into force, as if the prohibition in it were a prohibition against the person who made the arrangements continuing to operate them, unless that person—
(a) is an exempt ADR provider whose exemption would cover making the special ADR arrangements, or
(b) is an accredited ADR provider whose accreditation would cover making the special ADR arrangements.
(6) But subsection (5) does not prevent the person from continuing to operate the special ADR arrangements so far as relating to cases in which ADR which is being carried out in relation to a consumer contract dispute started before the prohibition in section 293(1) came into force.
(7) For the purposes of subsections (4) and (6) ADR is to be taken as starting when the dispute is referred—
(a) to the person who made the special ADR arrangements in accordance with the person’s rules or procedures, or
(b) to the person carrying out the ADR under the special ADR arrangements, in accordance with the person’s rules or procedures,
whichever occurs first.
(8) The duty in section 308(3) does not apply in relation to a consumer’s complaint if it was received by the trader before the coming into force of section 308.
311 Provision of information about competition in connection with motor fuel
(1) The CMA may require an undertaking involved in, or connected with, the distribution, supply or retail of motor fuel (“U”) to give specified information to it where it considers that the information would assist the CMA in—
(a) assessing competition in the United Kingdom in connection with the retail of motor fuel;
(b) publishing information about competition in the United Kingdom in connection with the retail of motor fuel;
(c) making proposals, or giving information or advice, to the Secretary of State about the need for, or the potential for, action to be taken (whether by the Secretary of State or another person) and what that action should be for the purposes of—
(i) increasing competition in the United Kingdom in connection with the retail of motor fuel;
(ii) benefiting consumers of motor fuel;
(d) assessing the effectiveness of any action taken as a result of proposals made, or information or advice given, under paragraph (c).
(2) The power conferred by subsection (1) is to be exercised by giving U a notice (an “information notice”).
(3) The CMA must include in an information notice—
(a) the time at which, or the frequency with which, the information must be given to the CMA;
(b) the manner and form in which the information must be given to the CMA;
(c) information about the possible consequences of not complying with the notice.
(4) The power under this section to require U to give information to the CMA includes the power to—
(a) require U to take copies of or extracts from information;
(b) require U to obtain or generate information;
(c) require U to collect or retain information that they would not otherwise collect or retain;
(d) if any specified information is not given to the CMA, require U to state, to the best of their knowledge and belief, both where that information is and why it has not been given to the CMA.
(5) An undertaking may not be required under this section to give the CMA a privileged communication.
(6) A “privileged communication” is a communication—
(a) between a professional legal adviser and their client, or
(b) made in connection with, or in contemplation of, legal proceedings,
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
(7) In the application of this section to Scotland—
(a) the reference to the High Court is to be read as a reference to the Court of Session, and
(b) the reference to legal professional privilege is to be read as a reference to the confidentiality of communications.
(8) In this section—
“consumer” has the same meaning as in Part 4 of EA 2002 (see section 183(1) of that Act);
“motor fuel” has the same meaning as in the Motor Fuel (Composition and Content) Regulations 1999 (S.I. 1999/3107) (see regulation 2 of those Regulations), but as if paragraphs (c) and (d) of the definition of that term were omitted;
“specified” means—
specified, or described, in the information notice, or
falling within a category which is specified, or described, in the information notice;
“United Kingdom” includes a part of the United Kingdom.
(9) The Secretary of State may by regulations amend the definition of “motor fuel” in subsection (8).
(10) Regulations under subsection (9) are subject to the negative procedure.
(11) In this Chapter, “undertaking” has the same meaning it has for the purposes of Part 1 of CA 1998 (competition: agreements, abuse of dominant position etc).
312 Penalties for failure to comply with notices under section 311
(1) The CMA may impose a penalty on an undertaking where it considers that the undertaking has, without reasonable excuse—
(a) failed to comply with an information notice under section 311;
(b) destroyed, otherwise disposed of, falsified or concealed, or caused or permitted the destruction, disposal, falsification or concealment of, any document which the undertaking has been required to produce by an information notice under that section;
(c) given the CMA information which is false or misleading in a material particular in connection with an information notice under that section;
(d) given information which is false or misleading in a material particular to another undertaking knowing that the information was to be used for the purpose of giving information to the CMA in connection with an information notice under that section.
(2) The amount of a penalty imposed on an undertaking under this section may be such amount as the CMA considers appropriate, provided it does not exceed the amounts set out in subsection (4).
(3) The amount of a penalty under this section must be—
(a) a fixed amount,
(b) an amount calculated by reference to a daily rate, or
(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.
(4) The maximum amounts of a penalty that may be imposed on an undertaking are—
(a) in the case of a fixed amount, an amount equal to 1% of the total value of the undertaking’s turnover (both inside and outside the United Kingdom);
(b) in the case of an amount calculated by reference to a daily rate, for each day an amount equal to 5% of the total value of the undertaking’s daily turnover (both inside and outside the United Kingdom);
(c) in the case of a combination of a fixed amount and an amount calculated by reference to a daily rate, the amounts mentioned in paragraph (a), in relation to the fixed amount, and paragraph (b), in relation to the amount calculated by reference to a daily rate.
(5) In imposing a penalty under this section by reference to a daily rate—
(a) no account is to be taken of any days before the service on the undertaking concerned of the provisional penalty notice under section 112(A1) of EA 2002 (as applied by section 313), and
(b) unless the CMA determines an earlier day (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the undertaking first complies with the requirement in question.
(6) The Secretary of State may by regulations make provision for determining the turnover (both inside and outside the United Kingdom) of an undertaking for the purposes of this section.
(7) The regulations may, among other things—
(a) make provision about amounts which are, or are not, to be included in an undertaking’s turnover;
(b) make provision about the date or dates by reference to which an undertaking’s turnover is to be determined;
(c) confer on the CMA the power to determine and make provision about matters specified in the regulations (including the matters mentioned in paragraphs (a) and (b)).
(8) Regulations under subsection (6) are subject to the negative procedure.
(1) Sections 112 (penalties: main procedural requirements), 113 (payments and interest by instalments), section 114 (appeals) and 115 (recovery of penalties) of EA 2002 apply in relation to a penalty imposed under section 312 as they apply in relation to a penalty imposed under section 110(1) of that Act.
(2) For the purposes of this section—
(a) sections 112 to 115 of EA 2002 are to be read as if references to “the appropriate authority” were references to the CMA only;
(b) section 114(5A) of EA 2002 is to be read as if the words “In the case of a penalty imposed on a by the CMA or OFCOM,” were omitted;
(c) section 114(12) of EA 2002 is to be read as if, for paragraph (b), there were substituted—
(b) “the relevant guidance” means the statement of policy which was most recently published under section 314 of the Digital Markets, Competition and Consumers Act 2024 at the time of the act or omission giving rise to the penalty.
(1) The CMA must prepare and publish a statement of policy in relation to the exercise of powers to impose a penalty under section 312.
(2) The statement must include a statement about the considerations relevant to the determination of—
(a) whether to impose a penalty under section 312, and
(b) the nature and amount of any such penalty.
(3) The CMA may revise its statement of policy and, where it does so, must publish the revised statement.
(4) In preparing or revising its statement of policy the CMA must consult—
(a) the Secretary of State, and
(b) such other persons as the CMA considers appropriate.
(5) A statement of policy, or revised statement, may not be published under this section without the approval of the Secretary of State.
(6) Subsection (7) applies where the CMA proposes to impose a penalty under section 312 on an undertaking.
(7) The CMA must have regard to the statement of policy most recently published under this section at the time of the act or omission giving rise to the penalty when deciding—
(a) whether to impose the penalty, and
(b) if so, the amount of the penalty.
Destroying or falsifying information
(1) A person (“P”) commits an offence if, having been required to give information to the CMA under section 311, P—
(a) intentionally or recklessly destroys or otherwise disposes of it, falsifies or conceals it, or
(b) causes or permits its destruction, disposal, falsification or concealment.
False or misleading information
(2) A person (“P”) commits an offence if—
(a) P gives information to the CMA in connection with an information notice under section 311,
(b) the information is false or misleading in a material particular, and
(c) P knows that it is or is reckless as to whether it is.
(3) A person (“P”) commits an offence if P gives information to another person which is false or misleading in a material particular and P—
(a) either—
(i) knows the information to be false or misleading in a material particular, or
(ii) is reckless as to whether the information is false or misleading in a material particular, and
(b) knows that the information will be given to the CMA in connection with an information notice under that section.
Sentences
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;
(c) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
Offences by officers of a body corporate etc
(5) If an offence under this section committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body corporate, or
(b) to be attributable to neglect on the part of an officer of the body corporate,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) If the affairs of a body corporate are managed by its members, subsection (5) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were an officer of the body corporate.
(7) If an offence under this section committed by a partnership in Scotland is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to neglect on the partner’s part,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(8) In subsection (7), “partner” includes a person purporting to act as a partner.
316 Penalties under section 312 and offences under section 315
(1) The CMA may not impose a penalty on a person under section 312 in relation to an act or omission which constitutes an offence under section 315 if the person has, in relation to that act or omission, been found guilty of that offence.
(2) A person may not be found guilty of an offence under section 315 by virtue of an act or omission if the person has paid a penalty imposed under section 312 in relation to that act or omission.
In Schedule 14 to EA 2002 (provisions about disclosure of information) at the appropriate place insert—
Chapter 1 of Part 5 of the Digital Markets, Competition and Consumer Act 2024.
(1) This Chapter, apart from subsection (5) of this section and section 317, expires at the end of the relevant period.
(2) The “relevant period” means the period of five years beginning with the day on which this Act is passed.
(3) The Secretary of State may by regulations amend this section to change the definition of the “relevant period”.
(4) Regulations under subsection (3) are subject to the affirmative procedure.
(5) The expiry of this Chapter does not affect its continued operation in relation to any information notice given under section 311 before its expiry.
319 Provision of investigative assistance to overseas regulators
(1) A relevant regulator (“R”) may assist an overseas regulator (“O”) in accordance with the table in subsection (2) where—
(a) O makes a request to R (see section 320) for R to assist O’s carrying out of functions which correspond or are similar to functions of R under a relevant enactment,
(b) R considers that it would be appropriate to assist O (see section 321), and
(c) where the request is made otherwise than under or in accordance with a qualifying cooperation arrangement, the Secretary of State authorises R to assist O (see section 322).
(2) The table in this subsection is—
Where the enactment in question is— | The regulator that may assist the overseas regulator is— | The regulator may assist the overseas regulator by—
Part 1 of CA 1998 (competition) | the CMA | exercising its powers under sections 26 to 29 of CA 1998 as if, by assisting O’s carrying out of functions which correspond or are similar to the functions of the CMA under Part 1 of that Act, the CMA were carrying out an investigation under section 25 of that Act
Part 3 of EA 2002 (mergers) | the CMA | exercising its powers under section 109 of EA 2002 as if assisting O’s carrying out of functions which correspond or are similar to the functions of the CMA under Part 3 of that Act were a “permitted purpose” for the purposes of that section
Part 6 of EA 2002 (cartel offence) | the CMA | exercising its powers under sections 193 and 194 of EA 2002 as if, by assisting O’s carrying out of functions which correspond or are similar to the functions of the CMA under Part 6 of that Act, the CMA were carrying out an investigation under section 192 of that Act
Schedule 5 to CRA 2015 (investigatory powers) | an enforcer for the purposes of Schedule 5 to CRA 2015 (see paragraph 2 of that Schedule) | exercising the powers under Parts 3 and 4 of Schedule 5 to CRA 2015 in connection with an infringement of the law of, or other requirement imposed in, the country or territory of O which appears to R to make provision corresponding or similar to an enactment or other obligation or rule of law listed in Schedule 15 to this Act
Part 1 of this Act (digital markets) | the CMA | exercising its powers under any of sections 69, 71 and 79 as if assisting O’s carrying out of a function which corresponds or is similar to a digital markets function (as defined in section 118) were itself a digital markets function
Part 1 of this Act (digital markets) | the CMA | exercising its powers under any of sections 72, 74 and 75 as if, by assisting O’s carrying out of any investigation which corresponds or is similar to a digital markets investigation (as defined in section 118), the CMA were carrying out a digital markets investigation
(3) For the purposes of the exercise by R of the powers under Parts 3 and 4 of Schedule 5 to CRA 2015 by virtue of this Chapter—
(a) paragraphs 13, 19 and 20 of that Schedule are to be ignored;
(b) where a power is exercisable only by an enforcer of a particular description, the power is exercisable by R only if R is an enforcer of that description;
(c) references in Part 4 of that Schedule to the enforcer’s legislation, in relation to a domestic enforcer, are to be read in relation to R as references to the law of, or other requirement imposed in, the country or territory of O mentioned in the entry for that Schedule in the table in subsection (2).
(4) Any reference in an enactment (other than in this Chapter) to the functions of a relevant regulator under a relevant enactment includes a reference to those functions as exercised by virtue of this Chapter.
(5) In this Chapter—
“cooperation arrangement” means an arrangement or agreement relating in whole or in part to cooperation in matters relating to the subject matter of a relevant enactment;
“overseas regulator” or “O” means a person or body in a country or territory outside the United Kingdom which appears to R to exercise functions of a public nature corresponding or similar to functions of R;
“qualifying cooperation arrangement” means any cooperation arrangement—
to which the United Kingdom and the country or territory of O are parties, and
which provides for the provision of mutual assistance as between the United Kingdom and that country or territory, or as between R and persons or bodies in that country or territory, in relation to matters relating to—
functions of R under a relevant enactment, or
functions of O which correspond or are similar to those functions;
“relevant enactment” means an enactment listed in the first column of the table in subsection (2);
“relevant regulator” or “R” means a regulator listed in the second column of the table in subsection (2).
(1) Subsection (2) makes provision about requests from O for the purposes of section 319(1)(a).
(2) A request from O to R for R to assist O must—
(a) be made in writing,
(b) describe the matter in respect of which R’s assistance is requested, and
(c) include details of any penalty or sanction that could be imposed as a result of the carrying out by O of the functions in respect of which R’s assistance is requested.
321 The appropriateness of providing investigative assistance
(1) This subsection makes provision about how R is to consider whether it would be appropriate to assist O for the purposes of section 319(1)(b).
(2) In considering whether it would be appropriate to assist O, R must have regard to whether—
(a) R would be able to exercise its powers under the relevant enactment concerned in a corresponding or similar case arising in the United Kingdom;
(b) the United Kingdom and the country or territory of O, or R and O, are parties to a cooperation arrangement;
(c) the matter in respect of which the assistance is requested is sufficiently serious to justify R assisting O.
(3) R may consider that it would not be appropriate to assist O unless O undertakes to make such contribution as R considers appropriate towards the cost of R doing so.
(4) R must consider that it would not be appropriate to assist O where any of subsections (5) to (8) apply.
(5) This subsection applies where R considers that—
(a) a person or body in the country or territory of O (whether or not O) would not provide corresponding or substantially similar assistance to R, unless R considers that there is an overriding public benefit to the United Kingdom in assisting O;
(b) assisting O would be contrary to the public interest.
(6) This subsection applies where—
(a) the matter to which the request relates concerns the investigation of crime or the bringing of criminal proceedings, and
(b) the request is made otherwise than under or in accordance with a qualifying cooperation arrangement.
(7) This subsection applies where R would not be able to disclose, under Part 9 of EA 2002 (information), to O any information obtained by R in the course of assisting O.
(8) This subsection applies where—
(a) the request relates to a matter in respect of which in a corresponding or similar case arising in the United Kingdom R would not be able to exercise its powers under the relevant enactment concerned unless R has reasonable grounds for suspecting that there has, or may have, been a breach of the law (“the relevant UK law”), and
(b) R does not have reasonable grounds for suspecting that there has, or may have, been a breach of the law of the country or territory of O which appears to R to make provision corresponding or similar to the relevant UK law in question.
(9) For the purposes of subsection (8)(b), R is to regard as conclusive a certificate issued by O as to whether there has, or may have, been a breach of the law of the country or territory of O.
322 Authorisation of the provision of investigative assistance
(1) This section makes provision about how the Secretary of State authorises R to assist O for the purposes of section 319(1)(c).
(2) The Secretary of State may authorise R to assist O either—
(a) in relation to one or more specific requests for assistance, or
(b) generally in respect of requests for assistance of a particular description (including in respect of requests from particular overseas regulators).
(3) The Secretary of State may withdraw any general authorisation given under subsection (2)(b).
(4) The Secretary of State must publish—
(a) any general authorisation given under subsection (2)(b);
(b) notice of any withdrawal of a general authorisation under subsection (3).
(5) In considering whether to authorise R to assist O (whether specifically or generally), the Secretary of State must have regard to whether—
(a) O’s request for assistance is made under, or in accordance with, the terms of an arrangement or agreement (other than a qualifying cooperation arrangement) to which the United Kingdom is a party (and, where it is, the Secretary of State must also have regard to the terms of the arrangement or agreement);
(b) it would be more appropriate, in relation to the matter in respect of which R’s assistance is requested, for—
(i) any of R’s powers under the relevant enactment concerned to be exercised solely on behalf of R (and not by virtue of this Chapter), or
(ii) for functions to be exercised by another person or body in the United Kingdom or in a country or territory other than the country or territory of O;
(c) R assisting O would be contrary to the public interest.
(6) In authorising R to assist O, the Secretary of State may impose conditions on R doing so.
(7) The conditions that may be imposed include conditions—
(a) requiring R, before assisting O, to obtain an undertaking from O that any information obtained by R in assisting O will not be used, or will only be used, for specified purposes;
(b) requiring R not to use specified powers that would otherwise be available to R in assisting O;
(c) requiring R to assist O by using specified powers available to R only in a specified manner;
(d) requiring R to assist O only in respect of specified matters.
(8) In subsection (7), “specified” means specified in a condition imposed by the Secretary of State under subsection (6).
323 Notifications in respect of requests for investigative assistance
(1) R must notify the Secretary of State that R has received a request for assistance from O where—
(a) R considers that it would be appropriate for R to assist O, and
(b) the Secretary of State has not given R a general authorisation to provide O with the assistance requested (see section 322(2)(b)).
(2) But subsection (1) does not apply where O’s request is made under or in accordance with a qualifying cooperation arrangement.
(3) R must notify O as to whether R will be providing the assistance requested and, where relevant, of any conditions imposed on that assistance (see section 322(6)).
324 Guidance in connection with investigative assistance
(1) The CMA must prepare and publish guidance about—
(a) the making and consideration of requests for assistance under this Chapter, and
(b) the provision of assistance under this Chapter.
(2) The CMA may at any time prepare and publish revised or new guidance.
(3) No guidance is to be published under this section without the approval of the Secretary of State.
(4) In preparing guidance under this section the CMA must consult such persons as it considers appropriate.
(5) A relevant regulator must have regard to the guidance for the time being in force when it is exercising functions under or in connection this Chapter.
(1) Part 9 of EA 2002 (information) is amended as follows.
(2) For section 243 (overseas disclosures) substitute—
Overseas disclosures for both overseas and domestic purposes
243A (1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose of facilitating both—
(a) the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment, and
(b) the exercise by the overseas public authority of any function which it has relating to—
(i) carrying out investigations in connection with the enforcement of any relevant law by means of civil proceedings;
(ii) bringing civil proceedings for the enforcement of such law or the conduct of such proceedings;
(iii) the investigation of crime;
(iv) bringing criminal proceedings or the conduct of such proceedings;
(v) deciding whether to start or bring to an end such investigations or proceedings.
(2) Subsection (1) does not apply to any of the following—
(a) information which is held by a person who is a private designated enforcer for the purposes of Chapter 3 of Part 3 of the Digital Markets, Competition and Consumers Act 2024 (see section 151 of that Act);
(b) information which comes to a public authority in connection with an investigation under Part 4 or section 174 of this Act;
(c) information which comes to a public authority in connection with an investigation under section 11 of the Competition Act 1980;
(d) legacy information within the meaning of subsection (5).
(3) In subsection (1)(a), the reference to an enactment includes a reference to an enactment contained in—
(a) an Act of the Scottish Parliament;
(b) Northern Ireland legislation;
(c) subordinate legislation.
(4) In subsection (1)(b)(i), “relevant law” means—
(a) this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);
(b) any enactment, obligation or rule of law specified in Schedule 15 to the Digital Markets, Competition and Consumers Act 2024 (consumer protection enactments);
(c) any legislation, or any obligation or rule of law in a country or territory outside the United Kingdom which appears to the discloser to make provision corresponding or similar to anything within paragraphs (a) and (b).
(5) In subsection (2)(d), “legacy information” means information which—
(a) comes to a public authority in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Parts 4 or 6 of the 1973 Act;
(b) came to a public authority—
(i) before the coming into force of this section, and
(ii) in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Part 5 of the 1973 Act;
(c) came to a public authority—
(i) before 1 July 2021, and
(ii) in connection with an investigation under Part 3 of the Enterprise Act 2002.
Overseas disclosures for overseas purposes only
243B (1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose mentioned in section 243A(1)(b).
(2) Subsection (2) of section 243A applies for the purposes of subsection (1) of this section as it applies for the purposes of subsection (1) of that section.
Overseas disclosures for designated cooperation arrangement purposes
243C (1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for a purpose permitted under or by virtue of a designated cooperation arrangement.
(2) “Designated cooperation arrangement” means an arrangement or agreement that meets all of Conditions A to D.
(3) Condition A is that the arrangement or agreement is between—
(a) a public authority and an overseas public authority, or
(b) the United Kingdom and a country or territory.
(4) Condition B is that the arrangement or agreement relates to cooperation between—
(a) the public authority and the overseas public authority, or
(b) public authorities in the United Kingdom and persons or bodies in that country or territory,
for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).
(5) Condition C is that the arrangement or agreement provides for—
(a) the overseas public authority and the public authority, or
(b) a person or body in that country or territory and public authorities in the United Kingdom,
to provide corresponding or substantially similar assistance to each other for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).
(6) Condition D is that the arrangement or agreement is designated in regulations made by the Secretary of State.
(7) Before designating an arrangement or agreement in regulations under subsection (6), the Secretary of State must have regard in particular to whether the arrangement or agreement contains provision restricting or preventing—
(a) the use for another purpose of information disclosed for a purpose permitted under or by virtue of the arrangement or agreement;
(b) the further disclosure of such information.
(8) The Secretary of State may not designate an arrangement or agreement in regulations under subsection (6) unless the Secretary of State is satisfied that—
(a) the law and practice of the country or territory, or the country or territory of the overseas public authority, with whom the arrangement or agreement is with provides appropriate protection against self-incrimination in criminal proceedings, and
(b) the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.
(9) For the purposes of subsection (8), protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.
(10) Regulations under subsection (6) are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Use and further disclosure of information disclosed under sections 243A and 243B
243D (1) Subsections (2) and (3) apply to information disclosed by virtue of section 243A to the extent that the disclosure was to facilitate the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment (“the original function”) in relation to a particular matter (“the original matter”).
(2) The information must not be used by the overseas public authority other than for facilitating the exercise by the discloser of the original function in relation to the original matter unless—
(a) the use is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (other than the original function) whether or not in relation to the original matter, and
(b) the discloser consents to the use of that information for that purpose.
(3) The information must not be further disclosed by the overseas public authority unless—
(a) the further disclosure is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (whether or not the original function) whether or not in relation to the original matter, and
(b) the discloser consents to the further disclosure of the information for that purpose.
(4) Subsections (5) and (6) apply to information disclosed by virtue of section 243A or 243B to the extent that the disclosure was to facilitate the exercise of functions of an overseas public authority relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (“the original function”) in relation to a particular matter (“the original matter”).
(5) The information must not be used by the overseas public authority other than for facilitating the exercise by the authority of the original function in relation to the original matter unless—
(a) the use is for the purpose of facilitating the exercise of a function which the authority has relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (other than the original function) whether or not in relation to the original matter, and
(b) the discloser consents to the use of that information for that purpose.
(6) The information must not be further disclosed by the overseas public authority unless—
(a) the further disclosure is for the purpose of facilitating the exercise of any of its functions relating to anything mentioned in sub-paragraphs (i) to (v) of subsection (1)(b) of section 243A (whether or not the original function) whether or not in relation to the original matter, and
(b) the discloser consents to the further disclosure of the information for that purpose.
(7) In deciding whether to consent to the use or further disclosure of information for the purposes of subsection (2)(b), (3)(b), (5)(b) or (6)(b), the discloser must have regard to the considerations in section 243F to which it would be required to have regard if it were deciding to disclose the information under 243A or 243B.
(8) Nothing in this section prevents information being used, or further disclosed, by the overseas public authority if that use, or further disclosure, is required under the law of the country or territory of the authority.
Directions by the Secretary of State relating to overseas disclosures under sections 243A and 243B
243E (1) The Secretary of State may direct that a disclosure permitted under section 243A or 243B must not be made if the Secretary of State thinks that, in connection with any matter in respect of which the disclosure could be made, it is more appropriate—
(a) if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another specified country or territory (rather than by the overseas public authority);
(b) if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another specified country or territory (rather than in the country or territory of the overseas authority).
(2) In subsection (1), “specified” means specified in the direction.
(3) The Secretary of State must take such steps as the Secretary of State thinks are appropriate to bring a direction under subsection (1) to the attention of persons likely to be affected by it.
Relevant considerations relating to overseas disclosures under sections 243A and 243B
243F (1) This section applies when a public authority is deciding whether to make a disclosure under section 243A or 243B.
(2) In deciding whether to make a disclosure under section 243A, the public authority must have regard in particular to the following considerations—
(a) whether the law and practice of the country or territory to whose authority the disclosure would be made provides appropriate protection against self-incrimination in criminal proceedings;
(b) whether the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.
(3) In deciding whether to make a disclosure under section 243B, the public authority must have regard in particular to the considerations in subsection (2) and the following additional considerations—
(a) whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;
(b) whether the disclosure would further the aims or purposes of any convention or treaty relating in whole or in part to cooperation in matters relating to competition or consumer protection to which the United Kingdom and the country or territory of the authority to whom the disclosure would be made are parties;
(c) whether there are arrangements in place for the provision of mutual assistance as between the United Kingdom and that country or territory to whose authority the disclosure would be made in relation to the disclosure of information of the kind to which section 237 applies;
(d) whether a person or body in that country or territory would assist the public authority in a way that corresponds or is substantially similar to the assistance that it is proposed the public authority give to the overseas public authority by making the disclosure.
(4) For the purposes of this section, protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.
(5) The Secretary of State may by regulations amend subsections (2) and (3) so as to—
(a) alter any consideration for the time being included in those subsections;
(b) add further considerations;
(c) remove any considerations.
(6) Regulations under subsection (5) are to be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House of Parliament.
(3) In section 244 (specified information: considerations relevant to disclosure)—
(a) in subsection (2), for “information whose disclosure the authority thinks is contrary to the public interest” substitute “sensitive information”;
(b) in subsection (3), for the words after “(so far as practicable)” to the end of paragraph (b) substitute “any commercial information or private information”.
(4) In section 245 (offences) in subsection (2), for “243(4)” substitute “243E”.
(5) For section 246 substitute—
Interpretation
246A In this Part—
“commercial information” means information relating to any business of an undertaking whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks might significantly harm the undertaking’s legitimate business interests;
“confidential information” means commercial information, private information or sensitive information;
“overseas public authority” means a person or body in any country or territory outside the United Kingdom which appears to the discloser (within the meaning of any of sections 243A to 243C) to exercise functions of a public nature in relation to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b);
“private information” mean information relating to the private affairs of an individual whose disclosure the public authority concerned, or for the purposes of section 243C the Secretary of State, thinks might significantly harm the individual’s interests;
“sensitive information” means information whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks would be contrary to the public interest;
“subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 and includes an instrument made under—
an Act of the Scottish Parliament;
Northern Ireland legislation.
(6) In section 59 of the Companies (Audit, Investigations and Community Enterprises) Act 2004 (information), in subsection (6)—
(a) for “section 243(6)” substitute “section 243F(2) and (3)”;
(b) for “(overseas disclosures)” substitute “(relevant considerations relating to overseas disclosures)”.
327 Duty of expedition on the CMA and sectoral regulators
(1) In section 25 of ERRA 2013 (the Competition and Markets Authority), after subsection (4) insert—
(5) In making any decision, or otherwise taking action, for the purposes of any of its functions within Schedule 4A the CMA must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.
(2) After Schedule 4 to ERRA 2013 insert—
Schedule 4A
Functions to which the CMA’s duty of expedition applies
Section 25
Part 1 Introduction
1 The following functions are functions within this Schedule for the purposes of section 25(5).
Part 2 Competition functions
Functions under the Enterprise Act 2002
2 Functions under Part 3 of the 2002 Act (mergers) other than functions under—
(a) section 94B (statement of policy about functions under sections 94 and 94AA);
(b) section 106 (advice and information about references under section 22 or 33);
(c) section 116 (statement of policy about penalties).
3 Functions under Part 4 of the 2002 Act (market studies and market investigations) other than functions under—
(a) section 166 (register of undertakings and orders);
(b) section 167C (statement of policy about functions under sections 167 and 167A);
(c) section 171 (advice and information about market investigation references);
(d) section 174E (statement of policy about penalties).
4 Functions under Part 6 of the 2002 Act (the cartel offence) other than functions under section 190A (cartel offence: prosecution guidance).
Functions under Part 1 of the Competition Act 1998
5 Functions under Part 1 of the 1998 Act (competition) other than functions under—
(a) section 31D (guidance about the acceptance of commitments under section 31A);
(b) section 35C (statement of policy about penalties under sections 31E, 34 and 35A);
(c) section 38 (the appropriate level of a penalty);
(d) section 40B (statement of policy about penalties under section 40A);
(e) section 51 (CMA rules);
(f) section 52 (advice and information about the Chapter 1 and 2 prohibitions);
(g) section 54 (functions of sectoral regulators).
Functions under Chapter 3 of Part 2 of the Water Industry Act 1991
6 Functions under sections 32 to 35 of the Water Industry Act 1991 (protection of consumers: competition provisions).
Part 3 Consumer functions
Functions under Part 3 of the Digital Markets, Competition and Consumers Act 2024
7 Functions under Part 3 of the Digital Markets, Competition and Consumers Act 2024 (enforcement powers for infringements of consumer protection law) other than functions under—
(a) section 199 (statement of policy about penalties);
(b) sections 210 and 211 (rules about direct enforcement functions);
(c) section 212 (guidance about direct enforcement functions).
8 Functions under Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024 (protection from unfair trading).
Functions under the Consumer Rights Act 2015
9 (1) Functions under Schedule 3 to the Consumer Rights Act 2015 (enforcement of law on unfair contract terms and notices) other than functions under paragraph 7(2) to (5) of that Schedule (provision of information and advice).
(2) Functions under Schedule 5 to the Consumer Rights Act 2015 (investigatory powers) other than functions under paragraph 16F of that Schedule (statement of policy about penalties).
Functions under the Business Protection from Misleading Marketing Regulations 2008
10 Functions under the Business Protection from Misleading Marketing Regulations 2008 (S.I. 1276/2008) other than functions under regulation 20(2) of those Regulations (provision of information and advice).
Part 4 Digital market functions
Functions under Part 1 of the Digital Markets, Competition and Consumers Act 2024
11 Functions under Part 1 of the Digital Markets, Competition and Consumers Act 2024 (digital markets) other than functions under—
(a) section 60 (content of report under section 57 etc);
(b) section 67 (regulations about duty to notify);
(c) section 91 (statement of policy on penalties);
(d) section 114 (guidance about functions under Part 1).
(3) In consequence of the amendments made by subsections (1) and (2)—
(a) in section 103 of EA 2002 (duty of expedition in relation to references)—
(i) in the heading, at the end insert “under section 45 or 62”;
(ii) omit subsection (1);
(b) in the Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202) omit Article 25A (modification of section 103 of EA 2002).
(4) Schedule 29 makes provision imposing a duty of expedition on sectoral regulators in respect of their competition functions that are exercisable concurrently with the CMA.
328 Offenders assisting investigations and prosecutions: powers of the CMA
(1) In Chapter 2 of Part 2 of the Serious Organised Crime and Police Act 2005 (offenders assisting investigations and prosecutions), section 71 (assistance by offender: immunity from prosecution) is amended as follows.
(2) In subsection (4), after paragraph (dab) insert—
(dac) the Competition and Markets Authority;
.
(3) In subsection (6A), in the words before paragraph (a), after “the Bank of England,” insert “the Competition and Markets Authority”.
(4) After subsection (7) insert—
(8) The Competition and Markets Authority, or a person designated by the Competition and Markets Authority under subsection (4)(e), may not give an immunity notice (but has the other powers available to specified prosecutors).
In this Act—
“CA 1998” means the Competition Act 1998;
“CRA 2015” means the Consumer Rights Act 2015;
“EA 2002” means the Enterprise Act 2002;
“ERRA 2013” means the Enterprise and Regulatory Reform Act 2013;
“the CMA” means the Competition and Markets Authority;
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);
“digital content” means data which is produced and supplied in digital form;
“enactment” means an enactment whenever passed or made and includes—
an enactment contained in any Order in Council, order, rules, regulations, scheme, warrant, byelaw or other instrument made under an Act,
an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,
an enactment contained in, or in an instrument made under, a Measure or Act of Senedd Cymru,
an enactment contained in, or in an instrument made under, Northern Ireland legislation, and
any assimilated direct legislation;
“firm” means any entity, whether or not a legal person, that is not an individual and includes a body corporate, a corporation sole and a partnership or other unincorporated association;
“United Kingdom national” means—
a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
a person who is a British subject under the British Nationality Act 1981;
a British protected person within the meaning of that Act;
“working day” means any day other than—
a Saturday or Sunday, or
a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.
(1) This section applies to a duty or power to process information that is imposed or conferred by or under any provision of this Act.
(2) A duty or power to which this section applies does not require or authorise the processing of information which would contravene the data protection legislation (but the duty or power is to be taken into account in determining whether the processing would contravene that legislation).
(1) This section applies in relation to a notice given to a person—
(a) under this Act by the CMA, or
(b) under Part 3 by another enforcer (within the meaning of that Part).
(2) The notice may be given by—
(a) delivering it to the person,
(b) leaving it at the person’s proper address,
(c) sending it by post to the person at that address, or
(d) sending it to the person by email to their email address.
(3) A notice to a body corporate may be given in accordance with subsection (2) to any officer of that body.
(4) A notice to a partnership may be given in accordance with subsection (2) to any partner or a person who has the control or management of the partnership business.
(5) A notice to a firm that is not a body corporate or a partnership may be given in accordance with subsection (2) to any member of the governing body of the firm.
(6) A person’s proper address is—
(a) in a case where the person has specified an address as one at which the person, or someone acting on the person’s behalf, will accept service of notices or other documents, that address;
(b) in any other case, the address determined in accordance with subsection (7).
(7) A person’s proper address is (if subsection (6)(a) does not apply)—
(a) in the case of a body corporate, its registered or principal office;
(b) in the case of a partnership, the principal office of the partnership;
(c) in the case of a firm that is not a body corporate or a partnership, the principal office of the firm;
(d) in a case where none of paragraphs (a) to (c) apply, any address at which the CMA or other enforcer giving the notice believes, on reasonable grounds, that the notice will come to the attention of the person.
(8) A person’s email address is—
(a) any email address published for the time being by that person as an address for contacting that person, or
(b) if there is no such published address, any email address by means of which the CMA or other enforcer believes, on reasonable grounds, that the notice will come to the attention of that person.
(9) In the case of—
(a) a body corporate registered outside the United Kingdom,
(b) a partnership carrying on business outside the United Kingdom, or
(c) any other type of firm with offices outside the United Kingdom,
references to its principal office include references to its principal office in the United Kingdom or, if it has no principal office in the United Kingdom, any place in the United Kingdom where it carries on business or conducts activities.
(10) In this section “officer”, in relation to any body corporate, means a director, manager, secretary or other similar officer of the body.
(11) This section does not limit any other lawful means of giving notice.
There is to be paid out of money provided by Parliament—
(a) any expenses incurred by the Secretary of State or the CMA under or by virtue of this Act, and
(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.
(1) The appropriate authority may by regulations make provision that is consequential on this Act or on any provision made under it.
(2) The power to make regulations under this section includes power to amend, repeal or revoke provision made by an enactment passed or made before the end of the Session in which this Act is passed.
(3) Regulations under this section are subject to the affirmative procedure if they amend, repeal or revoke any provision of primary legislation.
(4) Regulations under this section to which subsection (3) does not apply are subject to the negative procedure.
(5) In this section—
“appropriate authority” means—
in the case of regulations under this section that contain amendments only in relation to tax, the Treasury;
in any other case, the Secretary of State;
“primary legislation” means—
an Act of Parliament (including this Act);
an Act of the Scottish Parliament;
a Measure or Act of Senedd Cymru;
Northern Ireland legislation.
(1) A power to make regulations under any provision of this Act includes power to make—
(a) consequential, supplementary, incidental, transitional or saving provision;
(b) different provision for different purposes.
(2) Regulations under this Act are to be made by statutory instrument.
(3) Where regulations under this Act are subject to “the affirmative procedure”, the regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
(4) Where regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) In the case of regulations under section 336 made by the Treasury, the references in subsections (3) and (4) to each or either House of Parliament are to be read as references to the House of Commons only.
(6) Any provision that may be made by regulations under this Act subject to the negative procedure may be made in regulations subject to the affirmative procedure.
(7) This section does not apply to regulations under section 339.
(1) Subject to subsection (2), this Act extends to England and Wales, Scotland and Northern Ireland.
(2) Any amendment, repeal or revocation made by this Act has the same extent as the provision amended, repealed or revoked.
(1) Except as provided by subsections (2) and (3), this Act comes into force on such day as the Secretary of State may by regulations appoint.
(2) The following provisions come into force on the day on which this Act is passed—
(a) section 130 (and Schedule 7);
(b) this Part, other than section 335 (and Schedule 30);
(c) any other provision of this Act so far as it confers power to make regulations or is otherwise necessary for enabling the exercise of such a power on or after the day on which this Act is passed.
(3) Section 129 (and Schedule 6) come into force at the end of the period of two months beginning with the day on which this Act is passed.
(4) Different days may be appointed under subsection (1) for different purposes.
(5) The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.
(6) The power to make regulations under subsection (5) includes power to make different provision for different purposes.
(7) Regulations under this section are to be made by statutory instrument.
Section 36
Application of Schedule
1 This Schedule applies for the purposes of Chapters 3 and 4 in relation to—
(a) accepting a commitment,
(b) accepting a variation of a commitment (a “requested variation”), or
(c) releasing an undertaking from the requirement to comply with a commitment.
Procedure for accepting a commitment or requested variation
2 (1) Before accepting a commitment or a requested variation the CMA must—
(a) publish a notice under this paragraph, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) The notice must include—
(a) the commitment or requested variation that the CMA proposes to accept,
(b) the conduct requirement or, as the case may be, actual or suspected adverse effect on competition to which the commitment or variation relates,
(c) the CMA’s reasons for its proposed decision, and
(d) the period within which representations may be made in relation to the proposed commitment or requested variation.
3 (1) Before accepting a modification of a commitment or requested variation, of which notice has been given under paragraph 2(1), the CMA must—
(a) publish a notice under this paragraph, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) The notice must include—
(a) the proposed modifications,
(b) the reasons for them, and
(c) the period within which representations may be made in relation to them.
4 The CMA must publish notice of its decision on whether to, and the form in which it will, accept a commitment or a requested variation as soon as reasonably practicable.
5 The requirements of paragraphs 2 and 3 do not apply in relation to a proposed modification which the CMA does not consider material.
Procedure for releasing an undertaking from a commitment
6 (1) Before releasing an undertaking from a commitment the CMA must—
(a) publish a notice under this paragraph, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) The notice must include—
(a) that the CMA proposes to release the undertaking from the commitment,
(b) the reasons for the CMA’s proposal, and
(c) the period within which representations may be made in relation to the proposal.
7 The CMA must publish a notice of its decision on whether to release an undertaking from a commitment as soon as reasonably practicable.
Schedule 2 Mergers: holding of interests and rights
Section 58
Joint interests
1 If two or more persons each hold an interest or right jointly, each of them is treated as holding that interest or right.
Joint arrangements
2 (1) If interests or rights held by a person and interests or rights held by another person are the subject of a joint arrangement between those persons, each of them is treated as holding the combined interests or rights of both of them.
(2) A “joint arrangement” is an arrangement between the holders of interests or rights that they will exercise all or substantially all the rights conferred by their respective interests, or their respective rights, jointly in a way that is pre-determined by the arrangement.
Interests held by nominees
3 An interest held by a person as nominee for another is to be treated as held by the other (and not by the nominee).
Rights treated as held by person who controls their exercise
4 (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.
Rights exercisable only in certain circumstances etc
5 (1) Rights that are exercisable by a person only in certain circumstances are to be treated as held by the person only—
(a) when 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.
(2) But rights that are exercisable by an administrator or by creditors while an entity is in relevant insolvency proceedings are not to be regarded as held by the administrator or creditors even while the entity 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 an entity’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 not for that reason to be treated as not being held.
Rights attached to shares held by way of security
6 Rights attached to shares held by way of security provided by a person are to be treated 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.
Arrangements
7 (1) In 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).
Schedule 3 Power of Competition Appeal Tribunal to grant declaratory relief
Section 125
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—
Proceedings under section 47A or collective proceedings: declaratory relief
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—
Declarations and declarators
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.
Section 127
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 Mergers: fast-track references under sections 22 and 33 of EA 2002
Section 128
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—
Fast-track reference requests
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.
Fast-track reference requests: procedure
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).
Acceptance by the CMA of fast-track reference requests
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—
Time-limits for investigations and reports
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)
.
Section 129
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—
Meaning of “the decision-making authority”
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).