Enterprise Act 2002
2002 c. 40
An Act to establish and provide for the functions of the Office of Fair Trading, the Competition Appeal Tribunal and the Competition Service; to make provision about mergers and market structures and conduct; to amend the constitution and functions of the Competition Commission; to create an offence for those entering into certain anti-competitive agreements; to provide for the disqualification of directors of companies engaging in certain anti-competitive practices; to make other provision about competition law; to amend the law relating to the protection of the collective interests of consumers; to make further provision about the disclosure of information obtained under competition and consumer legislation; to amend the Insolvency Act 1986 and make other provision about insolvency; and for connected purposes.
[7th November 2002]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
(1) The CMA has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.
(2) That function is to be carried out with a view to (among other things) ensuring that the CMA has sufficient information to take informed decisions and to carry out its other functions effectively.
(3) In carrying out that function the CMA may carry out, commission or support (financially or otherwise) research.
(1) The CMA has the function of—
(a) making the public aware of the ways in which competition may benefit consumers in, and the economy of, the United Kingdom; and
(b) giving information or advice in respect of matters relating to any of its functions to the public.
(2) In carrying out those functions the CMA may—
(a) publish educational materials or carry out other educational activities; or
(b) support (financially or otherwise) the carrying out by others of such activities or the provision by others of information or advice.
7 Provision of information and advice to Ministers etc.
(1) The CMA has the function of—
(a) making proposals, or
(b) giving other information or advice,
on matters relating to any of its functions to any Minister of the Crown or other public authority (including proposals, information or advice as to any aspect of the law or a proposed change in the law).
(1A) The CMA may, in particular, carry out the function under subsection (1)(a) by making a proposal in the form of a recommendation to a Minister of the Crown about the potential effect of a proposal for Westminster legislation on competition within any market or markets in the United Kingdom for goods or services.
(1B) The CMA must publish such a recommendation in such manner as the CMA considers appropriate for bringing the subject matter of the recommendation to the attention of those likely to be affected by it.
(2) A Minister of the Crown may request the CMA to make proposals or give other information or advice on any matter relating to any of its functions; and the CMA shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.
(3) In this section—
“market in the United Kingdom” includes—
so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and
any market which operates only in a part of the United Kingdom;
and the reference to a market for goods or services includes a reference to a market for goods and services; and
“Westminster legislation” means—
an Act of Parliament, or
subordinate legislation (within the meaning given by section 21 of the Interpretation Act 1978).
The CMA may not under this Part support a public consumer advice scheme, where that support of a scheme consists of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them.
Section 12 of the Fair Trading Act 1973 (c. 41) (in this Act referred to as “the 1973 Act”) and section 13 of the Competition Act 1980 (c. 21) (powers of Secretary of State to give directions) shall cease to have effect.
(1) The following provisions of the 1973 Act shall cease to have effect—
(a) section 3 and Schedule 2 (which establish, and make provision with respect to, the Consumer Protection Advisory Committee);
(b) sections 13 to 21 (which relate to references made to, and reports of, that Committee); and
(c) section 22 (power of Secretary of State to make orders in pursuance of a report of that Committee).
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—
(a) repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and
(b) make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.
(4) An order under subsection (3)—
(a) may make transitional or saving provision in connection with any modification made by the order; and
(b) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(1) This section applies where a designated consumer body makes a complaint to the CMA that any feature, or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.
(2) The CMA must, within 90 days after the day on which it receives the complaint, publish a response stating how it proposes to deal with the complaint, and in particular—
(a) whether it has decided to take any action, or to take no action, in response to the complaint, and
(b) if it has decided to take action, what action it proposes to take.
(3) The response must state the CMA's reasons for its proposals.
(4) The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.
(5) “Designated consumer body” means a body designated by the Secretary of State by order.
(6) The Secretary of State—
(a) may designate a body only if it appears to him to represent the interests of consumers of any description, and
(b) must publish (and may from time to time vary) other criteria to be applied by him in determining whether to make or revoke a designation.
(7) The CMA —
(a) must issue guidance as to the presentation by the complainant of a reasoned case for the complaint, and
(b) may issue such other guidance as appears to it to be appropriate for the purposes of this section.
(8) An order under this section—
(a) shall be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(9) In this section—
(a) references to a feature of a market in the United Kingdom for goods or services have the same meaning as if contained in Part 4, and
(b) “consumer” means an individual who is a consumer within the meaning of that Part.
(1) There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).
(2) The Tribunal shall consist of—
(a) a person appointed by the Lord Chancellor to preside over the Tribunal (in this Part referred to as “the President”);
(aa) such judges as are nominated from time to time by the Lord Chief Justice of England and Wales from the High Court of England and Wales;
(ab) such judges as are nominated from time to time by the Lord President of the Court of Session from the judges of the Court of Session;
(ac) such judges as are nominated from time to time by the Lord Chief Justice of Northern Ireland from the High Court in Northern Ireland;
(b) members appointed by the Lord Chancellor to form a panel of chairmen; and
(c) members appointed by the Secretary of State to form a panel of ordinary members.
(3) The Tribunal shall have a Registrar appointed by the Secretary of State.
(4) The expenses of the Tribunal shall be paid by the Competition Service.
(5) Schedule 2 (which makes further provision about the Tribunal) has effect.
(1) There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).
(2) The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.
(3) In subsection (2) “support services” includes the provision of staff, accommodation and equipment and any other services which facilitate the carrying out by the Tribunal of its functions.
(4) The activities of the Service are not carried out on behalf of the Crown (and its property is not to be regarded as held on behalf of the Crown).
(5) The Secretary of State shall pay to the Service such sums as he considers appropriate to enable it to fund the activities of the Tribunal and to carry out its other activities.
(6) Schedule 3 (which makes further provision about the Service) has effect.
14 Constitution of Tribunal for particular proceedings and its decisions
(1) For the purposes of any proceedings before it, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, the Tribunal shall consist of a chairman and two other members.
(1A) But in the case of proceedings relating to a claim under section 47A of the 1998 Act which is subject to the fast-track procedure (as described in Tribunal rules), the Tribunal may consist of a chairman only.
(2) The chairman must be the President, a judge within any of paragraphs (aa) to (ac) of section 12(2) or a member of the panel of chairmen.
(3) The other members may be chosen from the judges within paragraphs (aa) to (ac) of section 12(2), the panel of chairmen or the panel of ordinary members.
(4) If the members of the Tribunal as constituted in accordance with this section are unable to agree on any decision, the decision is to be taken by majority vote.
(5) This section has effect subject to paragraphs 10A(1)(a) and 18 of Schedule 4 (consequences of a member of the Tribunal being unable to continue after the proceedings have begun to be heard).
(6) Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.
(1) The Secretary of State may, after consulting the President and such other persons as he considers appropriate, make rules (in this Part referred to as “Tribunal rules”) with respect to proceedings before the Tribunal, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act.
(2) Tribunal rules may make provision with respect to matters incidental to or consequential upon appeals provided for by or under any Act to the Court of Appeal or the Court of Session in relation to a decision of the Tribunal.
(3) Tribunal rules may—
(a) specify qualifications for appointment as Registrar;
(b) confer functions on the President or the Registrar in relation to proceedings before the Tribunal; and
(c) contain incidental, supplemental, consequential or transitional provision.
(4) The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).
16 Transfers of certain proceedings to and from Tribunal
(1) The Lord Chancellor may by regulations—
(a) make provision enabling the court—
(i) to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and
(ii) to give effect to the determination of that issue by the Tribunal; and
(b) make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.
(2) The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(3) Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).
(4) The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.
(5) Rules of court may make provision in connection with the transfer from the Tribunal to the court of all or any part of a claim made in proceedings under section 47A of the 1998 Act.
(6) In this section—
“the court” means—
the High Court or the county court; or
the Court of Session or a sheriff court; and
“infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition has been or is being committed;
but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part.
For section 47 of the 1998 Act (third party appeals) there is substituted—
Third party appeals
47 (1) A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed.
(2) A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest.
(3) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.
(1) After section 47 of the 1998 Act there is inserted—
Monetary claims before Tribunal
47A (1) This section applies to—
(a) any claim for damages, or3
(b) any other claim for a sum of money,
which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.
(2) In this section “relevant prohibition” means any of the following—
(a) the Chapter I prohibition;
(b) the Chapter II prohibition;
(c) the prohibition in Article 81(1) of the Treaty;
(d) the prohibition in Article 82 of the Treaty;
(e) the prohibition in Article 65(1) of the Treaty establishing the European Union ;
(f) the prohibition in Article 66(7) of that Treaty.
(3) For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.
(4) A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.
(5) But no claim may be made in such proceedings—
(a) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and
(b) otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.
(6) The decisions which may be relied on for the purposes of proceedings under this section are —
(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
(b) a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(c) a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(d) a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or
(e) a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Union has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.
(7) The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—
(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);
(b) in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;
(c) in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49 or under those Regulations;
(d) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.
(8) The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—
(a) the period during which proceedings against the decision or finding may be instituted in the European Court; and
(b) if any such proceedings are instituted, the period before those proceedings are determined.
(9) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.
(10) The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.
(2) Section 47A applies to claims arising before the commencement of this section as it applies to claims arising after that time.
After section 47A of the 1998 Act (which is inserted by section 18), there is inserted—
Claims brought on behalf of consumers
47B (1) A specified body may (subject to the provisions of this Act and Tribunal rules) bring proceedings before the Tribunal which comprise consumer claims made or continued on behalf of at least two individuals.
(2) In this section “consumer claim” means a claim to which section 47A applies which an individual has in respect of an infringement affecting (directly or indirectly) goods or services to which subsection (7) applies.
(3) A consumer claim may be included in proceedings under this section if it is—
(a) a claim made in the proceedings on behalf of the individual concerned by the specified body; or
(b) a claim made by the individual concerned under section 47A which is continued in the proceedings on his behalf by the specified body;
and such a claim may only be made or continued in the proceedings with the consent of the individual concerned.
(4) The consumer claims included in proceedings under this section must all relate to the same infringement.
(5) The provisions of section 47A(5) to (10) apply to a consumer claim included in proceedings under this section as they apply to a claim made in proceedings under that section.
(6) Any damages or other sum (not being costs or expenses) awarded in respect of a consumer claim included in proceedings under this section must be awarded to the individual concerned; but the Tribunal may, with the consent of the specified body and the individual, order that the sum awarded must be paid to the specified body (acting on behalf of the individual).
(7) This subsection applies to goods or services which—
(a) the individual received, or sought to receive, otherwise than in the course of a business carried on by him (notwithstanding that he received or sought to receive them with a view to carrying on a business); and
(b) were, or would have been, supplied to the individual (in the case of goods whether by way of sale or otherwise) in the course of a business carried on by the person who supplied or would have supplied them.
(8) A business includes—
(a) a professional practice;
(b) any other undertaking carried on for gain or reward;
(c) any undertaking in the course of which goods or services are supplied otherwise than free of charge.
(9) “Specified” means specified in an order made by the Secretary of State, in accordance with criteria to be published by the Secretary of State for the purposes of this section.
(10) An application by a body to be specified in an order under this section is to be made in a form approved by the Secretary of State for the purpose.
(1) After section 58 of the 1998 Act there is inserted—
Findings of infringements
Findings of infringements
58A (1) This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—
(a) the Chapter I prohibition;
(b) the Chapter II prohibition;
(c) the prohibition in Article 81(1) of the Treaty;
(d) the prohibition in Article 82 of the Treaty.
(2) In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.
(3) The decisions are—
(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
(b) a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(c) a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.
(4) The periods mentioned in subsection (2) are—
(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);
(b) in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;
(c) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.
(2) Section 58A does not apply in relation to decisions made before the commencement of this section.
(3) In section 59(1) of that Act (interpretation), in the definition of “the court”, after “58” there is inserted “ , 58A ”.
22 Duty to make references in relation to completed mergers
(1) The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
(a) a relevant merger situation has been created; and
(b) the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
(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.
(2) The CMA may decide not to make a reference under subsection (1) if it believes that—
(a) the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ...; or
(b) any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
(3) No reference shall be made under subsection (1) if—
(za) the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
(a) the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7;
(b) the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
(c) the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 33 ...; or
(d) a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the CMA under section 56(1); or
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) A reference under this section shall, in particular, specify—
(a) the enactment under which it is made; and
(b) the date on which it is made.
(5) The references in this section to the creation of a relevant merger situation shall be construed in accordance with section 23, the reference in subsection (2) of this section to relevant customer benefits shall be construed in accordance with section 30 and the reference in subsection (3) of this section to a matter to which a notice under section 42(2) relates being finally determined under Chapter 2 shall be construed in accordance with section 43(4) and (5).
(6) In this Part “market in the United Kingdom” includes—
(a) so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and
(b) any market which operates only in a part of the United Kingdom;
and references to a market for goods or services include references to a market for goods and services.
(7) In this Part “the decision-making authority” means—
(a) in the case of a reference or possible reference under this section or section 33 ..., the CMA; and
(b) in the case of a notice or possible notice under section 42(2) or 59(2) or a reference or possible reference under section 45 or 62, the CMA or (as the case may be) the Secretary of State.
(1) For the purposes of this Part, a relevant 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; and
(b) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £100 million.
(2) 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; ...
(b) as a result, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent ; 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.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
(3) The condition mentioned in this subsection is that, in relation to the supply of goods of any description, at least one-quarter of all the goods of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom—
(a) are supplied by one and the same person or are supplied to one and the same person; or
(b) are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.
(4) The condition mentioned in this subsection is that, in relation to the supply of services of any description, the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, is to the extent of at least one-quarter—
(a) supply by one and the same person, or supply for one and the same person; or
(b) supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.
(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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).
(5) For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3) or (4) , or of 33 per cent mentioned in subsection (4D), is fulfilled with respect to goods or (as the case may be) services of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.
(6) References in subsections (3) , (4), (4D) and (4F)(c) to the supply of goods or (as the case may be) services shall, in relation to goods or services of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
(a) as references to any of those forms of supply taken separately;
(b) as references to all those forms of supply taken together; or
(c) as references to any of those forms of supply taken in groups.
(7) For the purposes of subsection (6) the decision-making authority may treat goods or services as being the subject of different forms of supply whenever—
(a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
(b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.
(8) The criteria for deciding when goods or services can be treated, for the purposes of this section, as goods or services of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.
(9) For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—
(a) in the case of a reference which is treated as having been made under section 22 by virtue of section 37(2), such time as the CMA may determine; and
(b) in any other case, immediately before the time when the reference has been, or is to be, made.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) For the purposes of section 23 two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within this section if—
(a) the two or more enterprises ceased to be distinct enterprises before the day on which the reference relating to them is to be made and did so not more than four months before that day; or
(b) notice of material facts about the arrangements or transactions under or in consequence of which the enterprises have ceased to be distinct enterprises has not been given in accordance with subsection (2).
(2) Notice of material facts is given in accordance with this subsection if—
(a) it is given to the CMA prior to the entering into of the arrangements or transactions concerned or the facts are made public prior to the entering into of those arrangements or transactions; or
(b) it is given to the CMA, or the facts are made public, more than four months before the day on which the reference is to be made.
(3) In this section—
“made public” means so publicised as to be generally known or readily ascertainable; and
“notice” includes notice which is not in writing.
(1) The CMA and the persons carrying on the enterprises which have or may have ceased to be distinct enterprises may agree to extend by no more than 20 working days the four month period mentioned in section 24(1)(a) or (2)(b).
(2) The CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it considers that any of those persons has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
(3) An extension under subsection (2) shall come into force when notice of the extension is given and end—
(a) when the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
(b) if earlier, the CMA cancels the extension.
(4) The CMA may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if it is seeking undertakings from any of those persons under section 73.
(5) An extension under subsection (4) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—
(a) the giving of the undertakings concerned;
(b) the expiry of the period of 10 working days beginning with the first day after the receipt by the CMA of a notice from the person who has been given a notice under subsection (4) and from whom the undertakings are being sought stating that he does not intend to give the undertakings; or
(c) the cancellation by the CMA of the extension.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) Subject to subsections (10) and (11), where the four month period mentioned in section 24(1)(a) or (2)(b) is extended or further extended by virtue of this section in relation to a particular case, any reference to that period in section 24 or the preceding provisions of this section shall have effect in relation to that case as if it were a reference to a period equivalent to the aggregate of the period being extended and the period of the extension (whether or not those periods overlap in time).
(10) Subsection (11) applies where—
(a) the four month period mentioned in section 24(1)(a) or (2)(b) is further extended;
(b) the further extension and at least one previous extension is made under one or more of subsections (2) and (4); and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(11) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (10)(c) shall be disregarded.
(12) No more than one extension is possible under subsection (1).
(1) For the purposes of this Part any two enterprises cease to be distinct enterprises if they are brought under common ownership or common control (whether or not the business to which either of them formerly belonged continues to be carried on under the same or different ownership or control).
(2) Enterprises shall, in particular, be treated as being under common control if they are—
(a) enterprises of interconnected bodies corporate;
(b) enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or
(c) an enterprise carried on by a body corporate and an enterprise carried on by a person or group of persons having control of that body corporate.
(3) A person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body corporate, or the policy of any person in carrying on an enterprise but without having a controlling interest in that body corporate or in that enterprise, may, for the purposes of subsections (1) and (2), be treated as having control of it.
(4) For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, a person or group of persons may be treated as bringing an enterprise under his or their control if—
(a) being already able to control or materially to influence the policy of the person carrying on the enterprise, that person or group of persons acquires a controlling interest in the enterprise or, in the case of an enterprise carried on by a body corporate, acquires a controlling interest in that body corporate; or
(b) being already able materially to influence the policy of the person carrying on the enterprise, that person or group of persons becomes able to control that policy.
(1) Subsection (2) applies in relation to any arrangements or transaction—
(a) not having immediate effect or having immediate effect only in part; but
(b) under or in consequence of which any two enterprises cease to be distinct enterprises.
(2) The time when the parties to any such arrangements or transaction become bound to such extent as will result, on effect being given to their obligations, in the enterprises ceasing to be distinct enterprises shall be taken to be the time at which the two enterprises cease to be distinct enterprises.
(3) In accordance with subsections (1) and (2) (but without prejudice to the generality of those subsections) for the purpose of determining the time at which any two enterprises cease to be distinct enterprises no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
(4) Subsections (1) to (3) are subject to subsections (5) to (8) and section 29.
(5) The decision-making authority may, for the purposes of a reference, treat successive events to which this subsection applies as having occurred simultaneously on the date on which the latest of them occurred.
(6) Subsection (5) applies to successive events—
(a) which occur within a period of two years under or in consequence of the same arrangements or transaction, or successive arrangements or transactions between the same parties or interests; and
(b) by virtue of each of which, under or in consequence of the arrangements or the transaction or transactions concerned, any enterprises cease as between themselves to be distinct enterprises.
(7) The decision-making authority may, for the purposes of subsections (5) and (6), treat such arrangements or transactions as the decision-making authority considers appropriate as arrangements or transactions between the same interests.
(8) In deciding whether it is appropriate to treat arrangements or transactions as arrangements or transactions between the same interests the decision-making authority shall, in particular, have regard to the persons substantially concerned in the arrangements or transactions concerned.
(1) For the purposes of section 23 the value of the turnover in the United Kingdom of the enterprise being taken over shall be determined by taking the total value of the turnover in the United Kingdom of the enterprises which cease to be distinct enterprises and deducting—
(a) the turnover in the United Kingdom of any enterprise which continues to be carried on under the same ownership and control; or
(b) if no enterprise continues to be carried on under the same ownership and control, the turnover in the United Kingdom which, of all the turnovers concerned, is the turnover of the highest value.
(2) For the purposes of this Part (other than section 121(4)(c)(ii)) the turnover in the United Kingdom of an enterprise shall be determined in accordance with such provisions as may be specified in an order made by the Secretary of State.
(3) An order under subsection (2) may, in particular, make provision as to—
(a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
(b) the date or dates by reference to which an enterprise’s turnover is to be determined;
(c) the connection with the United Kingdom by virtue of which an enterprise’s turnover is turnover in the United Kingdom.
(4) An order under subsection (2) may, in particular, make provision enabling the decision-making authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (3)).
(5) The CMA shall—
(a) keep under review the sums for the time being mentioned in section 23(1)(b) , (2)(c) and (4E); and
(b) from time to time advise the Secretary of State as to whether the sums are still appropriate.
(6) The Secretary of State may by order amend section 23(1)(b) , (2)(c) or (4E) so as to alter any of the sums for the time being mentioned there.
(1) Where an enterprise is brought under the control of a person or group of persons in the course of two or more transactions (in this section a “series of transactions”) to which subsection (2) applies, those transactions may, if the decision-making authority considers it appropriate, be treated for the purposes of a reference as having occurred simultaneously on the date on which the latest of them occurred.
(2) This subsection applies to—
(a) any transaction which—
(i) enables that person or group of persons directly or indirectly to control or materially to influence the policy of any person carrying on the enterprise;
(ii) enables that person or group of persons to do so to a greater degree; or
(iii) is a step (whether direct or indirect) towards enabling that person or group of persons to do so; and
(b) any transaction by virtue of which that person or group of persons acquires a controlling interest in the enterprise or, where the enterprise is carried on by a body corporate, in that body corporate.
(3) Where a series of transactions includes a transaction falling within subsection (2)(b), any transaction occurring after the occurrence of that transaction is to be disregarded for the purposes of subsection (1).
(4) Where the period within which a series of transactions occurs exceeds two years, the transactions that may be treated as mentioned in subsection (1) are any of those transactions that occur within a period of two years.
(5) Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of this section to determine—
(a) whether an enterprise is brought under the control of a person or group of persons; and
(b) whether a transaction is one to which subsection (2) applies;
as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
(6) In determining for the purposes of this section the time at which any transaction occurs, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
(1) For the purposes of this Part a benefit is a relevant customer benefit if—
(a) it is a benefit to relevant customers in the form of—
(i) lower prices, higher quality or greater choice of goods or services in any market in the United Kingdom (whether or not the market or markets in which the substantial lessening of competition concerned has, or may have, occurred or (as the case may be) may occur); or
(ii) greater innovation in relation to such goods or services; and
(b) the decision-making authority believes—
(i) in the case of a reference or possible reference under section 22 or 45(2), as mentioned in subsection (2); and
(ii) in the case of a reference or possible reference under section 33 or 45(4), as mentioned in subsection (3).
(2) The belief, in the case of a reference or possible reference under section 22 or section 45(2), is that—
(a) the benefit has accrued as a result of the creation of the relevant merger situation concerned or may be expected to accrue within a reasonable period as a result of the creation of that situation; and
(b) the benefit was, or is, unlikely to accrue without the creation of that situation or a similar lessening of competition.
(3) The belief, in the case of a reference or possible reference under section 33 or 45(4), is that—
(a) the benefit may be expected to accrue within a reasonable period as a result of the creation of the relevant merger situation concerned; and
(b) the benefit is unlikely to accrue without the creation of that situation or a similar lessening of competition.
(4) In subsection (1) “relevant customers” means—
(a) customers of any person carrying on an enterprise which, in the creation of the relevant merger situation concerned, has ceased to be, or (as the case may be) will cease to be, a distinct enterprise;
(b) customers of such customers; and
(c) any other customers in a chain of customers beginning with the customers mentioned in paragraph (a);
and in this subsection “customers” includes future customers.
33 Duty to make references in relation to anticipated mergers
(1) The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
(b) the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
(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.
(2) The CMA may decide not to make a reference under subsection (1) if it believes that—
(a) the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference ...;
(b) the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference ...; or
(c) any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.
(3) No reference shall be made under subsection (1) if—
(za) the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;
(a) the making of the reference is prevented by section . . . 74(1) ... or paragraph 4 of Schedule 7;
(b) the CMA is considering whether to accept undertakings under section 73 instead of making such a reference;
(c) the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22 ...; or
(d) a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the CMA under section 56(1); or
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) A reference under this section shall, in particular, specify—
(a) the enactment under which it is made; and
(b) the date on which it is made.
34 Supplementary provision in relation to anticipated mergers
(1) The Secretary of State may by order make such provision as he considers appropriate about the operation of sections 27 and 29 in relation to—
(a) references under this Part which relate to arrangements which are in progress or in contemplation; or
(b) notices under section 42(2) or 59(2) which relate to such arrangements.
(2) An order under subsection (1) may, in particular—
(a) provide for sections 27(5) to (8) and 29 to apply with modifications in relation to such references or notices or in relation to particular descriptions of such references or notices;
(b) enable particular descriptions of events, arrangements or transactions which have already occurred—
(i) to be taken into account for the purposes of deciding whether to make such references or such references of a particular description or whether to give such notices or such notices of a particular description;
(ii) to be dealt with under such references or such references of a particular description or under such notices or such notices of a particular description.
(1) In carrying out its function of deciding whether to make a reference under section 22(1) or 33(1), the CMA shall, within the initial period—
(a) decide whether the duty to make a reference under the subsection applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and
(b) inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.
(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.
(2) Nothing in this section prevents the CMA from making a reference under section 22(1) or 33(1) in the event that—
(a) it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but
(b) no such undertakings are offered or accepted.
(3) In this section—
“the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with—
where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and
in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference;
...
(4) For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to—
(a) arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or
(b) the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The CMA may extend the initial period for the purposes of section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question.
(2) In subsection (1), “relevant person” means—
(a) any person carrying on any of the enterprises concerned;
(b) any person who (whether alone or as a member of a group) owns or has control of any such person; or
(c) any officer, employee or agent of any person mentioned in paragraph (a) or (b).
(3) For the purposes of subsection (2), a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
(4) Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) An extension under subsection (1) or (4) comes into force when published under section 107.
(7) An extension under subsection (1) continues in force until—
(a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
(b) the CMA publishes its decision to cancel the extension.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) An extension of the initial period for the purposes of section 34ZA(1) may be made under each of subsections (1) or (4) of section 34ZB.
(2) No more than one extension is possible under section 34ZB(4).
(3) Where a period is extended or further extended under section 34ZB(1) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
(4) Subsection (5) applies where—
(a) the period mentioned in section 34ZA(1) is further extended;
(b) the further extension and at least one previous extension is made under subsection (1) of section 34ZB; and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
(6) The Secretary of State may by order do either or both of the following—
(a) amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period;
(b) amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period.
(7) But no alteration may be made by virtue of subsection (6) which results in—
(a) the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or
(b) the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.
(8) Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .